Sri M.Vengaiah

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:

AT VIJAYAWADA

PRESENT: SRI M.VENGAIAH, III Additional District Judge, FAC II Additional District Judge,

Friday, this the 30th day of June, 2017

O.S.No.299/2013

Between:- 1.Adduri Santhi Kumari, 2.Adduri Kavya, D/o Late Adduri Thaviteswara Rao, Hindu 17 yrs, student, D.No.9-35-28/A, Illipilla Narasimha Rao street, Kothapet, vijayawada. (Deleted as the 2nd plaintiff declared as major as per theorders,dt:23.01.2017madein I.A.No.148/2017) 3.Adduri Venkata Kishore, (being minor represented by his mother and natural guardian/next friend, Adduri Santhi Kumari, W/o Late Adduri Thavitewara Rao, Hindu, 38 yrs, house wife, r/o Kothapet, Vijayawada. ….Plaintiffs. AND 1.Adduri Lakshmana Rao, 2.Adduri Mohana Rao, 3.M/s Muditha Paper Traders, 4.Jeketi Sarojini 5.Puli Jaya, 6.Kalangi Ravi, 7.Kolla Ganesh, …. Defendants,

This suit coming in the presence of Sri.J.R.Satyanarayana Prasad, Advocate for plaintiffs and Sri Rampilla Srinivasa Rao, Advocate for defendants 1 & 2 and Sri Kanteti Sridhar, Advocate for defendants 6 & 7 and defendants 3,4 & 5 remained exparte and the matter having stood over for consideration till this day, the court delivered the following:

JUDGMENT

This is a suit filed by the 1st plaintiff on her behalf and on behalf of the plaintiffs 2 and 3 being minors represented by her seeking partition of the property described in the schedule annexed to the plaint which is referred to as the plaint schedule property for short ‘schedule property’ into four equal shares and to allot one such share to the plaintiffs 1 to 3 by metes and bounds, with further prayer to pass final decree and separate possession of their share by appointing a commissioner and for recovery of Rs.61,500/- towards rents/mesne profits towards the share of the plaintiffs from defendants 1 and 2 for one year from August, 2012 to July, 2013 and for future mesne profits from the date of filing of the suit till the date of delivery of possession.

2)Pleadings briefly stated one as under:-

That one Adduri Thaviteswara Rao is the husband of the 1st plaintiff and father of plaintiffs 2 and 3. Adduri Satyanarayana Rao,

Adduri Thaviteswara Rao, Adduri Divakara Rao and defendants 1 and 2 are the brothers and are the children of late Adduri Ramulu.

The schedule property admittedly belonged to the said

Taviteswara Rao and his four brothers. The defendants 1 and 2 for short ‘D1 and D2’ respectively and their three brothers were in joint possession and enjoyment with equal rights being ancestral property from the time of death of their father Ramulu on 10.04.2007.

While so, the eldest brother A.Satyanarayana Rao relinquished his 1/5th undivided share in the schedule property in favour of his brothers D1 and D2, Adduri Thaviteswara Rao and Divakara Rao through a registered relinquishment deed dt.12.05.2008 executed by him and his daughter Meena Kumari and son Yugandhar vide Document

No.2557/2008 on the file of District Registrar, Vijayawada.

Consequently, the share of Adduri Thaviteswara Rao, Divakar, D1 and

D2 got enlarged to 1/4th share each. Thus, Taviteswara Rao, Divakara

Rao, D1 and D2 were in joint possession and enjoyment of the same.

The schedule property was in joint occupation of Taviteswara Rao,

Divakara Rao, D1 and D2 and they were residing therein besides letting some portions of the building to five tenants i.e., the defendants 3 to 7 herein for short ‘D3 to D7’ respectively and D3 to D7 have been paying total rents of Rs.20,500/- per month and all the brothers i.e.,

Taviteswara Rao, Divakara Rao, D1 and D2 were enjoying the rents equally.

That while so, the 4th brother Taviteswara Rao died intestate on 7.8.2012 leaving behind the plaintiffs being his wife and children as his legal heirs. Thus, the plaintiffs are having joint 1/4th share in the schedule property and are entitled to 1/4th share of rents from the date of death of Taviteswara Rao. Subsequently, the last brother Divakara

Rao sold away his undivided 1/4th share in the schedule property to D1 and D2 together as per registered sale deed dt.16.11.2012 vide

Document No.7082/2012 on the file of Sub-Registrar, Vijayawada.

Thus, D1 and D2 are having 3/4th share in the schedule property while the plaintiffs are having 1/4th share in the said property. Plaintiffs are also entitled to 1/4th share in the rents paid by D3 to D7 which were collected by D1 and D2 and thus the plaintiffs are entitled to Rs.5,125/- p.m., from August, 2012 which D1 and D2 have not paid inspite of the repeated demands made by the plaintiffs. So, the plaintiffs do not want to continue joint possession of the schedule property with D1 and D2 and get their share separately. The plaintiffs have been demanding the

D1 and D2 to partition the schedule property and distribute the rents but the D1 and D2 are postponing the same without proper response.

It is further submitted that the plaintiffs got issued legal notice dt.15.5.2013 to D1 and D2 requesting for partition of the schedule property into four equal shares and to give one such share by metes and bounds to the plaintiffs and also further demanded to pay rents at

Rs.5,125/- p.m., from August, 2012 to the plaintiffs by marking a copy of the notice to the D3 to D7, who are tenants in the schedule building.

D1 to D3 and D7 received the said notice under postal acknowledgments.

D4 to D6 evaded to receive the said notice and the same were returned unserved with an endorsement ‘not claimed’. Inspite of issuing said notice D1 and D2 without coming forward for partition got issued a reply notice dt.27.5.2013 with false contentions. While denying specifically the averments made in the reply notice got issued by D1 and D2, the plaintiffs filed the suit for partition and recovery of rents by adding D3 to

D7 who were in possession of the portions of the schedule property as parties to the suit.

3)D1 and D2 appeared through same counsel and filed written statement in the name of 1stdefendant denying various allegations/submissions made in the plaint putting the plaintiffs to strict proof of the averments made in the plaint opposing the relief claimed, which was adopted by D2 by filing a memo to that effect pleading briefly stated as under:-

It is submitted that admittedly there are five tenants and the rents paid by them are not Rs.20,500/- in total. But D3 paid rents @

Rs.5,000/- p.m., from 12.07.2011 to 12.02.2012, D4 paid rent at

Rs.1,050/- p.m., from 12.07.2011 to 12.02.2012, D5 paid rent @

Rs.1,050/- p.m., from 12.07.2011 to 12.02.2012, D6 paid rent @

Rs.650/- p.m., from 12.07.2011 to 12.02.2012 and D7 paid rent @

Rs.1,050/- p.m., from 12.07.2011 to 12.02.2012 and thus the total rents from five tenants i.e., D3 to D5 is only Rs.8,800/-, for which this defendant has been depositing 1/4th share of the plaintiffs in the separate account No.18781 maintained by this defendant in Karnataka

Bank, I Town, Vijayawada. The rents have been enhanced, whereby D3 is paying rent @ Rs.6,000/- p.m., from 12.3.2012 to till date, D4 paid rent @ Rs.1,200/- p.m., from 12.3.2012 to till date, D5 paid rent @

Rs.1,200/- p.m., from 12.3.2012 to till date, D6 paid rent @ Rs.800/- p.m., from 12.3.2012 to till date and D7 paid rent @ Rs.1,200/- p.m., from 12.3.2012 to till date and thus the total rents D3 to D7 are paying is Rs.10,400/- only for which this defendant has been depositing 1/4th share of the plaintiffs in the separate account No.18781 maintained by this defendant. Thus, the total share of the plaintiffs from 12.7.2011 to till date is Rs.54,400/- only, which is readily available in the separate account No.18781 maintained by this defendant in Karnataka Bank,

Vijayawada and if the plaintiffs intended to receive the amount they can receive the same by following the procedure as required by law. It is further submitted that the 1st plaintiff and the brother of this defendant viz., Divakara Rao had approached D1 and D2 and offered to sell them respective shares of property for value admitted by them as the property was not suitable for them and not divisible, for which the defendants agreed to purchase the same and as such Divakara Rao has executed a regular registered sale deed in favour of D1 and D2 after receipt of valid consideration as agreed. But in fact plaintiffs 2 and 3 being minors their share in the property of their father Taviteswara Rao could not be registered without prior sanction of the Court and the same is intimated by D1 and D2 to the 1st plaintiff but the 1st plaintiff insisted D1 and D2 to get the property registered as D1 and D2 did not accept for getting the registration without sanction of the Court for the respective shares of the minors and asked the 1st plaintiff to file permission petition before the

Court and get proper orders, so as to enable them to get the share of the plaintiffs registered. By a touch of threat to get their desire fruitful the 1st plaintiff by an experimentary bliss got issued the legal notice knowing the fact that the property which was shown in the notice was not possible for division and therefore, by knowing the same and to get price suitable at her desire offered to sell the property to D1 and D2 as stated above.

Therefore, D1 and D2 got issued a suitable reply notice dt.27.5.2013 to the notice dt.15.5.2013 got issued by the plaintiffs.

That there is no cause of action to file the suit and the cause of action shown in the plaint is not correct and the suit is not maintainable. The plaintiffs did not approach the Court with clean hands. The particulars of the suit claim are not true and correct and the court fee paid by the plaintiffs is not true and correct and therefore, the suit is liable to be dismissed and prayed to dismiss the suit with compensatory costs.

4)D3 remained exparte.

5)D4 appeared through counsel and filed written statement denying the averments made in the plaint putting the plaintiffs to strict proof of all those allegations, which are not specifically admitted herein, contending that plaintiffs are put to strict proof that this defendant is paying rent of Rs.2,400/- and that the plaintiffs are put to strict proof that this defendant is necessary party to this suit as no relief is claimed against this defendant and that the particulars of the suit are true and correct and the court fee paid by them is correct, contending that this defendant has paid rent @ Rs.1,050/- p.m., from 12.7.2011 to 12.2.2012 and subsequently the monthly rent has been enhanced to Rs.1,200/- p.m., from 12.3.2012 to till date and that there is no cause of action for the suit against this defendant and the said cause of action is invented and created with a view to get wrongful gain and to cause wrongful loss to this defendant and the suit is liable to be dismissed with compensatory costs and prayed to dismiss the suit.

6)D5 also remained expare.

7)D6 appeared through counsel and filed written statement contending that this defendant has paid rent @ Rs.650/- p.m., from 12.7.2011 to 12.2.2012 and subsequently the monthly rent has been enhanced to Rs.800/- from 12.3.2012 to till date and the allegations contra are denied and the plaintiffs are put to strict proof of the same, contending further that there is no cause of action for the suit against this defendant and the said cause of action is created, for the purpose of maintaining their suit with a view to have wrongful gain for themselves and to cause wrongful loss to this defendant and as such the suit is liable to be dismissed. It is further contend that the suit is bad for misjoinder of the parties and prayed to dismiss the suit with costs.

8)Similarly, the 7thdefendant filed written statement contending that this defendant has paid rent @ Rs.1,050/- p.m., from 12.7.2011 to 12.2.2012 and subsequently the monthly rent has been enhanced to Rs.1,200/- p.m., from 12.3.2012 to till date and the allegations contra are denied and the plaintiffs are put to strict proof of all those allegations, which are not specifically admitted herein. It is further contended that there is no cause of action to file the suit against this defendant and the cause of action is invented and created for the purpose of maintaining the suit with a view to have wrongful gain to themselves and to cause wrongful loss to this defendant and that the suit is bad for misjoinder of parties and it is liable to be dismissed and prayed to dismiss the suit with exemplary costs.

9)Based on the pleadings, material available on record and on hearing both sides, my learned predecessor settled the following issues for determination of the suit:-

1) Whether the plaintiffs are entitled for partition of the plaint schedule property?

2) Whether the plaintiffs are entitled for past mesne profits as prayed?

3) Whether the plaintiffs are entitled for future mesne profits?

4) To what relief?

10)During the course of trial, on behalf of the plaintiffs the 1st plaintiff was examined as P.W.1 and Exs.A1 to A12 were marked.

Similarly, on behalf of the defendants the 1st defendant was examined as

D.W.1, the 2nd defendant was examined as D.W.2 and the 3rd parties were examined as D.W.3 and D.W.4 on behalf of the D1 and D2 and D6 was examined as D.W.5 and D7 was examined as D.W.6 and Ex.B1 was marked.

11)Heard both sides.

ISSUE NO.1 - Whether the plaintiffs are entitled for partition of the

plaint schedule property?

12)It is an admitted fact that the schedule property originally belonging to Adduri Ramulu and that he died intestate on 10.4.2007 and that his sons Satyanarayana, Lakshmana Rao, Mohana Rao, Taviteswara

Rao and Divakara Rao in that order succeeded to the estate of Adduri

Ramulu, including the schedule property. It is also an admitted fact that the 1st plaintiff is the wife and the 2nd plaintiff is the daughter and the 3rd plaintiff is the son of Taviteswara Rao. It is also an admitted fact that

Taviteswara Rao died intestate on 7.8.2012 leaving behind the plaintiffs alone as the legal heirs to his estate including his right in the schedule property. It is also an admitted fact that the sons of Adduri Ramulu viz.,

Satyanarayana Rao, Lakshmana Rao-the 1st defendant herein, Mohana

Rao-the 2nd defendant herein, Taviteswara Rao, the husband of the 1st plaintiff and father of plaintiffs 2 and 3 and Divakara Rao succeeded to his estate, including the schedule property and they are in possession and enjoyment of the schedule property jointly since the death of

Taviteswara Rao on 7.8.2012 as evidenced by the death certificate Ex.A3, which is otherwise not in dispute. It is also not in dispute that after the death of Taviteswara Rao the wife and children of Taviteswara Rao who are the plaintiffs herein and the brothers of Taviteswara Rao came into possession of the schedule property and were enjoying jointly. Thus, the sons of Adduri Ramulu got 1/5th share each. It is also an admitted fact that while so Adduri Satyanarayana Rao relinquished his 1/5th undivided share in the schedule property in favour of his brothers D1 and D2,

Taviteswara Rao and Divakara Rao for consideration through a relinquishment deed dt.12.5.2008 executed by said Satyanarayana Rao and his daughter Meena Kumari and his son Yugandhar under the original of Ex.A1. As per the recitals of Ex.A1, the certified copy of the relinquishment deed the said Satyanarayana Rao and his son and daughter while referring to his 1/5th share in the schedule property along with 1/5th share of each of his brothers, since the property is not sufficient for partition he relinquished his undivided 1/5th share in favour of his brothers by receiving consideration of Rs.11, 32,000/- paid by his brothers and since his brothers required the said Satyanarayana

Rao to execute relinquishment deed along with his son and daughter, the said Satyanarayana Rao joined his son and daughter and executed the relinquishment deed under the original of Ex.A1. Consequently, D1, D2 and their brothers Adduri Taviteswara Rao and Adduri Divakara Rao became owners of the schedule property to the extent of undivided 1/4th share each. It is also not in dispute that subsequently after the death of

Taviteswara Rao their brother Divakara Rao sold away his undivided 1/4th share in the schedule property to D1 and D2 through a registered sale deed dt.16.11.2012, certified copy of which was filed and marked as

Ex.A2. As per the recitals of Ex.A2 the brother of D1 and D2 namely

Divakara Rao executed the sale deed in respect of his 1/4th undivided share in the schedule property in favour of D1 and D2 for a consideration of Rs.14,60,000/- while referring to the rights of the said

Divakara Rao and his brothers D1, D2 and Taviteswara Rao @ 1/4th each to purchase other property to acquire more income etc., The recitals of

Ex.A2 also indicate that the five sons of Adduri Ramulu succeeded to the estate of Adduri Ramulu including the schedule property and that they got 1/5th share each and that due to one of their brothers Satyanarayana

Rao relinquished his 1/5th undivided share in favour of his brothers for consideration etc, they acquired 1/4th share each. Thus, D1 and D2 became entitled to 3/4th share and the plaintiffs as legal heirs of

Taviteswara Rao became entitled to 1/4th share in the schedule property.

