Sri N.Malyadri

II Additional District Judge Amalapuram

II Addl District Court Amalapuram · East Godavari · Andhra Pradesh

Sri N.Malyadri, II Additional District Judge Amalapuram, is posted at II Addl District Court Amalapuram, East Godavari, Andhra Pradesh, India. 507 court orders on record since 2017. 5 judgments with full text available. Primarily handles MVOP, OS, CRLMP cases.

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AS/100205/2012 Appeal Dismissed

Vallu Ramana vs Sate of Andhra Pradesh and 2 others

28 Feb 2018

IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE

EAST GODAVARI AT KAKINADA

Present: Sri N.MALYADRI III Additional District Judge

Wednesday, the 28th Day of February, 2018

A.S.No.205 of 2012

AND I.A.No.2335 of 2016 and I.A.No.2338 of 2016 and I.A.No.3151 of 2012 in A.S.No.205 of 2012

A.S.No.205 of 2012

Between:

Vallu Ramana ... Appellant / Plaintiff.

AND

1.State of Andhra Pradesh, represented by District Collector, East Godavari, Kakinada.

2.Endowments Department, represented by Deputy Commissioner, P.R.College Road, Kakinada.

3.Sri Subrahmanyeswara Swamy Vari Devasthanam, represented by it’s Executive Officer, Indrapalem, Kakinada Rural.

... Respondents / Defendants.

On appeal against the decree and Judgment dated 19.10.2012 passed by the I Additional Senior Civil Judge, Kakinada in O.S.No.17/2011.

Between:

Vallu Ramana ... Plaintiff.

AND

1.State of Andhra Pradesh, represented by District Collector, East Godavari, Kakinada.

2.Endowments Department, represented by Deputy Commissioner, P.R.College Road, Kakinada.

3.Sri Subrahmanyeswara Swamy Vari Devasthanam, represented by it’s Executive Officer, Indrapalem, Kakinada Rural.

... Defendants.

I.A.No.2335 of 2016

Between:

Vallu Ramana ... Petitioner/Appellant/Plaintiff.

AND

1.State of Andhra Pradesh, represented by District Collector, East Godavari, Kakinada.

2.Endowments Department, represented by Deputy Commissioner, P.R.College Road, Kakinada.

3.Sri Subrahmanyeswara Swamy Vari Devasthanam, represented by it’s Executive Officer, Indrapalem, Kakinada Rural.

... Respondents / Defendants.

I.A.No.2338 of 2016

Between:

Vallu Ramana ... Petitioner/Appellant/Plaintiff.

AND

1.State of Andhra Pradesh, represented by District Collector, East Godavari, Kakinada.

2.Endowments Department, represented by Deputy Commissioner, P.R.College Road, Kakinada.

3.Sri Subrahmanyeswara Swamy Vari Devasthanam, represented by it’s Executive Officer, Indrapalem, Kakinada Rural.

... Respondents / Defendants.

I.A.No.3151 of 2012

Between:

Vallu Ramana ... Petitioner/Appellant/Plaintiff.

AND

1.State of Andhra Pradesh, represented by District Collector, East Godavari, Kakinada.

2.Endowments Department, represented by Deputy Commissioner, P.R.College Road, Kakinada.

3.Sri Subrahmanyeswara Swamy Vari Devasthanam, represented by its Executive Officer, Indrapalem, Kakinada Rural.

... Respondents / Defendants.

The appeal and petitions coming on 1.9.2017 for final hearing before me in the presence of Sri M.V.J.Ramagopal, Advocate for Appellant and Sri G.V.Krishna Prakash, Advocate for Respondents 2 and 3 and the 1st respondent having remained ex parte, and the matter having stood over for consideration till this day, this Court made the following:

O R D E R

This appeal is filed against the decree and Judgment dated 19.10.2012 passed by the I Additional Senior Civil Judge, Kakinada in O.S.No.17/2011.

2. For the sake of brevity and convenience hereafter, The Code of Civil

Procedure 1908, The Indian Evidence Act 1872 and The Andhra Pradesh

Charitable and Hindu Religious Institutions and Endowments Act, 1987 herein after are referred as C.P.C, I.E.Act and E.Act.

3. The suit in O.S.No.17/2011 is filed by the plaintiff for declaration of title of the plaintiff over the plaint schedule property and for consequential permanent injunction restraining the defendants and their men from interfering with the possession and enjoyment of the plaintiff in respect of the plaint schedule property.

4. The brief and relevant facts pleaded in the plaint presented under

Section 26 and Order VII Rule 1 of C.P.C are as follows:

a) The plaintiff is the absolute owner of the plaint schedule property, having succeeded the same from his father. Originally, the plaint schedule property in extent of 450 square yards belongs to Rayudu Venkatasamy and others. They sold the said property to Guthula Satyanarayana under registered sale deed dt.24.04.1979. The said Sayanarayana sold the said extent of 450 square yards to the plaintiff’s father and mother under registered sale deed dt.28.12.1981. Out of the said property the parents of the plaintiff sold 127 sq. yards of site to Gudala Satyanarayana but remaining extent of 233 sq. yards is in possession and enjoyment of the plaintiff.

Previously one Rayudu Ramana and Koppisetti Ravi tried to take forcible possession of the property of plaintiff’s parents and at that time the plaintiff and his father filed a suit in O.S.877/1996 against Rayudu Ramana and

Koppisetti Ravi and the said suit was decreed in their favour on 31.12.2002.

The appeal preferred by Rayudu Ramana in A.S.67/2003 on the file of III Addl.

District Court, Kakinada was also dismissed. Thus the title of the plaintiff was upheld.

b) The plaintiff constructed a house in the plaint schedule property and has been paying property tax to the Panchayat. There is property of the 3rd defendant to the South and North of plaint schedule property. The defendants 1 to 3 without any manner of right are trying to encroach upon the property of the plaintiff. The 3rd defendant came to the suit schedule property on 12.01.2011 and tried to take measurements of the property stating that the property is part of property of the 3rd defendant. The 3rd defendant has no manner of right or title in the plaint schedule property. The defendants 4 started proclamation that they will take forcible possession of the plaint schedule property by 20.01.2011. Since there is no time for issuing notice U/s 80 C.P.C. the plaintiff filed the suit without issuing notice. Hence, it is necessary to declare the title of the plaintiff over the plaint schedule property and to grant permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff over the plaint schedule property.

5. The defendants 2 and 3 filed common written statement, 1st defendant adopted the written statement of defendants 2 and 3. The brief averments of written statement are as follows:

a) The material allegation in the plaint are all false and denied by the defendants. The plaintiff or his parents have no manner of title over the plaint schedule property. The plaint schedule and the boundaries mentioned therein are not correct. The 1st defendant is no way concerned with the plaint schedule property.

b) The defendants are the absolute owners of the plaint schedule property and other property and the said property was also shown in the property register maintained by the 3rd defendant under section 38 of Act 17 of 1966.

c) One Rayudu Venkta Ramana encroached into the site of the 3rd defendant situated in old S.Nos. 26/2-1 and 26/2-8, which subsequently changed as 28/2 and at present R.S.No.13/16 which is an extent of Ac.0-89 cents as per revenue records and Ac.0-80 cents as per the statutory registers under section 38 of Act 17/66 and sec. 43 of Act 30/87 which is a dry land situated in Indrapalem village, Kakinada. Originally from 1946 one Rayudu

Suranna cultivated the land and after him, his son Rayudu Venkata Ramana continued in the land as tenant by paying Rs.1,500/- per year from 1990 and after expiry of