It is also not in dispute that they continued to be in joint possession till filing of the suit and it was in fact very much indicated from the very pleadings of the defendants that they are depositing the rents towards the share of plaintiffs in the account of D1, the legality of which is a matter for consideration. Even otherwise what was referred herein was an admitted fact. Therefore, the plaintiffs are proved to be the joint owners of the schedule property to the extent of 1/4th share along with

D1 and D2. The 1st plaintiff who was examined as P.W.1 deposed both in proof of their right acquired in the schedule property through her husband and their joint enjoyment including demand for partition and the resistance from the defendants. The plaintiffs got issued a legal notice to D1 and D2 demanding for partition while referring their right in the schedule property as legal heirs of Taviteswara Rao to the extent of 1/4th share claiming their joint possession and enjoyment and the copy of the legal notice is marked as Ex.A4 which is proved to have been served on D1 to D3 and D7 as per the postal acknowledgments Exs.A5 to

A8. However, the notice sent to D4 to D6 was returned unserved with an endorsement ‘unclaimed’. It is also an admitted fact that D1 and D2 got issued a reply notice marked as Ex.A12 simply denying the allegations but disputing the rents being paid by D3 to D7 as tenants in the notice and also in the present suit stating further that 1/4th share of rents from 12.6.2011 till date is Rs.54,400/-, which is readily available in the separate account No.18781 maintained by D1 with a further claim that

Adduri Divakara Rao and the plaintiffs approached D1 and D2 and offered to sell their respective shares in the schedule property for a value admitted by him as the property is not suitable for them and not divisible, for which they agreed to purchase and as such the said

Divakara Rao has executed a regular sale deed in favour of D1 and D2 after receipt of valuable consideration as agreed but since the plaintiffs 2 and 3 herein are minors their share in the property of their father could not be alienated without prior sanction from the Court and the same is intimated by D1 and D2 to the 1st plaintiff herein but she insisted D1 and D2 to get the property registered and as D1 and D2 did not accept for getting registration without sanction from the Court in respect of the shares of the plaintiffs 2 and 3 being minors asked the 1st plaintiff to file a petition in the Court seeking permission and get proper orders to enable them to execute sale deed on behalf of the plaintiffs 2 and 3 but by touch of threat to get their desire fruitful the 1st plaintiff got issued the legal notice adding further that the 1st plaintiff is aware of the fact that the schedule property is not possible for division and by knowing the same and to get suitable price as desired by her offered to sell to D1 and

D2 and therefore, by this notice called upon the 1st plaintiff to get sanction or permission from the Court to sell the share of minors to enable them to obtain sale deed and if the 1st plaintiff still persists and insists for ill healthy litigation it must be at her risk only and she is liable and responsible for all the costs and consequences including the costs of reply notice. The pleadings of D1 and D2 went on the same lines.

Further, for the first time during the course of trial the defendants sought to prove as if D1 paid Rs.6,50,000/- to their elder brother

Lakshmana Rao on behalf of the husband of 1st plaintiff as on the date of execution of relinquishment deed and as such Adduri Divakara Rao has executed regular registered sale deed in favour of D1 and D2 after receipt of valid consideration and therefore, plaintiffs are not entitled to seek partition. The 1st defendant examined as D.W.1 deposed to that effect.

Similarly, the 2nd defendant examined as D.W.2 also deposed on the same lines and even D.W.3 and D.W.4 who were examined on behalf of

D1 and D2 also deposed to that effect as if the 1st defendant paid the amount of Rs.6,50,000/- on behalf of his deceased brother on 12.5.2008 as his eldest brother Lakshmana Rao relinquished his rights in the schedule property by selling his agricultural land etc., However, the relinquishment deed Ex.A1 executed by Satyanarayana Rao does not disclose that the consideration was paid by either D1 or any of his brother, but on the other hand it refers that he received consideration from all his brothers i.e., D1 and D2 and his brothers Taviteswara Rao and Divakara Rao and it was the document dt.12.5.2008. It is not the end of the matter. Even in the sale deed executed by Divakara Rao under the original of Ex.A2 there is no reference to the said effect. On the other hand, the recitals of Ex.A2 show that the said Divakara Rao and his three brothers D1, D2 and Taviteswara Rao got 1/4th undivided share each in the schedule property. It was the latest of all the documents i.e., the registered sale deed dt.16.11.2012 and it was proved to have been executed by Divakara Rao in respect of his 1/4th share and since their brother Taviteswara Rao died by that time it was referred in the sale deed that since Taviteswara Rao died his 1/4th share belongs to his legal heirs. Therefore, when that is the case, the claim of the defendants 1 and 2 that Taviteswara Rao relinquished his share for consideration has no merits. Even otherwise, the pleadings and evidence of D1 and D2 sufficiently proved the right, title and possession of plaintiffs through Taviteswara Rao to the extent of 1/4th undivided share in the schedule property along with D1 and D2. In this connection it is the evidence of 1st defendant as D.W.1.

“It is true the plaintiffs have 1/4th share in the plaint schedule property. I am not having any proof that I paid the amount by way of cash to my elder brother at the time of relinquishment of his right on behalf of Taviteswara Rao……. I never demanded Taviteswara Rao during his lifetime or his legal heirs plaintiffs 1 to 3 to return the amount of

Rs.6,50,000/- I paid.”

So far as the further claim of D1 and D2 that the plaintiffs agreed to sell their share along with Divakara Rao it is the evidence of D.W.1 that the plaintiffs did not execute any sale agreement in their favour. He denied the allegations contra. Similarly, it is the evidence of the 2nd defendant as D.W.2.

“It is true D1, myself, Adduri Taviteswara Rao, Adduri Divakara

Rao and Satyanarayana Rao have equal rights in the suit property. It is true, Satyanarayanarao relinquished his 1/5th share to D1, myself,

Taviteswara Rao and Divakara Rao. It is true the plaintiffs are the wife and children of Taviteswara Rao. Ex.A1 is the said relinquishment deed executed by Satyanarayana. It is true after such relinquishment myself,

D1, Taviteswara Rao and Divakara Rao got 1/4th share each It is not true to suggest that after the death of Taviteswara Rao his share was succeeded by the plaintiffs. It is true, under Ex.A2 Divakararao executed the sale deed in favour of myself and D1 with regard to his share. It is true, in Ex.A2 it is recited that the 1/4th share of Taviteswara Rao was succeeded by the plaintiffs. I am not having any proof for the payment of

Rs.6,50,000/- by D1 as referred in para 8 of my affidavit-in-chief…… It is true the 1st plaintiff never offered to sell her share in suit property.

Witness volunteers that she got no right.”

Therefore, in the light of the evidence of D.W.1 and D.W.2 the evidence of

D.Ws.3 and 4 has lost its relevance. Thus, it is proved that the plaintiffs have got 1/4th share in the schedule property and that they are in joint possession and enjoyment of their 1/4th share along with D1 and D2. It is also not in dispute that D3 to D7 were the tenants of the schedule property in various portions paying rents according to the extent of the plaintiffs leased to them at different rates and D1 and D2 stopped payment of rents to the plaintiffs. It is not the case of D3 to D7 that they paid rents to the plaintiffs at any point of time. However, according to

D1 and D2 they paid rents to their brother and after his death the rent payable to the plaintiffs was credited in the account of D1. Therefore, the plaintiffs have rightly issued notice and filed the suit. During the course of arguments the learned counsel for D1 and D2 took a feeble plea that as per the partition deed executed among five brothers in respect of the lands under Ex.B1 there was recital to the effect that there was no property left joint for division among D1 and D2 and their brothers and therefore, she sought to contend that there was no property available for partition and that the plaintiffs have no right. In proof of the same they relied upon the recitals in the partition deed dt.22.2.2009 executed among A.Satyanarayana and his four brothers dividing their property into five shares as A, B, C, D and E schedules allotting the properties fell to their share as per the schedules. It appears that it was in respect of the lands. The partition deed was executed under Ex.B1. It appears that as per the recitals in Ex.B1 that except the property shown in A to E schedules there is no other joint properties for division and that there were no debts payable or debts recoverable etc., It may be a fact that this recital was incorporate as a formality since the document executed by Satyanarayana Rao by relinquishment of his share under

Ex.A1 referred to everything including the rights of all the brothers in the schedule property. Similarly, the sale deed executed by Divakara Rao under Ex.A2 in favour of D1 and D2 refers to the schedule property belonged to their brothers and the right of each one including the right of

Taviteswara Rao to the extent of 1/4th share by the date of Ex.A2.

Therefore, the plaintiffs being the legal heirs of Taviteswara Rao are entitled to 1/4th share and since it is disputed without any justification the plaintiffs are entitled for partition of the schedule property into four equal shares and allot one such share to the plaintiffs. This issue is decided accordingly, in favour of plaintiffs and defendants D1 and d2

ISSUE NO.2 - Whether the plaintiffs are entitled for past mesne profits as prayed? &

ISSUE NO.3 - Whether the plaintiffs are entitled for future mesne profits?:-

13)It is an admitted fact that D3 to D7 were tenants of various portions of the schedule property by the date of filing of the suit paying rents in various amounts in respect of the portions in their occupation to

D1 and the pleadings of D1 and their evidence is sufficient to prove that he alone received the rents but he is not paying the rent to the plaintiffs.

In this connection it is the evidence of the 1st defendant as D.W.1.

“I never offered the share of rental to the plaintiffs in writing after the death of Taviteswara Rao. It is not true to suggest that my evidence that I have been depositing the share of the rental amount of the plaintiffs in separate Account No.18781 of Karnataka Bank maintained by myself. That account stands in my name……. I can file that statement of account. The plaint schedule building consists of ground plus two floors and one portion in the 3rd floor.”

It is the evidence of D.W.1 “It is true 2nd defendant received is residing in one portion in the 1st floor. It is true after the tenant i.e., 3rd defendant vacated the premises in the ground floor I leased out to the

Associate Carry Limited in the month of April, 2016. I did not inform about that lease to the plaintiffs. I did not inform to the court also with regard to that leasing to Associate Carry Limited.”

Even in respect of the rents payable by the tenants the claim of the plaintiffs has been sufficiently admitted by D.W.2. Similarly, one of the tenants i.e., the 6th defendant examined as D.W.5 admitted that by the time of death of Taviteswara Rao he was paying rent of Rs.1,300/- p.m., and that initially the rent was Rs.800/- p.m. Similarly, the D7 who is examined as D.W.6 also deposed during cross-examination that by the time of death of Taviteswara Rao he was paying rent of Rs.2,000/- for his portion. Thus, it is proved that the D3 to D7 were paying rents in various amounts as claimed by the plaintiffs which is justified. Though

D1 claimed that he was depositing the amounts in the bank he did not file any document in proof of the same. Even otherwise, deposit of any amount in his account without notifying the same to the plaintiff is of no consequence. Thus, the plaintiffs are entitled for the present and future mesne profits. However, the mesne profits can be ascertained by separate enquiry on a petition that may be filed by the plaintiffs. These issues are decided accordingly in favour of the plaintiffs and against the defendants.

ISSUE NO.4 – TO WHAT RELIEF?

14)In the result, the suit is decreed with costs against D1 and

D2 directing partition of schedule property into four equal shares and allotment of one such share to the plaintiffs together and three shares to the defendants 1 and 2 together with metes and bounds with separate possession, granting preliminary decree for 1/4th share of the plaintiffs as prayed. The plaintiffs are at liberty to file a separate application for ascertainment of past and future mesne profits.

Dictated to the Grade-II Steno of this Court, transcribed and

typed by him, corrected and pronounced by me in the open court on this the 30th day of June, 2017.

III Addl. District Judge, FAC/II Addl. District Judge, Vijayawada.

APPENDIX OF EVIDENCE

WITNESS EXAMINED FOR

PLAINTIFFS:

P.W.1: Adduri Santhi Kumari

DEFENDANTS:

D.W.1: Adduri Lakshmana Rao

D.W.2: Adduri Mohan Rao

D.W.3: Potnuri Surya Prakash @ Chinna

D.W.4: Garre Kondala Rao

D.W.5: Kolla Ganesh

D.W.6: Kolangi Ravi

Documents marked on behalf of Plaintiffs:

Ex.A1: Certified copy of registered relinquishment deed , dt:12.05.2008.

Ex.A2: Certified copy of registration copy of the sale deed, dt:16.11.2012

Ex.A3: Death certificate

Ex.A4: Office copy of the legal notice dt:15.05.2013

Ex.A5 to Ex.A8: Postal acknowledgments from D1 to D3 and D7 respectively. Ex.A9 to A11: Unserved postal covers of D4 to D6

Ex.A12: Reply notice from D1 and D2.

Documents marked on behalf of Defendants:

Ex.B1: Registration copy of the partition deed among the sons of the Late Adduri Ramulu.

III Addl. District Judge, FAC/II Addl. District Judge, Vijayawada.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:

AT VIJAYAWADA

PRESENT: SRI M.VENGAIAH, III Additional District Judge, FAC II Additional District Judge,

Friday, this the 30th day of June, 2017

O.S.No.299/2013

Between:- 1.Adduri Santhi Kumari, 2.Adduri Kavya, D/o Late Adduri Thaviteswara Rao, Hindu 17 yrs, student, D.No.9-35-28/A, Illipilla Narasimha Rao street, Kothapet, vijayawada. (Deleted as the 2nd plaintiff declared as major as per theorders,dt:23.01.2017madein I.A.No.148/2017) 3.Adduri Venkata Kishore, (being minor represented by his mother and natural guardian/next friend, Adduri Santhi Kumari, W/o Late Adduri Thavitewara Rao, Hindu, 38 yrs, house wife, r/o Kothapet, Vijayawada. ….Plaintiffs. AND 1.Adduri Lakshmana Rao, 2.Adduri Mohana Rao, 3.M/s Muditha Paper Traders, 4.Jeketi Sarojini 5.Puli Jaya, 6.Kalangi Ravi, 7.Kolla Ganesh, …. Defendants,

This suit coming in the presence of Sri.J.R.Satyanarayana Prasad, Advocate for plaintiffs and Sri Rampilla Srinivasa Rao, Advocate for defendants 1 & 2 and Sri Kanteti Sridhar, Advocate for defendants 6 & 7 and defendants 3,4 & 5 remained exparte and the matter having stood over for consideration till this day, the court delivered the following:

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:

AT VIJAYAWADA

PRESENT: SRI M.VENGAIAH, III Additional District Judge, FAC II Additional District Judge,

Friday, this the 30th day of June, 2017

O.S.No.299/2013

Between:- 1.Adduri Santhi Kumari, W/o Late Adduri Thaviteswara Rao, Hindu 38 yrs, house wife, D.No.9-35-28/A, Illipilla Narasimha Rao street, Kothapet, vijayawada.

2.Adduri Kavya, D/o Late Adduri Thaviteswara Rao, Hindu 17 yrs, student, D.No.9-35-28/A, Illipilla Narasimha Rao street, Kothapet, vijayawada. (Deleted as the 2nd plaintiff declared as major as per theorders,dt:23.01.2017madein I.A.No.148/2017) 3.Adduri Venkata Kishore, S/o late Adduri Thaviteswara Rao, Hindu 14 yrs, student, D.No.9-35-28/A, Illipilla Narasimha Rao street, Kothapet, vijayawada. (being minor represented by his mother and natural guardian/next friend, Adduri Santhi Kumari, W/o Late Adduri Thavitewara Rao, Hindu, 38 yrs, house wife, r/o Kothapet, Vijayawada. ….Plaintiffs. AND 1.Adduri Lakshmana Rao, S/o late Adduri Ramulu, Hindu, 57 yrs, properties, D.No.9-66-8, Alladavari Veedhi, Near Fish market, Kothapet, Vijayawada.

2.Adduri Mohana Rao, S/o late Adduri Ramulu, Hindu, 48 yrs, properties, D.No.9-66-8, Alladavari Veedhi, Near Fish market, Kothapet, Vijayawada.

3.M/s Muditha Paper Traders, D.No.9-66-8, Alladavari Veedhi, Near Fish market, Kothapet, Vijayawada. (H.O) M/s Muditha Paper Traders, D.No.11-40-1, 1st floor, Chitturi complex, Vijayawada, rep.by its authorized person, Sri K.Sitha Pathi Raju, Hindu, 55 yrs, Business, R/o Vijayawada.

4.Jeketi Sarojini, Hindu, 50 yrs, house wife, D.No.9-66-8, Alladavari Veedhi, Near Fish market, Kothapet, Vijayawada.

5.Puli Jaya, W/o Prashant, Hindu, 45 yrs, business, D.No.9-66-8, Alladavari Veedhi, Near Fish market, Kothapet, Vijayawada.

6.Kalangi Ravi, Hindu, 35 yrs, employment, D.No.9-66-8, Alladavari Veedhi, Near Fish market, Kothapet, Vijayawada.

7.Kolla Ganesh, Hindu, 46 yrs, employment, D.No.9-66-8, Alladavari Veedhi, Near Fish market, Kothapet, Vijayawada. …. Defendants,

Suit for partition of plaint schedule property into four equal shares and to allot one such share to each plaintiff and for recovery of rents and for costs.

Suit presented on:08.08.2013 Suit numbered on:17.08.2013

The value of the suit for purpose of Jurisdiction is Rs.12,53,287/- U/s 50(1) of A.P.C.F & S.V.Act. On which a court fee of Rs.2,826/- is paid U/s 20 of A.P.C.F & S.V Act.

Cause of action for the suit arose on 10.04.2007 when the plaint schedule property devolved on five sons on the death of Adduri Ramulu, and on 12.05.2008 ;when Adduri Satyanarayana Rao relinquished his 1/5th share in the Plaint schedule property to Adduri Thaviteswara Rao, Adduri Divakara Rao alnd the Defendants 1 & 2 and on 07.08.2012 when Thaviteswara Rao died intestate leaving behind the plaintiffs 1 to 3 as his legal heirs and when the 1/4th share in the plaint schedule property devolved on the plaintiffs 1 to 3 and on 16.11.2012 when Adduri Divakara Rao sold his 1/4th share in the plaint schedule property to the defendants 1 & 2 and when the plaintiffs 1 to 3, and the defendants 1 & 2 have been enjoying the same with joint possessions; on the subsequent dates when the plaintiffs demanded the defendants 1 & 2 for partition of the plaint schedule property and mesne profits; and on 15.05.2013 when the plaintiffs got issued a legal notice to the defendants 1 & 2 for partition of the plaint schedule property and for mesne profits; and on 27.05.2013 when the defendants 1&2 got issued reply notice and at Vijayawada, where the plaint schedule property is sitauted, within the Jurisdiction of this Court.

This suit coming in the presence of Sri.J.R.Satyanarayana Prasad, Advocate for plaintiffs and Sri Rampilla Srinivasa Rao, Advocate for defendants 1 & 2 and Sri Kanteti Sridhar, Advocate for defendants 6 & 7 and defendants 3,4 & 5 remained exparte and the matter having stood over for consideration till this day, the court doth order and decree:

1. that the suit be and the same is hereby preliminarily decreed against

D1 and D2 directing partition of plaint schedule property into four equal shares and alloting one such share to the plaintiffs together and three shares to the defendants 1 & 2 together with meets and bounds and with separate possession.

2. that the plaintiffs are entitled for the present and future mesne profits, however the plaintiffs are at liberty to file a separate application for ascertainment of past and future mesne profits.

3. that the defendants 1 & 2 do pay to the plaintiffs a sum of Rs.36,596/- and do bear their own costs of Rs.15,402/- towards costs of this suit.

Given under my hand and the seal of this court, this the 30th day of June, 2017.

III Addl. District Judge, FAC/II Addl. District Judge, Vijayawada.

MEMORANDUM OF COSTS

MEMO OF COSTS

For PetitionerFor Respondents

Rs.Rs.NIL

1.Stamp on Vakalat2-002-00

2.Plaint stamps2826-00- 3Process335-00200-00 4Pleaders fees25000-0015000-00 5Junior Pleaders fees8333-00- 6Writing charges50-00100-00 7Type charges50-00100-00 TOTAL36,596-00 15,402-00

III Addl. District Judge, FAC/Chairman, MAC Tribunal-cum- II Addl. District Judge, Vijayawada.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:

AT VIJAYAWADA

PRESENT: SRI M.VENGAIAH, III Additional District Judge, FAC II Additional District Judge,

Thursday, this the 24th day of August, 2017

O.S.No.93/2013

Between:-

Dr.Chalasani Padmaja Rep. by her GPA holder Chalasani Koti Ravi Kiran …. Plaintiff. AND

The Municipal Corporation of Vijayawada Rep. by its Commissioner …. Defendant

This suit coming in the presence of Sri U.V.Subrahmanyam, Advocate for plaintiff and Sri A.Gopala Sastry, Advocate for defendant and the matter having stood over for consideration till this day, the court delivered the following:

JUDGMENT

This is a suit filed by the plaintiff through the General Power of Attorney seeking declaration that the notice dt.03.11.2012 is null and void in demanding the accrued tax amount from October, 2001 onwards and for consequential permanent injunction restraining the defendant from collecting the accrued tax from October, 2001 onwards on the bill dt.03.11.2012. Pleading briefly stated as under:-

2.That the plaintiff is the absolute owner of the 2nd floor of the building bearing Door No.40-1-57, which is described in the schedule and referred to as the plaint schedule property, for short ‘schedule property’ by paying taxes in her name. The plaintiff is very regular in payment of taxes. In the same building her brother and sisters are owning different items of properties. Plaintiff and her sisters executed

G.P.A., in favour of their brother Chalasani Koti Ravi Kiran as the plaintiff and her sisters are residing in abroad and the G.P.A., is residing at Vijayawada and he is looking after the entire affairs of the building including tax matters, he is fully acquainted with the facts of the case.

The building is consisting of ground, 1st and 2nd floors belongs to her brother, the GPA holder Chalasani Koti Ravi Kiran and other two sisters along with the plaintiff. The schedule property is the 2nd floor which belongs to the plaintiff bearing Door No.40-1-57, but the defendant wrongly mentioned the Door Number as 40-1-57A. As such the property consisting of Door No.40-1-58 and 40-1-57 appears as one property and is located at one corner of Benz Circle, Vijayawada. The family members of the plaintiff are very sincere in payment of the taxes.

They own other properties falling under Vijayawada Municipal corporation limits and have promptly discharged all tax dues. The GPA holder Chalasani Koti Ravi Kiran and the plaintiff herein and her sisters intended to renovate/rebuild the said property as the M.G.Road abutting to the property has been widened as per present Master Plan. On demand from the Vijayawada Municipal Corporation authorities for widening of the road, the plaintiff, her sisters in conjunction with their

GPA holder Chalasani Koti Ravi Kiran have applied for plan approval vide application No.1970/2012 incorporating the building plan concessions for the land to be surrendered, which is under the process for approval.

It is further submitted that with the intention of renovation of the schedule property the plaintiff got vacated the present tenants long back and removed doors, windows, internal structures and electricity connections of the building, as such the building is not in livable condition and it was kept vacant. Similarly, the 1st floor is also not in livable condition as all the above mentioned amenities were removed to the said portion. Most of the ground floor i.e., more than 90% of the portion was also in the above said condition and not useful for any purpose. As such the plaintiff and her family members have been gradually removing the construction by removing the doors, windows, internal structures, electricity connection etc., of the building by step by step as and when it is possible. So, the entire building consists of ground, 1st and 2nd floors is not in livable condition.

It is further submitted that the removal as mentioned above started from 1st and 2nd floors of the building bearing Door No.40-1-57.

The entire 1st and 2nd floors are in vacant position since long back. The owners of 1st and 2nd floors of the building bearing Door No.40-1-57 who are the sisters removed the construction as mentioned above and intimated the same in writing to the defendant, but the defendant without taking into consideration of the above fact mechanically sending the bills to the respective owners. Consequently, the G.P.A. holder filed suits in O.S.No.2326/2004 on behalf of the plaintiff and

OS.No.2327/2004 on behalf of the sister of the plaintiff by name

Ch.Usha Sundari relating to her portion through the GPA holder

Chalasani Koti Ravi Kiran on the file of V Addl. Junior Civil Judge Court,

Vijayawada and the said suits were decreed with costs on 12.10.2009 restraining the defendant from collecting the tax during the period of renovation. The plaintiff submits that the building is still in that condition and the same is also known to the defendant and its staff.

Even prior to filing of the suit O.S.2326/2004 the schedule property is not in livable condition, but the defendant was sending the bills mechanically though the plaintiff informed in writing about the vacancy of the building. As there was no positive response from the defendant, the plaintiff filed the suit for the period 2001-2002 as mentioned above and it was decreed directing the defendant not to collect the tax for the above mentioned period, against which there was no appeal filed.

It is further submitted that inspite of the decree the defendant is sending bills from October, 2001 onwards till March, 2013 and used to send the bills for every half year by accruing previous arrears along with penal interest. The amount includes the amount which is prohibited by the Court in O.S.No.2326/2004 not to collect the tax. In fact there is no renovation took place to the building and the building is intact. But the defendant without considering the intimation of vacancy and also the orders of the Court is sending bills. The particulars mentioned in the bills sent by the defendant are also not true and correct. The act of the defendant in sending the bills for every half year creates a new cause of action for filing the suit. The plaintiff further submits that the defendant has no right to collect tax for that the GPA holder used to send notices to the defendant intimating the fact that it has no right to collect tax. The defendant received the notice and without considering the same sending demand notices and as such their action is liable for prosecution for contempt of court. The plaintiff also warned the defendant through its notice that their action is liable for contempt of court proceedings.

That aggrieved with the bills and threats made by the defendant for attachment of plaint schedule property, the plaintiff got issued legal notice u/s 685 of Hyderabad Municipal Corporation Act and also other notices from time to time dt.21.10.2011, 30.03.2011, 26.09.2012 and 04.02.2013 demanding the defendant not to collect the taxes and also further demanded to give credit to the amount paid by the sister of the plaintiff under protest. The defendant received the notice dt.04.02.2013 on 05.02.2013 but no action of withdrawing the notices or any steps to give credit to the amount paid by the GPA holder was taken.

Moreover, the defendant is threatening to attach the schedule property without considering the real facts. The plaintiff further submits that the

GPA holder filed two suits against the defendant relating to the ground floor for which the defendant issued an attachment notice. The I Addl.

Senior Civil Judge Court, Vijayawada restrained the defendant from

attachment of the property in I.A.No.125/2013 in OS.No.158/2013 and similarly in I.A.No.127/2013 in OS.No.155/2013. Therefore, the plaintiff is forced to file the suit for declaration that the bills issued by the defendant as null and void.

3)The defendant appeared through counsel and filed written statement denying various allegations/averments made in the plaint.

Pleadings briefly stated as under:-

That prima facie this suit and the petition are not maintainable at law under Sec.670-A (2) of Hyderabad Municipal

Corporation Act. Unless the plaintiff pays 50% of the tax demanded the suit is not maintainable. The plaintiff shall pay 50% of the tax demanded i.e., half of the suit amount and the petition cannot be entertained and as such this suit and the petition are not maintainable under law.

It is further submitted that the property bearing Assessment

No.26286X/2 (old), 223936 (new) in Municipal Ward No.26 is in the name of the plaintiff bearing Door No.40-1-57A. The plaintiff has not submitted any representation for door number correction. From the beginning the said property is in the same door number. The plaintiff has to pay the property tax from 4/2001 to 4/2013, in total to a tune of

Rs.17,32,754/- as on date. The allegations contra are not correct.

It is further submitted that the Defendant Corporation is entitled to collect tax from the plaintiff either as property tax or vacant land tax as per the Hyderabad Municipal Corporation Act, 1955. The averments made by the plaintiff that the renovation was started nearly 3½ years back and all the doors, windows and internal structures were removed are false. It is to state that the building is in good condition even though it is an old construction. The plaintiff had not made any efforts to pay the property tax. The plaintiff did not submit any application to the defendant Corporation for vacancy remission or any exemption. The defendant Corporation has to collect taxes in accordance with the provisions of the Act.

It is further submitted that the plaintiff filed suits in

OS.Nos.2326/2004 and 2327/2004. As per the Hyderabad Municipal

Corporation Act the plaintiff has to pay either property tax or vacant land tax on the schedule property, but the plaintiff had not paid any tax. The plaintiff has not submitted any representation to the defendant

Corporation for vacancy remission or any exemption. As per Sec.204 of the Hyderabad Municipal Corporation Act, for short ‘the Corporation

Act’ it is the primary duty of the plaintiff to pay the property tax on the said structures already leviable. As per Sections 210 and 211 of the

Corporation Act the plaintiff has to give notice to the defendant for renovation or vacancy remission or any other exemption but the plaintiff has not submitted any application. The defendant had separated the taxes floor wise as per Sec.215 of the Corporation Act. The total structure was not removed. According to the provisions of the

Corporation Act the defendant has been sending demand notices for every half year to pay the property tax within 15 days from the date of receipt of the demand notice. Even after receipt of several demand notices and other notices the plaintiff has not responded properly. There is every opportunity to apply for revision or any other application to the defendant and settle the matter in peaceful manner, but the plaintiff has not done so. The defendant has every right to issue notices for collection of the property tax from the plaintiff. Until realization of the entire dues the defendant has every right to issue notices from time to time in accordance with the Corporation Act. It is a fact that the I Addl. Senior

Civil Judge Court, Vijayawada restrained the defendant from attachment

of the property in I.A.No.125/20134 in O.S.No.158/2013 and the said order was obeyed by the defendant. The property is first charge u/s 238 of the Corporation Act. The plaint pleadings that the tenants did not vacate and court litigation is pending since long time to show that the tenants are in occupation. The allegations contra denied and the plaintiff is put to strict proof of all the allegations which are not specifically admitted herein and prayed to dismiss the suit with costs.

4)Based on the pleadings, material available on record and on hearing both sides my learned predecessor settled the following issues for determination of the suit:-

1) Whether suit is not maintainable for non-payment of 50% tax under Sec.670-A (2) of H.M.C. Act?

2) Whether plaintiff is entitled to declaring the notice dt.03.11.2012 is null and void?

3) Whether plaintiff is entitled for permanent injunction as prayed for?

4) To what relief?

5)During the course of trial, on behalf of the plaintiff, the GPA holder of the plaintiff who filed the suit and who came to be acquainted with the facts was examined as P.W.1 and Exs.A1 to A7 were marked.

Similarly, on behalf of the defendant the Revenue Inspector Circle-III of the defendant Corporation was examined as D.W.1 and no documents were marked.

6)Heard both sides. The learned counsel for the defendant filed memo of written arguments.

ISSUE Nos.1 to 3:-

7)It is an admitted fact that the plaintiff is the absolute owner of the 2nd floor of the building bearing Door No.40-1-57. As per the defendant the building is bearing Door No.40-1-57A and it has specifically disputed the correctness of the door number given by the plaintiff. The assessment was specifically made in respect of the share of the plaintiff viz., Ch.Padmaja with old Assessment No.26286X/2 with new Assessment No.223936 situated in Ward No.26. Even according to the plaintiff she is challenging the demand notice dt.03.11.2012 issued under Ex.A5. Even as per the demand notice Ex.A5 the property is in respect of the Assessment No. 26286X/2 (old) and 223936 (new) situated in Door No.40-1-57A standing in the name of the plaintiff. There is no evidence placed by the plaintiff that the said house is bearing Door

No.40-1-57, but not 40-1-57A. Therefore, it was specifically pleaded by the defendant that no attempt was made by the plaintiff to correct the door number. However, since the identity of the property is not in dispute it is not much consequence for the disposal of the present suit.

8)This notice was issued demanding for payment of house tax from 4/2001 to 9/2001 and from 10/2012 to 03/2013 and it appears that the demand was made from 4/2001 to 9/2001 and thereafter from 4/2007 till 3/2013 for every six months. It is not in dispute that the plaintiff herein filed a suit in OS.2326/2004 on the file of V Addl. Junior

Civil Judge Court, Vijayawada seeking declaration that the enhanced tax

of Rs.24,801/- for half year (Rs.49,602/- per year) in respect of the schedule property during the period of renovation 2001-2002 as null and void with consequential permanent injunction restraining the defendant and their employees to collect tax during the period of renovation 2001- 2002 and the said suit was decreed on 12.10.2009 and as per the copy of the judgment Ex.A2 the operating portion of the decree reads:- “In the result, the suit is decreed with costs by declaring that the enhanced tax of Rs.24,801/- per half year and Rs.49,602/- per year as null and void to the building bearing No.40-1-57, Ward No.28C, Assessment No.28286 X/2 restraining the defendant, it’s employees to collect the tax during the period of renovation from 2001-2002. For the remaining years the defendant is entitled to collect the tax from the plaintiff.”

It is further clarified in the decree which reads:- “1) It is hereby decreed that the enhanced tax of Rs.24,801/- per half year and

Rs.49,602/- per year as null and void to the building bearing No.40-1-57,

Ward No.28C, Assessment No.28286 X/2 situated at Tripura Complex, Benz

Circle, Vijayawada;

2) that the defendant and it’s employees be and are hereby restrained by means of permanent injunction from collecting the tax during the period of renovation, 2001-2002 and for the remaining period the defendant be and is hereby entitled to collect the tax from the plaintiff;”

It appears that the notice under challenge marked under Ex.A5 includes the amount for the year 2001-2002. It is true that against the said judgment and decree the defendant has not preferred any appeal or revision. However, as per the provisions of Sec.670-A of the Hyderabad

Municipal Corporation Act, 1955 as amended by Act 13 of 2008 which is applicable to the Municipal Corporation, Vijayawada and as contended by the learned counsel for the defendant no suit shall be entertained by any Court of law unless the assessee pays 50% of the tax levied or demanded. Section 670-A reads under:- “670-A. Assessment etc., not to be questioned:- (1) No assessment or demand made, and no charge imposed under the authority of this Act shall be questioned or effected by reason of any clerical error or by reason of any mistake (a) in respect of the name, residence, place of business or occupation of any person or (b) in the description of any property or (c) in respect of the amount assessed, demanded or charged; provided, that the provisions of this Act have been in substance and effect, complied with; and no proceedings under this Act shall, merely for defect in form, be quashed or set aside by any Court; Provided that the person or property so assessed or charged is reasonably ascertainable. (2) Notwithstanding anything contained in sub-section (1), no suit shall be entertained by any Court of law unless the assessee pays fifty percent of the tax levied or demanded.”

The policy of the Municipal Corporation to impose the tax is incorporated in Sec.197 of the Corporation Act, which reads under:- “(1) (i) For the purposes of this Act, the Corporation shall impose the following taxes, namely:-

(a) taxes on lands and buildings;

(b) to (f) …….

(g) a tax on transfer of immovable property.

(ii) ……. (2) the Corporation may impose any tax other than those specified under sub- section (1) subject to the previous sanction of the Government. (3) the taxes specified in sub-sections (1) and (2) shall be assessed and levied in accordance with the provisions of this Act and rules made thereunder.”

As per the provisions of Sec.202 the general tax shall be levied in respect of all buildings and lands in the city except as exempted thereunder.

The liability of property tax is mandatory by Sec.204 of the Corporation

Act, which reads as under:- “204. Primary responsibility for property taxes on whom to rest:- (1) Property taxes shall be leviable primarily from the actual occupier of the premises upon which the said taxes are assessed if such occupier holds the said premises immediately from the Government or from the Corporation.

(2) Otherwise the said taxes shall be primarily leviable as follows, namely:-

(a) if the premises are let, from the lessor;

(b) if the premises are sub-let, from the superior lessor; and

(c) if the premises are unlet, from the person in whom the right to let the same, vests.

(3) But if any land has been let for any term exceeding one year to a tenant, and such tenant has build upon the land, the property taxes assessed upon the said land and upon the building erected thereon shall be primarily leviable from the said tenant or his legal representative, whether the premises be in the occupation of the said tenant or of his legal representative, or of sub- tenant.”

Similarly, as rightly pointed out by the learned counsel for the defendant that if a building is demolished or removed as per the provisions of

Sec.211 of the Corporation Act notice shall be given to the

Commissioner. It will be beneficial to read the provisions of Sec.211 of the Corporation Act extracted below:- “211. Notice to be given to the Commissioner of demolition or removal of a building:- (1) When any building or any portion of a building, which is liable to the payment of a property tax, is demolished or removed, otherwise than by order of the Commissioner, the person primarily liable for the payment of the said tax shall give notice thereof, in writing, to the Commissioner. (2) Until such notice is given the person aforesaid shall continue to be liable to pay every such property tax as he would have been liable to pay in respect of such building if the same or any portion thereof, had not been demolished or removed; Provided that nothing in this section shall apply to a building or any portion thereof which has fallen down or been burnt down.”

Violation of property tax was also stated in Sec.212 and the determination of the rateable value of any building or land the

Commissioner is empowered to call for the information and visit the premises u/s 213 of the Corporation Act. Therefore, as per the provisions of Sec.670-A no suit shall be entertained by any Court of law unless the assessee pays fifty percent of the tax levied or demanded.

Admittedly, the plaintiff has not paid any amount demanded under the

Ex.A5 demand notice. Even if it includes certain amount covered by the suit he could have paid the amount by excluding the said amount without challenging the notice as a whole. Simply because it includes part of the claim made earlier was included it does not mean that the plaintiff is entitled to take shelter under the same. Even as per the decree passed earlier that order is limited only for the period of renovation 2001-2002 and there is a specific direction given that for the remaining period the defendant is entitled to collect the taxes from the plaintiff. This was not complied by the plaintiff. Even assuming for a moment it appears that there are no doors or windows and internal structures in the schedule property and it is not fit for residential or commercial purpose and it appears that it was admitted by D.W.1 to that effect, however, even as per the evidence of P.W.1 as admitted by him the schedule property has superstructures. In this connection it is the evidence of P.W.1 that, “The suit under Ex.A2 was filed by Chalasani Padmaja which pertains to 2nd floor. As per Ex.A2 the exemption of the tax was given for the period 01.04.2001 to 31.03.2002. It is true under the Ex.A2 judgment the tax was exempted for the period of 2001-2002 for the period of renovation. It is true in the plaint in this suit, it is pleaded that the renovation could not be effected as the tenant did not vacate the premises by the date of filing the suit. The building including the 2nd floor having the super structure. The witness adds that there was only slab and pillars. It is true to suggest that I am deposing false. I did not file any separate application for reducing the tax on the ground the building is vacant.”

Though the plaintiff has got issued notice u/s 685 of the Corporation Act marked under Ex.A6 it is only to file a suit before, but it is not as per the provisions of Sec.670-A. In other words, as per the terms of Sec.685 no suit shall be instituted against the Corporation or against the

Commissioner etc., in respect of any act done in pursuance of execution or intended execution of the said Act or in respect of any alleged neglect or default in the execution of this Act. Until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the Chief Municipal Officer etc., Therefore, it is only intended to give an opportunity to the defendant Corporation to comply with any such demand. In the instant case, there is no notice of renovation given by the plaintiff to the defendant seeking any exemption in payment of taxes.

Therefore, the suit is not maintainable for the failure on the part of the plaintiff to pay or offer the amount demanded by the defendant as required u/s 670-A of the Act. Though the plaintiff claimed as if she issued several notices to the defendant reporting the renovation etc., there is no evidence in proof of the same. Except the notice issued u/s 685 there is no notice issued by the plaintiff either u/s 210 or u/s 211 seeking any remission. Therefore, the plaintiff is not entitled for declaration, so also permanent injunction. These issues are decided accordingly.

ISSUE NO.4:-

8)Since the evidence indicates the building is in the same condition as on the date of decree and there are no windows, doors and internal structures for the schedule property and it is not fit for residential or commercial purpose as admitted by D.W.1, I feel it is just and necessary to give an opportunity to the plaintiff to approach the defendant seeking any remission on that ground.

9)In the result, the suit is dismissed. The plaintiff is at liberty to approach the defendant with such representation/notice u/s 211 of

Hyderabad Municipal Corporation Act seeking remission during the period of renovation within one month and on such representation/notice made by the plaintiff seeking such remission, the defendant shall consider and cause appropriate enquiry and pass necessary orders within two months and if the plaintiff is aggrieved by such orders she is at liberty to approach the appropriate Forum by complying with Sec.670-A of the Hyderabad Municipal Corporation Act.

Till such orders are passed by the Commissioner, the notice under Ex.A5 is deemed to be kept in abeyance. Under the circumstances, each party do bear their own costs.

Typed to my dictation by the Grade-II Steno, corrected and

pronounced by me in the open court, this the 24th day of August, 2017.

III Addl. District Judge, FAC/ II Addl. District Judge, Vijayawada.

APPENDIX OF EVIDENCE

FOR PLAINTIFFFOR DEFENDANT

P.W.1: Chalasani Koti Ravi KiranD.W.1: Mekala Vijaya Bhaskara Rao

Documents marked on behalf of Plaintiff:

Ex.A1: Notarized copy of GPA Ex.A2: CC of the Judgment in O.S.No.2326/04 on the file of V Addl.Junior Civil Judge’s Court, Vijayawada. Ex.A3: CC of Judgment in O.S.No.2327/04 on the file of V Addl.Junior

Civil Judge’s Court, Vijayawada.

Ex.A4: OC of notice issued to the defendant U/s 685 of HMC Act,

dt:21.1.2011.

Ex.A5: Tax demand, dt:3.11.2012 Ex.A6: OC of the notice issued to the defendant dt:4.2.2012 along with postal receipt. Ex.A7: postal acknowledgment dt:5.2.2012.

Documents marked on behalf of Defendant: NIL.

III Addl. District Judge, FAC/ II Addl. District Judge, Vijayawada.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:

AT VIJAYAWADA

PRESENT: SRI M.VENGAIAH, III Additional District Judge, FAC II Additional District Judge,

Tuesday, this the 24th day of August, 2017

O.S.No.93/2013

Between:-

Dr.Chalasani Padmaja, D/o Late Ch.Papa Rao, Hindu, 51 yrs, Residing in England, Represented by her GPA Holder Chalasani Koti Ravi Kiran, S/o Late Papa Rao, Hindu 41 yrs, Business, D.No.62-2-23, Patamata Lanka, Vijayawada. ….Plaintiff. AND

The Municipal Corporation of Vijayawada, rep by its Commissioner, Vijayawada Municipal Corporation, Vijayawada. …. Defendant

Suit for (i) declaration to declare the notice dt:03.11.2012 as null and void in demanding the acurred tax amount from October, 2011 onwards; (ii) Permanent Injunction restraining the defendant from collecting the acurred tax from October, 2011 onwards on the bill dated: 03.11.2012; (iii) for costs etc.

Suit presented on:12.03.2013 Suit numbered on:14.03.2013

The value of the suit for purpose of Jurisdiction is Rs.16,16,406/- U/s 50(1) of A.P.C.F & S.V.Act. On which a court fee of Rs.19,312/- is paid U/s 20 of A.P.C.F & S.V Act.

Cause of action for the suit arose on 04.02.2013 when the plaintiff removed the doors, windows, electricity connections and interior portion long bank for the renovation of the building and when the plaintiff intimate the same to the defendant and the defendant tried to attach the property and when plaintiff filed the suit and the same was decreed and in spite of that the demanded demanding the tax by sending bills and when the plaintiff got issued notices from time to time and finally on 04.02.2013 under section 685 of Municipal Corporation Act and the same was received by the defendant on 05.02.2013 and even after threaten to attach the property with the alleged amount of due, the building is situated at Vijayawada and the defendant is also at Vijayawada entire cause of action took place at Vijayawada within the Juridiction of this Hon’ble Court.

This suit coming in the presence of Sri U.V.Subrahmanyam, Advocate for plaintiff and Sri A.Gopala Sastry, Advocate for defendant and the matter having stood over for consideration till this day, the court doth order and decree:

1. that the suit be and the same is hereby dismissed.

2. that the plaintiff is at liberty to approach the defendant with such representation/notice/u/s 211 of Hyderabad Municipal Corporation Act seeking remission during the period of renovation within one month and on such representation/notice made by the plaintiff seeking such remission,

3. that the defendant shall consider and cause appropriate enquiry and pass necessary orders within two months.

4. that if the plaintiff is aggrieved by such orders she is at liberty to approach the appropriate Forum by complying with Sec.670-A of the Hyderabad Municipal Corporation Act. Till such orders are passed by the Commissioner, the notice under Ex.A5 is deemed to be kept in abeyance.

5. that the both parities do bear their own costs.

Given under my hand and the seal of this court, this the 24th day of August, 2017.

III Addl. District Judge, FAC/II Addl. District Judge, Vijayawada.

MEMORANDUM OF COSTS

MEMO OF COSTS

For PlaintiffFor Respondent Rs.NILRs.

1.Stamp on Vakalat-2-00

2.Plaint stamps-- 3Process-- 4Pleaders fees-25000-00 5Junior Pleaders fees-8333-00 6Writing charges-50-00 7Type charges-50-00 TOTAL- 33,435-00

III Addl. District Judge, FAC/Chairman, MAC Tribunal-cum- II Addl. District Judge, Vijayawada.

1

IN THE COURT OF THE SPECIAL JUDGE FOR PROTECTION OF

CHILDREN FROM SEXUAL OFFENCES ACT ­cum­ ADDL.

METROPOLITAN SESSIONS JUDGE: VIJAYAWADA.

Present: Sri M.VENGAIAH, 

Special Judge for Protection of Children from Sexual Offences­cum­

Addl. Metropolitan Sessions Judge, Vijayawada.

Friday, this the 13 th day of July,2018

Sessions Case No.46/2015

1.Name of the Complainant:State represented by Inspector of Police, Bhavanipuram P.S. Vijayawada City.

2.Name of the Accused:Shaik Munna @ Siva, S/o.Meeravali,aged about 22 years, Dargah Plots, Bhavanipuram, Vijayawada. 

3.Crime Number:130/2015 of Bhavanipuram P.S., Vijayawada

4.Section of Law:U/Sec.366,376(2) (f)&(n) and Section 4,6 of POCSO Act 2012 and Section 9 of Prohibition of Child Marriage Act.

5.Plea of the Accused:Pleaded not guilty

6.Finding of the Court:Found not guilty.

7.Sentence or Order:The accused is found not guilty of the offence charged u/Sec. 6 of Protection of Children from Sexual Offences Act 2012alternativelyU/Sec.376(2) r/w.376(2)(i)(n) of IPC and he is acquitted u/s 235(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months.

This case is coming today before me for consideration after hearing both sides on 10.7.2018, in the presence of Sri Donepudi Sambasiva Rao, , Spl. Public Prosecutor for complainant and of Sri Ch.Ravi Babu, Advocate for the accused and the matter having stood over for consideration, this Court delivered the following.

J U D G M E N T

This is a criminal prosecution came to be launched against the sole accused for kidnapping a minor girl, for committing repeated penetrated sexual offence and for sexual harassment committed on a minor girl punishable 2

U/Sec.366, 376(2)(f) &(n) of IPC and U/Sec. 6 of Protection of Children from

Sexual Offences Act,2012, as a result of investigation and report (charge sheet) filed by the then Inspector of Police, Bhimavaram police station,

Vijayawada city in pursuance of the report given by the father of the victim registered by the then S.I. of Police, Bhavanipuram Police station in

Cr.No.130/2016 of Governorpet Police station.

2)The case of the prosecution briefly stated are as under :

On 22.3.2015, One K.Venkateswarlu, S/o.Tirupataiah resident of

Urmila Subba Rao Nagar,Vijayawada/P.W.2 lodged a written report with the

SHO, Bhavanipuram Police station, Vijayawada stating as under;

He was doing Private contract works at APSRTC and he was blessed with two daughters and his elder daughter Madhavi aged 17 years was then studying Intermediate 2nd year in Chaitanya College, Gollapudi staying in

College hospital. On 14.3.2015, she appeared for English examination.

Thereafter, on the same day, at 7.00 P.M., she went to the house of her friend to get a book, but she did not return and they searched here and there and their relatives house and also the friend of his daughter and at the college hostel, but her whereabouts are not known. Later, on his enquiry, he came to know that one Munna @ Siva the accused herein who is a Auto driver, resident of Bhavanipuram, Vijayawada was grooming intimately with his daughter and since that date, he along with his friends L.W.7 Pasam Rosaiah, L.W.6 Dudi

Brahmaiah and N.Babu Rao/P.W.4 and L.W.5 Rajendra started searching in the neighbouring villages and while they were searching , on previous date i.e.

on 21.3.2015 at 9.00 P.M., the friend of his daughter by name Rajendra received a phone call from his daughter stating that she was at Dwaraka

Tirumala and thereupon, they all together went to Dwaraka Tirumala and searched for his daughter and on that day i.e. on 22.3.2016 in the early morning at 05.00 a.m., they came to know that his daughter was in Ralla gutta nearby Dwaraka Tirumala and went there and enquired and found his 3 daughter talking to some body and by the time, they approached her, that person ran away. Then, they brought his daughter to their house and in the presence of his wife and other family members, they enquired about their daughter and she stated that since one year she was loving the accused and went along with him believing the words and on the false promise of marriage, they met physically. By that time, his daughter was aged 17 years, born on 2.2.1998 and since she was minor , the accused in the name of love and marriage, prevailed over her and developed physical contact and thereby cheated her and therefore, requested to take necessary action.

The then Inspector of Police, Bhavanipuram Police station/P.W.7 who was present in the police station received the report/Ex.P.10 from P.W.2 who came along with his daughter/P.W.3 and wife/P.W.1 and registered the same as F.I.R. in Crime No.130/2015 U/Sec.366­A AND 376(2)(n) of IPC and

U/Sec.6 of Protection of Children from sexual offences Act,2012 and issued

F.I.R./Ex.P.8 and on receipt of copy of express F.I.R., their Inspector/P.W.8 considering the nature of the offence took up investigation and examined P.W.1 and P.W.2 and recorded their statements and referred the victim/P.W.3 to

Government General Hospital,Vijayawada through woman P.C.135. He also sent requisition to Station House Officer, Woman Police Station, Vijayawada city with a request to depute woman police officer to record the statement of the victim/P.W.3 under the provisions of Protection of Children from Sexual

Offences Act,2012 for short ‘the Act’. Then, he visited the scene of offence the house premises of complainant/P.W.2 and secured the witnesses and examined P.W.4, P.W.5 and L.W.6 D.Brahmaiah and L.W.7 P.Rosaiah and recorded their statements. On 23.3.2015, he took up further investigation and as per his information, he secured the mediators L.W.15/M.Ashok Kumar and

L.W.16/K.Kishore and rushed to Venkateswara foundry Centre,

Bhavanipuram, Vijayawada and arrested the accused and got drafted the mediators report as per Ex.P.9 to prove the arrest and brought him to police station and sent for judicial custody. On 24.3.2015, he took up further 4 investigation and filed requisition to refer the accused for medical examination/Potency test on 3.4.2015, as per the orders of this court, the accused was taken to Government General Hospital, Vijayawada for medical examination/potency test. As per the information given by the accused about his stay along with the victim/P.W.3 he deputed H.C.1049/P.W.5 and he examined L.W.10 Shaik Peeru, L.W.11 Shaik Sukrabi, L.W.12 Shaik Begambi and recorded their statements and handed over to him. On 21.4.2015, he issued wound certificate of the victim/P.W.3 from Doctor T.Sharmila and forwarded the material objects seized by her to the Regional Science Laboratory for analysis through Assistant Commissioner of Police, West Zone, Vijayawada city. On 12.06.2015, he received RFSL report/Ex.P.11. On 17.6.2015, he received final opinion/Ex.P.12 from Dr.T.Sharmila. On 21.4.2015, he received certificate of potency/Ex.P.13 of the accused from Dr.B.Suryanarayana. On 30.4.2015, he took up further investigation and examined L.W.14/K.Sarada

Anil Kumar Head­Mistress, Akshra School and recorded her statement. The father of the victim i.e. Complainant/P.W.2 furnished the copy of School of

Secondary Certificate of the victim/P.W.3 marked as Ex.P.14 to show the date of birth of the victim as 2.2.1998. After completion of investigation, he filed charge sheet against the accused for the offences U/Sec.366.376(2)(n)(f) of IPC and U/Sec.4 and 6 of Protection of Children from Sexual Offences Act,2012.

3) My learned predecessor has taken cognizance of offence U/Sec.12, r/w.11 (4) of Protection of children from sexual offences Act and U/Sec.364, 344 of IPC alternatively U/Sec.354(b) of IPC and also U/Sec.9 of Prohibition of

Child marriage Act against the accused in Sessions Case No.46/2015. 

4)After appearance of accused, copies of all the documents were furnished to him as required u/Sec.207 of Cr.P.C.

5)On hearing both sides, on considering the material available on record, charges have been framed against the accused under section 366, 344 of IPC and U/Sec.12 r/w.4 of Protection of children from Sexual offences Act, 5 2012 alternatively under Sec.354 of IPC and when put the accused in

Telugu, he pleaded not guilty and claimed to be tried.

6)During the course of trial, on behalf of the prosecution, the defacto­Complainant who is no other than the mother of the victim was examined as PW1, The neighbours of P.W.1 who came to know about the missing of the victim were examined as P.W.2 and P.W.4. The victim was examined as P.W.3. The person who offered shelter to the victim and the accused to live as wife and children was examined as P.W.5. The Woman medical officer who examined the victim was examined as P.W.6. The Woman

Assistant Sub­Inspector of Police, II Town Police station who examined the victim and also examined P.W.1 to P.W.3 and recorded their statements was examined as P.W.7. The then S.I. of Police who received the report from

P.W.1 and registered the crime and did entire investigation including the arrest of the accused and filed charge sheet was examined as P.W.8 and Ex.P.1 to

Ex.P.14 were marked. 

7)After completion of evidence of prosecution, the accused was examined u/Sec.313 of Cr.P.C to answer the incriminating evidence available on record and while denying the same specifically, he reported no defence evidence to be adduced on his behalf. Evidence was closed accordingly.

8)Heard both sides. 

9)The point for determination is:

1)Whether the accused eloped with the victim/minor/P.W.3 in the name of love and marriage and prevailed over her and committed penetrated sexual assault repeatedly in the guise of love and marriage ?

2)If so, whether he committed the offences charged against him?

10)According to the Prosecution, on 22.3.2015, at about 7.30 P.M., while the S.I. of Police, Bhavanipuram/P.W.7 was present in the police station 6 as Station House Officer/P.W.2 went to the police station along with his daughter and his wife lodged a written report stating that the accused developed acquaintance with his daughter in the name of love and marriage without their knowledge and he registered the report/Ex.P.7 as F.I.R. in

Cr.No.130/2015 U/Sec.366A, 376(2)(n) of IPC and Section 6 of Protection of

Children from Sexual Offences Act,2012 and issued F.I.R./Ex.P.8 and on receipt of Copy of F.I.R., their Inspector/P.W.8 considering the nature of offence took up investigation and examined the witnesses and after completion of investigation and examined the witnesses and after completion of investigation, filed charge sheet.

11)The mother of the victim examined as P.W.1 deposed that about three years back, her daughter Madhavi left the house to get books, but did not return and by that time, she was aged 20 years, but she does not know the age recorded in the school certificate. Out of anxiety, they went to police station and informed the same and when she returned after one week and stated that she went to the house of their relatives on the ground that they admonished her that she was not studying well without any intimation in the house and she stated the same before the police.

She further deposed that subsequently, they performed the marriage of their daughter with the accused and out of wedlock, she was blessed with daughter and prior to the marriage, there was no love affair with him and she had no physical intimacy with the accused. She was treated as hostile for prosecution and on cross­examination by the Learned APP, she denied the various suggestions with reference to the case of prosecution particularly the statement purportedly recorded U/Sec.161 Cr.P.C. marked as

Ex.P1.

12)Similarly, the father of the victim who is the defacto­complainant herein is examined as P.W.2 deposed that about three years back, his daughter

Madhavi left the house to get books but did not return and by that time, she was aged 20 years,but he does not know the age recorded in the school 7 certificate. Out of anxiety, they went to the police station and informed the same and police obtained his signature on some blank paper and while identifying his signature marked as Ex.P.2. He pleaded ignorance about the contents. He further deposed that he did not give any report to the police that the accused eloped with his daughter Madhavi in the name of love and marriage and performed the marriage.

He further deposed that after she went to the house of their relatives on the ground that they admonished her that she was not studying well without any intimation in the house. He stated the same before the police. 

He further deposed that subsequently, they performed the marriage of their daughter Madhavi with the accused and out of wedlock she was blessed with daughter and prior to the marriage, there was no love affair with him and she had no physical intimacy with the accused. He was treated as hostile for prosecution and on his cross­examination by the Learned APP, he denied the various suggestions and the statements purportedly recorded

U/Sec.161 Cr.P.C. marked as Ex.P.3. 

13)Similarly, the victim who is examined as P.W.3 deposed that the accused is her husband and about three years back, her marriage was performed with the accused with the involvement of elders on both sides and out of wedlock, she was blessed with a daughter and prior to their marriage and that she never eloped with the accused and that she had no sexual intercourse with the accused prior to her marriage.

She further deposed that some time before marriage, she left the house when her parents admonished her that she did not score the marks without any intimation she went to the house of her relatives and on coming to know about the report to return home and stated the same before police and police obtained her signature and while identifying her signature on the statement recorded by the woman S.I. marked as Ex.P.4. She pleaded ignorance about the contents adding further that police referred her to the hospital and by the date of her marriage about three years back, she was 20 8 years old ,but the age was wrongly shown in the certificate. She was treated as hostile and on her cross­examination, she denied various suggestions and the statement purportedly recorded U/Sec.161 Cr.P.C. marked as Ex.P.5.

14)One of the relatives of the Complainant and moved along with the

Complainant in search of the victim examined as P.W.4 did not support the case of Prosecution.

15)The Head constable/P.C.1049 of Bhavanipuram Police station who visited the places where the accused took the victim with the assistance of his staff who was in custody went to various places and examined the witnesses examined as P.W.5 deposed to that affect.

16)The S.I. of Police who received the report from P.W.2 and issued

F.I.R. examined as P.W.6 deposed to that affect. 

17)The then S.I. of Police, who received the report from P.W.1 under

Ex.P.3 and issued F.I.R./Ex.P.8 examined as P.W.7 deposed to that affect.

18)The Inspector of Police, who did entire investigation and filed charge sheet examined as P.W.8 deposed as per the case of the Prosecution with reference to the investigation carried on by him.

19)According to the Prosecution , the victim was minor by the date of report and in proof of the same, they filed school certificate i.e. School of

Secondary Certificate, Marks memo marked as Ex.P.14 which shows that the victim was born on 2.2.1998 and by the date of giving report i.e. on 22.3.2015, she is proved to be 15 years. However, the parents of the victim and the victim examined as P.W.1 to P.W.3 was categorically deputed the correctness of the age given in the certificate claiming that she was major aged 20 years by the date of giving report. The fact that the victim was missing for some time at the relevant time is not in dispute. The cause of temporary absence of the victim from the residence is sought to be complained by the Complainant as if the victim left the house of their relative on the ground that they contradicted her for securing less marks in her studies. As per the case of the Prosecution , the defacto­complainant and his friends searching several places, but not traced 9 and finally they found the victim after long time in West Godavari District and brought her to police station and lodged a report. It is also an admitted fact that the marriage of the victim was performed with the accused, but according to the Prosecution, when she was minor , she eloped with the accused. He performed the marriage and on the pretest of love and marriage, she had sexual intercourse with the victim. However P.W.1 to P.W.3 have categorically contradicted the same as if there was no love between the victim and the accused and that subsequently, they performed the marriage of the victim that the accused with the involvement of elders. The case of the Prosecution is very clear to the facts of the case, but P.W.1 to P.W.3 sought to contradict the same for obvious reasons due to the subsequent development which led to their marriage. If really, the facts referred as deposed by P.W.1 to P.W.3 are true, there would not be any occasion for giving any report and even if such report is given, the investigation would not have resulted in this way. In other words, if really P.W.2 has not given such report and the investigation would not have proceeded in this direction and the Prosecution would not have reached the present stage.

20)Considering the nature of the offence, it is a more a case of the victim than a case for the investigation and in a case of this nature, the role of investigation officer is very limited to collection of evidence that would be given by the victim and her and near and dear by parents and others who are acquainted with the facts of the case,but not beyond. The investigation proceeded in the same lines, but fortunately and unfortunately, the defacto­ complainant and the accused sought to legalize the illegal activities such as eloping with the minor and performing the marriage etc as if their marriage was performed with the involvement of elders when she attained majority.

Therefore, in view of the subsequent development, P.W.1 to P.W.3 were made to give such evidence to get over the case , but not otherwise and the circumstances, which cannot be said that any other would give evidence in proof of any fact and therefore, the prosecution has given up the examination 10 of other witnesses for obvious reasons. Even P.W.4 who is relative of P.W.1 to

P.W.3 are acquainted with the facts of the case did not support the case of

Prosecution for obvious reasons. However, the fact that the accused is potent by the date of giving report is not in dispute. However, the medical report indicates that there is no recent evidence of sexual intercourse by past history cannot be ruled out. According to the Prosecution, the report was given when they were traced together to say that they were indulging in sexual offences, but it was contradicted by the medical evidence and it is not known whether there was any such sexual activity has taken place during the custody of the victim with the accused. However, since P.W1 to P.W.3 who are proved to be the material witnesses did not support the case of prosecution. In the absence of any evidence that could be given by P.W.1 to P.W.3, it cannot be imagined that the Prosecution would prove any fact irrespective of the evidence of P.W.1 to P.W.3. Thus, the Prosecution failed to prove its case and the accused is entitled for acquittal.

21)In the result, the accused is found not guilty for offences u/Sec. 6 of

Protection of Children from Sexual Offences Act 2012 alternatively

U/Sec.376(2) r/w.376(2)(i)(n) of IPC and U/Sec.9 of Prohibition of Child marriage Act,2006 and he is acquitted u/s 235(1) of Cr.P.C.

The bail bonds of accused shall be in force for a period of six months. 

Dictated to the Stenographer Gr.I, transcribed by him, corrected and

pronounced by me in the open Court, this the 13th day of July,2018.

Special Judge for Protection of Children 

from Sexual Offences­cum­Addl. Metropolitan Sessions Judge, Vijayawada.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE:

P.W.1 :K.L.Narayanamma None P.W.2 :K.Venkateswara Rao P.W.3 : K.Madhavi P.W.4 : N.Babu Rao P.W.5 :Maqbool Basha PW.6: B.A.S.Kumari P.W.7: Ramakrishnudu 11

P.W.8:I.Gopala Krishna

DOCUMENTS MARKED ON BEHALF OF PROSECUTION:

Ex.P.1161 Cr.P.C.statement of P.W.1 Ex.P.2Signature on the report Ex.P.3161 Cr.P.C. Statement of PW.2 Ex.P.4Signature on the statement of L.W.2 Ex.P.5161 Cr.P.C. Statement of L.W.2 Ex.P.6161 Cr.P.C. statement of L.W.4 Ex.P.7Report given by P.W.2 Ex.P.8F.I.R. Ex.P.9Mediators report dt.23.3.2015 Ex.P.10 Wound certificate Ex.P.11 F.S.L.report Ex.P.12 Final Opinion Ex.P.13 Potency certificate Ex.P.14 Secondary School Certificate. DOCUMENTS MARKED ON BEHALF OF DEFENCE:

N I L

MATERIAL OBJECTS

N I L

Special Judge for Protection of Children 

from Sexual Offences­cum­Addl. Metropolitan Sessions Judge, Vijayawada.

12

Tabular form to be appended to the judgment as per 

Rule 67 of Crl.R.P.

Sessions Case No.46/2015 on the file of the Spl. Judge forProtection of Children

from Sexual Offences Act, 2012 ­cum­ Addl. Metropolitan Sessions Judge, Vijayawada.

1.Sessions Case No.:S.C. No.46/2015

2.Name of the Complainant:State represented by Sub­Inspector of Police, Bhavanipuram P.S., Vijayawada City.

3.Name of the Accused:Shaik Munna @ Siva, S/o.Meeravali,aged about 22 years, Dargah Plots, Bhavanipuram, Vijayawada. 

4. Date of:

a)Offence:21.3.2015

b)Complaint:22.3.2015

c)Apprehension of :23.3.2015 Accused

d)Commencement of :16.4.2018 trial

e)Closure of trial:03.07.2018

f)Sentence or Order:13.7.2018

5.Sentence or Order:In the result, the accused is found not guilty of the offences charged u/Sec. 6 of Protection of Children from Sexual Offences Act 2012 alternatively U/Sec.376(2) r/w.376(2)(i)(n) of IPC and Section 9 of Prohibition of Child Marriage Act,2006 and he is acquitted u/s 235(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months 13

6.Explanation for delay: This case was taken as S.C. No.46/2015 on the file of this Court. On 31.7.2015 the accused appeared and copies of documents were furnished to him. Charges were framed against the accused on 8.3.2018. Prosecution side evidence commenced on 16.4.2018 and P.W.1 to P.W.8 were examined and Exs.P.1 to P.14 were marked on behalf of the prosecution and the evidence was closed on 3.7.2018. The accused was examined u/s.313 Cr.P.C on 5.7.2018. Heard both sides on 10.07.2018. Judgment pronounced on 13.07.2018.

Special Judge for Protection of Children 

from Sexual Offences­cum­Addl. Metropolitan Sessions Judge, Vijayawada.

Copy submitted to the Registrar (Judicial), Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, 

Copies to:

1. The Spl. Public Prosecutor, for trial of offences under PoCSO Act.

2. The Sub­Inspector of Police, Bhavanipuram Police Station, Vijayawada City

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:

AT VIJAYAWADA

PRESENT: SRI M.VENGAIAH, III Additional District Judge, FAC II Additional District Judge,

Wednesday, this the 16th day of August, 2017

O.S.No.34/2014

Between:-

Kadavakollu Gangamma …. Plaintiff. AND

Matta Padma …. Defendant

This suit coming in the presence of Sri G.Venkateswara Rao, Advocate for plaintiff and Sri P.Gowtham Reddy, Advocate for defendant and the matter having stood over for consideration till this day, the court delivered the following:

JUDGMENT

This is a suit filed by the agreement holder for recovery of sale consideration paid for breach of terms of contract as an alternative for specific performance. Pleadings briefly stated as under:-

2)That the defendant represented that she is the absolute owner of the property described in the schedule annexed to the plaint and referred to as the plaint schedule property, for short ‘schedule property’ and offered to sell the same to the plaintiff and believing her representation the plaintiff negotiated with the defendant to purchase the schedule property and after negotiations the plaintiff and defendant came to an understanding on 29.01.2011 settling the terms and conditions of sale fixing the sale consideration of Rs.10,60,000/- and accordingly the defendant received the total sale consideration of

Rs.10,60,000/- and executed a possessory sale agreement on the same day i.e., on 29.01.2011 in favour of the plaintiff incorporating the terms and conditions agreed. As agreed the defendant did not deliver possession of the property to the plaintiff inspite of repeated demands. In view of the defendant’s evasive attitude, the plaintiff placed the matter before the mediators and elders viz.,

Chalamalasetty Suresh and Chinta Ramesh on 16.08.2013 for settlement and after discussions the defendant has agreed before the mediators and elders to return the sale consideration of Rs.10,60,000/- with interest @ 24% p.a., from 29.01.2011 and while promising to honour the settlement before the elders he has been postponing to return the sale consideration to the plaintiff with interest on one reason and the other.

It is further submitted that as per the recitals of the agreement the plaintiff is entitled to enjoy the schedule property absolutely without any obstruction and as the defendant has violated the terms and conditions as per the agreement he is bound and liable to return the sale consideration with interest. Vexed with the defendant’s dilatory tactics the plaintiff got issued a registered legal notice dt.11.01.2014 demanding the defendant to return the sale consideration of Rs.10,60,000/- with interest @ 24% p.a., from 29.01.2011 and the defendant having acknowledged the said notice neither paid the sale consideration with interest and on the other hand he got issued a reply notice with all false and untenable allegations. Therefore, the plaintiff is constrained to file the suit. Hence the suit.

3)The defendant appeared through counsel and filed written statement denying various submissions/averments made in the plaint generally but pleadings specifically as under:-

It is submitted that the defendant is the absolute owner and in peaceful possession and enjoyment of the schedule property, which was purchased by her with her self earnings. The plaintiff is running money lending business in Vijayawada City. While the matter stood thus, the defendant has borrowed an amount of Rs.2,00,000/- about two years ago on weekly interest basis i.e., Rs.4,000/- per week. At the time of borrowal of the said amount, the plaintiff took four empty signed promissory notes, two empty signed Non Judicial stamp papers and original possessory sale agreement dt.13.08.2010 from the defendant as collateral security for the said debt. After that the defendant paid the interest up to 1st week of June, 2013. Thereafter the defendant paid the principal amount of Rs.2,00,000/- in the month of July, 2013 and the defendant has to pay the 6 weeks interest. On 29.07.2013 the defendant visited the plaintiff’s house along with the interest amount payable and requested the plaintiff to receive the balance and to return the empty signed promissory notes and empty signed stamp papers. On that the plaintiff illegally demanded the defendant to pay an amount of Rs.1,00,000/-. On that the defendant informed the same to her husband. On that the defendant and her husband went to the plaintiff’s house and requested her to return those empty signed documents, but the plaintiff and her husband threatened the defendant and her husband with dire consequences. On that the defendant and her husband went to II Town Police Station on 30.07.2013 and lodged report against the plaintiff for her mischievous behavior against the defendant and the II Town Police received the same and issued a receipt to that effect. It is further submitted that even after the payment of the principal amount the plaintiff intentionally failed to return the empty signed promissory notes and empty signed stamp papers. Thereafter the plaintiff colluded with his kith and kin and fabricated the empty stamp papers and converted the same as agreement of sale. In fact, no consideration was passed through the agreement of sale and no transaction took place between the plaintiff and the defendant at any point of time with regard to the schedule property, much less on 29.01.2011. The alleged sale agreement is fabricated one. The plaintiff has no right to seek specific performance of sale agreement dt.29.01.2011 or for return of the amount as the same was created, fabricated and ante dated one. There is no privity of contract between the plaintiff and defendant. It is further submitted that the plaintiff before filing the suit issued two notices with different dates with different versions. The defendant issued detailed reply denying the sale agreement. As there was no consideration passed from the plaintiff to the defendant, the defendant is not liable pay the suit amount to the plaintiff. Therefore, prayed to dismiss the suit with costs.

4)Based on the pleadings, material available on record and on hearing both sides my learned predecessor settled the following issues for determination of the trial:-

1) Whether plaintiff is entitled for suit claim as prayed for?

2) To what relief?

5)During the trial, on behalf of the plaintiff, the plaintiff herself got examined as P.W.1 and got examined the attestors of the agreement as P.Ws.2 and 3 and the mediators/elders referred in the plaint as P.Ws.4 and 5 and got marked Exs.A1 to A6. Similarly, on behalf of the defendant, the defendant herself got examined as D.W.1 and also got examined one of the neighbors as

D.W.2, but no documents were marked.

6)Heard both sides.

ISSUE NO.1 - Whether plaintiff is entitled for suit claim as prayed for?

7)The plaintiff examined as P.W.1 deposed as per pleadings both in proof of execution of agreement of sale dt.29.01.2011 by the defendant on receiving the consideration of Rs.10,60,000/- while referring to the terms of the agreement of sale including demand for return of consideration for breach of terms of the agreement and in proof of execution of agreement the plaintiff got examined P.Ws.2 and 3 as attestors and got marked the possessory agreement of sale dt.29.01.2011 executed by the defendant in favor of the plaintiff as

Ex.A1. The plaintiff also filed possessory agreement of sale executed by one

Yeturi Subba Rao and others in favour of the defendant on 13.08.2010 in respect of the schedule property marked as Ex.A2. The plaintiff also filed similar agreement of sale dt.11.05.2010 executed by one Bheemisetty Venkata

Subbamma in favour of vendor of the defendant marked as Ex.A3. Similarly, the plaintiff also filed sale deed dt.25.07.2003 executed by Garikamukku

Venkateswara Rao in favour of Bheemisetty Venkata Subbamma, the vendor of the vendor of the defendant. The office copy of the legal notice dt.11.01.2014 was marked as Ex.A5 and reply notice dt.25.01.2014 was marked as Ex.A6. As

I already observed, the evidence of the plaintiff went on the lines of her pleadings both in proof of execution of agreement of sale and the default committed by the defendant, including the demand for payment of the sale consideration for breach of terms of agreement. The plaintiff got examined the attestors for execution of the agreement of sale Ex.A1 as P.Ws.2 and 3. it is the evidence of P.W.2 that the defendant represented that she is the absolute owner of the schedule property and offered to sell the same to the plaintiff and after negotiations the plaintiff and defendant came to an understanding on 29.01.2011 settling the terms and conditions of sale including the sale consideration of Rs.10,60,000/- and accordingly the defendant executed an agreement of sale with possession of the property on 29.01.2011 in favour of the plaintiff incorporating the terms and conditions agreed and herself and one

Durgarao acted as attestors of agreement of sale and the plaintiff paid the consideration of Rs.10,60,000/- to the defendant in her presence and the defendant acknowledged the receipt of the sale consideration and executed the agreement with reference to Ex.A1. She further deposed that as per the recitals of the agreement the plaintiff is entitled to enjoy the schedule property absolutely without any obstruction. She further deposed that subsequently she came to know that the defendant did not deliver the possession of the schedule property to the plaintiff inspite of repeated demands and also failed to return the sale consideration and on that the plaintiff filed the suit for recovery of sale consideration. Similarly, another attestor examined as P.W.3 deposed in proof of execution of agreement Ex.A1 by the defendant for consideration received and further deposed the breach of terms of agreement as deposed by P.W.2.

Similarly, the elders/mediators referred by the plaintiff were examined as

P.Ws.4 and 5 and they also deposed on the same lines. On the other hand, the defendant examined as D.W.1 denied the signatures shown to her on Ex.A1 as of her signatures, but admitted the agreements referred as link documents.

8)It is the evidence of the defendant as D.W.1 that; “The signatures shown to me on Ex.A1 are not mine. Ex.A2 is the sale deed in my name executed by Yeturi Adinarayana. Ex.A3 and Ex.A4 are the link documents of my property purchased under Ex.A2. I am not having any documentary proof that I borrowed the amount from the plaintiff. I am not having any documentary proof about my repayment of the loan amount borrowed from the plaintiff.”

During further cross-examination she deposed that; “It is true I pleaded that at the time of the borrowal of the amount from the plaintiff she has taken from me four empty signed promissory notes, two empty signed non-judicial stamp papers, and the original possessory sale agreement dt.13.08.2010 for collateral security. I do not know whether in my written statement and in my affidavit in chief I did not mention that I handed over Ex.A3 and A4 to the plaintiff.”

However denied the suggestions given contra. However, in the chief-examination the defendant deposed reiterating her pleadings in the written statement as well as the contentions raised in the legal notice at the first instance. In fact, the reply notice sent by the defendant marked as Ex.A6 represents the pleadings of the defendant. As seen from the record all the documents Exs.A1 to A6 were filed along with the plaint and the written statement was filed only after going through the material filed by the plaintiff and in the written statement, as I already observed, she categorically pleaded that at the time of borrowal of the amount the plaintiff took 4 empty signed promissory notes and two empty signed Non Judicial stamp papers and agreement of sale dt.13.08.2010 as collateral security for the said debt and further pleaded that the plaintiff colluded with her kith and kin and fabricated the empty stamp papers and converted the same as agreement of sale.

Therefore, practically there was no denial of the fact that the agreement of sale

Ex.A1 was executed by the defendant with reference to her signatures found on the agreement, though she contended as if the blank signed stamp papers were fabricated. However, according to the defendant the stamp papers containing the signatures of the defendant were fabricated as agreement of sale with the help of her kith and kin. When that be the case, there is no justification on the part of the defendant to deny her signatures found on the agreement Ex.A1 confronted during cross-examination. However, the plaintiff apart from her evidence as P.W.1 coupled with the evidence of attestors as

P.Ws.2 and 3 proved Execution of Ex.A1 and as I already observed P.Ws.2 and 3 deposed in proof of execution of agreement of sale Ex.A1 for consideration received. During cross-examination of P.W.2 it was elicited that the plaintiff is her tenant and she has no relationship with the plaintiff or defendant.

Similarly, during cross-examination of P.W.3 it was elicited that the plaintiff is her neighbor. There is no other relationship between the plaintiff and P.Ws.2 and 3. Though P.Ws.2 and 3 were subjected to cross-examination nothing has been elicited to discredit their testimony on any ground what-so-ever. It is only suggested to P.W.2 that she is deposing false on the ground that plaintiff is her tenant and it was suggested to P.W.3 that she is deposing false to help the plaintiff to oblige the plaintiff on the ground that she is her neighbor which of course they denied. On the other hand, they are proved to be probable witnesses to the execution of agreement Ex.A1. Similarly, P.Ws.4 and 5 who are referred as mediators to support plaintiff case and their evidence in proof of agreement went on the lines of P.Ws.2 and 3 as if they were also present at the time of the transaction. So to say, that they are the elders for the negotiations or settling the terms of agreement. The cross-examination of P.Ws.4 and 5 indicates that they are independent standing at equal distance both from the plaintiff and from the defendant and they are proved to be known to the plaintiff and defendant. Thus, plaintiff placed the valuable evidence in proof of the negotiations for execution of agreement and the execution of agreement

Ex.A1 for consideration received. Similarly, the fact that the so called link documents of the defendant marked as Exs.A2 to A4 were also proved to be in the custody of the plaintiff. Very curiously Exs.A1 to A4 are the possessory agreements of sale with such recitals as if they are sale deeds conveying right, title and possession, but with a rider that they have no objection for any sale deed executed by the Government in favor of the purchasers with further recital to co-operate to execute any such document to convey title if the sale deed is executed by the Government in their favor. From the evidence of P.Ws.1 to 5 it is proved that the agreement Ex.A1 was executed by the defendant for consideration received. In fact, the plea of the defendant that it is not supported by consideration places burden on the defendant but there is no evidence adduced by the defendant either to prove that she borrowed the amount from the plaintiff or that she paid any amount towards interest or

principal. The evidence of D.W.2 is only to prove that Government of Andhra

Pradesh has taken away the houses situated at hill ‘poramboke’ and the schedule property situated at hill ‘poramboke’ and it is Government land and no patta was given by the Government of Andhra Pradesh either in the name of defendant or anybody else. The Government of Andhra Pradesh evicted D.W.2 and as such there was no house in the name of the defendant. This is totally inconsistent from the pleadings and evidence of the defendant. But the defendant asserted that she is the absolute owner and in peaceful possession and enjoyment of the schedule property. As per the recitals of agreement Ex.A1 the possession was delivered and in fact the agreement is titled as possessory agreement of sale as in the case of Exs.A2 to A4. Admittedly, the possession was not delivered. Therefore, it appears that it was treated as unpossessory agreement of sale for the purpose of exhibiting the agreement and it is rightly so. Therefore, the evidence of D.W.2 that the defendant is not in possession or owner of the property as on date is not justified. Even otherwise, it is but to hold that the defendant has no title to the property though she claimed to have possossory title, but possession was not delivered to the plaintiff. Thus, the plaintiff treated the breach of agreement for not complying the terms of agreement by delivering possession of the property and it is apparent on the face of the record that she cannot also convey title. Thus, it is proved that the agreement has become unenforceable. The defendant who received consideration is liable to repay the same under law. This suit is filed within three years from the date of agreement of sale and it is within time. Thus, the plaintiff is entitled for recovery of the amount paid under the agreement Ex.A1 as an alternative for specific performance. So far as interest, since there is no term for payment of interest in case of default, otherwise since there was demand made by the plaintiff before filing the suit, the plaintiff is entitled for reasonable interest. The point is answered accordingly.

ISSUE NO.2 – To what relief?

9)In the result, the suit is decreed for Rs.10,60,000/- with proportionate costs and interest @ 12% p.a., from the date of suit till the date of decree with further interest @ 6% p.a., from the date of suit till the date of realization on the principal sum of Rs.10,60,000/-.

Typed to my dictation by the Grade-II Steno, corrected and

pronounced by me in the open court, this the 16th day of August, 2017.

III Addl. District Judge, FAC/ II Addl. District Judge, Vijayawada.

APPENDIX OF EVIDENCE

FOR PLAINTIFFFOR DEFENDANT

P.W.1:K.GangammaD.W.1: Matta Padma P.W.2: B.Durga MalleswariD.W.2: T.Padma P.W.3: R.Durga Rao P.W.4: Ch.Suresh P.W.5: Ch.Ramesh

Documents marked on behalf of Plaintiff:

Ex.A1: Agreement of sale dt:29.01.2011 Ex.A2: Agreement of sale dt:13.08.2010 Ex.A3: Agreement of sale dt:11.05.2010 Ex.A4: Agreement of sale dt:25.07.2003 Ex.A5: Office copy of the legal notice Ex.A6:Reply notice dt:21.01.2014 by the defendant.

III Addl. District Judge, FAC/ II Addl. District Judge, Vijayawada.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:

AT VIJAYAWADA

PRESENT: SRI M.VENGAIAH, III Additional District Judge, FAC II Additional District Judge,

Wednesday, this the 16th day of August, 2017

O.S.No.34/2014

Between:-

Kadavakollu Gangamma wife of Sambasiva Rao, 36 yrs, Properties, D.No.9-41-133, Near Anjaneyavagu, Vijayawada. ….Plaintiff. AND

Matta Padma, W/o Sankar Reddy, Indian, 50 yrs, Properties, D.No.6-21-40, Opp:2 Town Police station, Anjaneyavagu, Vijayawada.

.... Defendant

Suit for recovery of Rs.18,23,200/- being the principal and interest amount due under agreement of sale dt:29.01.2011 executed by the defendant in favour of plaintiff agreeing to repay the same with interest at 24% p.a. and for costs.

Suit presented on:27.01.2014 Suit numbered on:06.02.2014

The value of the suit for purpose of Jurisdiction is Rs.18,23,200/- U/s 50(1) of A.P.C.F & S.V.Act. On which a court fee of Rs.20,726/- is paid U/s 20 of A.P.C.F & S.V Act.

Cause of action for the suit arose on 29.01.2011 when the defendant agreed to sell the plaint schedule property to plaintiff and subsequently on the same date when the defendant failed to honour the terms and conditions of the Agreement of sale by not delivering the plaint schedule property to the plaintiff and subsequently on 16.08.2013 when the plaintiff place the matter

before the mediator and settlement and subsequently on the same day when

the defendant agreed to return the sale consideration with interest and subsequently when the defendant postponing to return the sale consideration to the plaintiff and subsequently on 11.01.2014 when the plaintiff got issued a registered notice to the defendant demanding her to repay the sale consideration with interest and subsequently even after issuance of the notice, when the defendant did not repay the sale consideration with interest and at Vijayawada where the transaction took place and where the suit is to be filed before this Hon’ble Court.

This suit coming in the presence of Sri G.Venkateswara Rao, Advocate for plaintiff and Sri P.Gowtham Reddy, Advocate for defendant and the matter having stood over for consideration till this day, the court doth order and decree:

1. that the suit is decreed for Rs.10,60,000/- with proportionate costs and interest @ 12% p.a. from the date of suit till the date of decree with further interest @ 6% p.a. from the date of suit till the date of realization on the principal sum of Rs.10,60,000/-.

Given under my hand and the seal of this court, this the 16th day of August, 2017.

III Addl. District Judge, FAC/II Addl. District Judge, Vijayawada.

MEMORANDUM OF COSTS

MEMO OF COSTS

For PlaintiffFor Respondent Rs.Rs.NIL

1.Stamp on Vakalat2-00-

2.Plaint stamps20726-00- 3Process64-00- 4Pleaders fees30,000-00- 5Junior Pleaders fees10,000-00- 6Writing charges50-00- 7Type charges100-00- TOTAL60,942-00 -

III Addl. District Judge, FAC/Chairman, MAC Tribunal-cum- II Addl. District Judge, Vijayawada.

1

 IN THE COURT OF THE METROPOLITAN SESSIONS JUDGE­CUM­

SPL. JUDGE FOR TRIAL OF NDPS ACT CASES: VIJAYAWADA

Present: Sri M.Vengaiah, Spl.Judge for SPE & ACB Cases, FAC/Metropolitan Sessions Judge

Monday, this the 3rd day of July, 2017

SESSIONS CASE NO.130/2015

(Crime No.683/2014 of G.R.P. Vijayawada City) 

COMPLAINANT:The State, Sub­Inspector of Police, G.R.P.,

Vijayawada City.

NAME OF THE ACCUSED:

1) Chinthala Paidiraju, S/o Ramana, 29 years, Rao vari Streeet, Bobbili, Vijayanagarama District.

2) Manupati Lalitha, W/o Srinu, 50 years, Epurupalem, Cherala Mandal, Prakasam District.

OFFENCE CHARGED: U/s. 8 (c ) r/w. 20 (b)(ii)(B) of NDPS Act.

PLEA OF THE ACCUSED: Not guilty

FINDING OF THE COURT & SENTENCE OR ORDER:-

In the result, the accused No.1 is found not guilty for the offence u/s 8 (c) r/w 20 (b)(ii)(B) of NDPS Act and accordingly he is acquitted U/S 235(2) Cr.P.C. of the said charge. The bail bonds of

Accused No.1 shall stand cancelled. The M.Os.1 to 4 which were already given towards interim custody, are ordered to be destroyed according to law, after expiry of appeal time. The case against A2 was already abated, since died.

This Sessions Case coming 15.06.2017 for final hearing before me in the presence Smt.M.P.Prasuna Kumari, Spl. Public Prosecutor for the State and of Sri. Ram JP, Advocate for A1 and A2 died and upon perusing the oral and documentary evidence on record and heard arguments on both sides, and the matter having stood over till this day for consideration, this court delivered the following:­

JUDGMENT 

This is a criminal prosecution came to be launched against 2 the accused 1 and 2 for possessing ganja, a Narcotic Drug for sale punishable u/s 8 (c) r/w 20 (b)(i)of Narcotic Drugs and Psychotropic

Substances Act, 1985 for short ‘NDPS Act’, as a result of suo motu case registered and investigated by the then Sub­Inspector of Police (P.W.3) in

Cr.No.683/2014 of Government Railway Police Station, Vijayawada.

2)The case of the prosecution briefly stated is as follows:­

On 26.12.2014 at about 6.30 a.m., on receipt of credible information the then Sub­Inspector of Police, G.R.P.S. (P.W.3) along with his staff were moving on platform No.10 at 7.00 a.m., and on southern side he noticed two persons, a male and a female running on seeing them and on suspicion he secured the persons present there viz., Lanka

Anand (P.W.1) and Mogala Raju (P.W.2) to act as mediators and apprehended them through his constables including a woman constable and interrogated them as to why they were trying to escape on seeing them and the male person revealed his identity as A1 herein and Lalitha

A2 herein and when separated them and interrogated both of them stated that they purchased ganja from unknown persons at

Bhubaneswar and that they travelled in general bogie from Bhubaneswar to Vijayawada and they became friends and that when they tried to go away from Railway Station they were apprehended and both of them were in possession of one black colour bag each and when interrogated about the contents of the bag they confessed that they contained ganja and then he informed the accused that transporting or possession of ganja is an offence and informed that they have right to be produced

before a Gazetted Officer, but they stated that they were not exercising

that option and asked him to seize the bags and contents therein. He secured an electronic balance from G.R.P.S., and weighed the ganja from each of the bag. The ganja in each bag excluding the bag weight was 5 kgs., He separated 100 gms., from each of the bags for sample purpose 3 into a polythene cover and wrapped the same in a brown paper and affixed slips containing the signatures of himself, mediators and both the accused and also noted the weight of the ganja on the slips affixed to the contraband as well as sample packets. He scribed mediators report with regard to the apprehension of the accused, seizure of ganja, drawing of samples in which himself, both the accused and both the mediators signed. The events took place from 7.00 to 8.30 a.m., Then he took them to police station along with material and registered the mediators report Ex.P1 as FIR in Cr.No.683/2014 for the offence u/s 8 (c) r/w 20

(b)(i) of NDPS Act and issued FIR Ex.P3 which was sent to the Court and arrested the accused and sent them for remand. He sent the intimation in writing to the Inspector of Police informing the above said events under Ex.P3. He sent the sample to the chemical examiner through the

Deputy Superintendent of Police under letter of advice, copy of which was marked as Ex.P4. He received opinion from the chemical examiner under Ex.P5 that the sample is ganja. Then he filed the charge sheet against the accused for the offence u/s 8 (c) r/w 20 (b)(i) of N.D.P.S. Act, 1985.

3)My learned predecessor has taken cognizance of the offence u/s 8 (c) r/w 20 (b) (i) of NDPS Act, 1985. He issued process for the appearance of the accused. In pursuance of it A1 appeared but reported that A2 died and report filed to that effect was recorded and case abated against A2. After appearance/production of the accused No.1, copies of all documents were furnished to him as required u/s 207 Cr.P.C., On hearing both sides and considering the material on record my learned predecessor has framed a charge against the accused u/s 8 (c) r/w 20 (b)

(ii)(B) of NDPS Act and when put to the accused in Telugu, he pleaded not guilty and claimed to be tried.

4)During the course of trial, on behalf of the prosecution the 4 mediators were examined as P.Ws.1 and 2 and the S.I. of Police, who did the entire investigation and filed charge sheet was examined as P.W.3 and Exs.P1 to P5 and M.Os.1 to 4 were marked.

5)After completion of evidence of the prosecution, the accused (A1), herein after referred to as the ‘accused’ was examined U/s 313

Cr.P.C., to answer the incriminating evidence available on record and while denying the same specifically he reported no defence evidence to be adduced on his behalf. Evidence is closed accordingly.

6)Heard both sides.

7)The point for determination is:­ “Whether the accused No.1 and another (A2) were arrested when they were found in possession of ganja of 5 kgs., each if so, whether the accused committed the offence charged against him beyond all reasonable doubt?”

POINT:­

8)As seen from the mediators report Ex.P1, on 26.12.2014 at 7.00 a.m., as per the information received by the S.I. of Police,

Government Railway P.S., (P.W.3) while on duty, he along with his staff as per the information received by him came to platform No.10 on southern side and found one male and one female running with black bags on seeing the police and the police arrested them under suspicion and enquired about the contents of the bags and since they did not give proper reply the S.I. of Police (P.W.3) separated them and questioned them, on which the male person who is A1 herein disclosed his identity as resident of Raovari Veedhi, Bobbili, Vijayanagaram District and he studied up to 10th class and living on cooly work and performed marriage about 12 years back and staying at his house and he was blessed with two sons and maintaining the family by attending cooly work and his father is running shoe shop near Anjaneyaswamy centre and he became 5 habituated to alcohol and the amount he was earning was not sufficient and with an intention to earn money easily he purchased 5 kgs., of ganja for Rs.15,000/­ from an unknown person at Bhubaneswar and kept it in a black bag and got down the train at 5.30 a.m., on that day i.e., on 26.12.2014 and during his journey in the compartment A2 who was getting ganja acquainted with him and she also got down along with him and they wanted to sell the same in the local area at higher rate and after getting train while they were going the police stopped him and the

S.I. of Police searched the bag and confirmed that there is ganja and he was asked whether he wanted to be searched by Gazetted Officer but A1 expressed that there was no need to go to Gazetted Officer and they are at liberty to be checked by anybody, whereupon the S.I. of Police (P.W.3) informed the accused that possession of ganja and transportation is an offence and therefore, he arrested him under N.D.P.S. Act and thereupon

P.W.3 secured the balance through his staff and weighed and found 5 kgs., and separated 100 gms., for chemical analysis in a polythene cover, kept in safe and pasted the slips with his signature and the signatures of the mediators and the remaining ganja was seized by pasting slips containing the signatures of the mediators and the remaining ganja was seized by pasting slips containing their signatures and the same was repeated in the case of A2, but the confession of A2 disclosed that she was involved in several theft cases at various places etc.,

9)The S.I. of Police examined as P.W.3 deposed as per the case of the prosecution. What is relevant is the fact that even according to the prosecution they got down the train at 5.30 a.m. It is not known how and where they spent time till 7.00 a.m. According to the prosecution, the accused were arrested when they were going out in the platform

No.10 on southern side. There is no whisper about the train in which they travelled and the tickets for travelling from such place of origin to 6 the place of destination i.e., Vijayawada. It is not as though they travelled without any ticket. Even according to the prosecution they were going out from platform No.10 when they were arrested. It is not as though they were going out from a different route to escape the checking staff of the Railway Department. As I already observed, the entire report

Ex.P1 does not disclose that the S.I. of Police enquired the accused for the ticket. Therefore, there is no material to show that they travelled by train at the relevant time and that they were arrested at that time while in possession of ganja. P.W.1 is a Biryani vendor. Even according to

P.W.1 on 24.12.2014 at 5.30 a.m., while he along with Raju were on platform No.10 selling Biryani the S.I. of Police, G.R.P.S., and constables were proceeding to southern side entrance while checking the platform

No.10 and at that time one male and one female with black colour luggage bags in their possession on seeing the police tried to escape. The

S.I. of Police got them apprehended and interrogated them and those persons confessed that the bags in their possession contained ganja. He identified the accused herein and P.W.1 further deposed that the accused confessed that they were addicted to drinking and that they purchased the ganja at Bhubneswar and the S.I. of Police seized the bags from the accused and when the zips were opened they found ganja. The

S.I. of Police by sending a constable secured the balance and when weighed each bag contained ganja of 5 kgs., The contents of the bag were poured in polythene covers and they were weighed and out of the contents of each bag 100 gms., was separated for sample purpose into a polythene cover. The S.I. of Police obtained the signatures of himself, another mediator, the S.I. of Police and the accused and affixed the same to the bags as well as sample packets etc., and he further deposed that the S.I. of Police himself scribed the mediators report Ex.P1. Similarly, another mediator examined as P.W.2 who is also a Biryani vendor 7 deposed on the lines of P.W.1. What is relevant is the fact that the sample drawn was not sealed at the place of arrest. They were simply taken into a polythene cover and poured and slips containing the signatures of mediators and the S.I., and the accused were pasted on them. However, as per the letter of advice Ex.P4 there is no seal affixed.

Therefore, he sent the sample according to his choice, but the laboratory analysis opinion received from the Government Chemical Examiner,

Prohibition and Excise, Kakinada marked under Ex.P5 disclosed that they received samples of substance on 22.01.2015 with seals correct and intact from the Deputy Superintendent of Police, Railway Police,

Vijayawada with his letter of advice in Dis.No.1/2015, dt.9.1.2015 and the same was analysed and found that the samples are ganja. As I already observed, even according to P.Ws.1 to 3 the sample was not sealed at the place when the samples were drawn at the place of arrest and as they referred herein before the letter of advice Ex.P4 sent by

P.W.3 does not disclose that it bears sample seal used in sealing material objects and outermost coverage in column No.9 of the letter of advice.

Therefore, there is no evidence to show that the samples used by P.W.3 were subjected to analysis and the material was found to be ganja. The case of the accused is one of total denial. There is no investigation either to know the source of origin or to know the source of destination. The case of the prosecution and also the evidence of P.Ws.1 to 3 discloses that after the bags were opened and contents were found that itself disclosed and it was disclosed to the accused and at that time he was asked whether he can be searched by the Gazetted Officer. Though there is no need to search such material by Gazetted Officer since it is not a search of person they sought to comply as if it is mandatory. However, even according to P.W.3 as per the prior information the S.I. of Police arrested the accused but such information was not intimated to his 8 superiors or it was entered in any diary. Therefore, in the circumstances it cannot be said that the accused were arrested while in possession of ganja. Thereby, the prosecution failed to prove its case and the accused is entitled for acquittal.

10)In the result, the accused No.1 is found not guilty for the offence u/s 8 (c) r/w 20 (b)(ii)(B) of NDPS Act and accordingly he is acquitted u/s 235 (2) Cr.P.C., of the said charge. The bail bonds of

Accused No.1 shall stand cancelled. The M.Os.1 to 4 which were already given towards interim custody, are ordered to be destroyed according to law, after expiry of appeal time. The case against A2 was already abated, since died.

Dictated to the Grade­II Steno of this Court, transcribed and

typed by him, corrected and pronounced by me in the open court on this the 3rd day of July, 2017.

Spl. Judge for SPE & ACB Cases, FAC/ Metropolitan Sessions Judge, Vijayawada.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHLAF OF

FOR PROSECUTION FOR DEFENCE

P.W.1: Lanka Anand ­­None— P.W.2: Mogala Raju P.W.3: K.Manmadha Rao

DOCUMENTS MARKED ON BEHALF OF PROSECUTION:

Ex.P1 :Mediators report dt:26.12.2014 at 7.00 A.M. Ex.P2 : FIR in Cr.No.683/2014 of GRP, Vijayawada, dt:26.12.2014 Ex.P3 : Letter addressed by PW3 to Inspector of Police dt:26.12.2014 Ex.P4 : Xerox copy of Letter of advice Ex.P5 : C.E.Report, dt:30.10.2015

DOCUMENTS MARKED ON BEHALF OF DEFENCE : ­Nil­

MATERIAL OBJECTS MARKED: M.Os.1 & 2 : Contraband (Two bags). M.Os.3 & 4: Two unspent portion of samples.

Spl. Judge for SPE & ACB Cases, FAC/ Metropolitan Sessions Judge, Vijayawada.

9

TABULAR FORM TO BE APPENDED TO THE JUDGMENT AS

PER RULE 67 OF THE CRIMINAL RULES OF PRACTICE

SESSIONS CASE NO.130/2015

(Crime No.683/2014 of G.R.P. Vijayawada City) 

01.Serial No.:­­­

02.Sessions Case No.:S.C.NO. 130/2015

03.P.R.C.No.: ­­

04.Crime No. & Name of:Crime No.683/2014 of G.R.P. the Police Station.Vijayawada City

05.Description of the accused: 

1) Chinthala Paidiraju, S/o Ramana, 29 years, Rao vari Streeet, Bobbili, Vijayanagarama District.

2) Manupati Lalitha, W/o Srinu, 50 years, Epurupalem, Cherala Mandal, Prakasam District. 

06.Date a) Offence:26.12.2014 of

b) Complaint:26.12.2014

c) Apprehension:26.12.2014

d) Released on Bail:A1:12.02.2015 A2:11.02.2015

e) Commitment:­­

f) Commencement of trial:06.12.2016

g) Closure of trial:17.03.2017

h) Sentence of Order:03.07.2017 10

07.RESULT: In the result, the accused No.1 is found not guilty for the offence u/s 8 (c) r/w 20 (b)(ii)(B) of NDPS Act and accordingly he is acquitted U/S 235(2) Cr.P.C. of the said charge. The bail bonds of Accused No.1 shall stand cancelled. The M.Os.1 to 4 which were already given towards interim custody, are ordered to be destroyed according to law, after expiry of appeal time. The case against A2 was already abated, since died.

 08.Explanation for the Delay: This case was taken on file on 24.06.2015. On 20.05.2016 the accused No.1 is examined and framed charge against him for the offence U/s.8 (c) r/w 20

(b) (ii) (B) of NDPS Act as amended by Act 9 of 2001 read over and explained to him in Telugu and he pleaded not guilty and claimed to be tried. On 06.12.2016 P.W 1 is examined and Ex.P1 is marked and Mos 1 to 4 are marked. On 07.03.2017 PW.2 is examined. On 17.03.2017 PW3 is examined and Exs.P2 to P5 are marked. On 10.05.2017 accused No.1 is examined under Sec.313 Cr.P.C., and on 15.06.2017 arguments heard. On 03.07.2017 judgment is pronounced. Hence, there is no delay. 

 Spl. Judge for SPE & ACB Cases, FAC/ Metropolitan Sessions Judge, Vijayawada.

To

The Registrar (Judicial),

Hon’ble High Court of Judicature at Hyderabad

for the State of Telangana and the State of Andhra Pradesh.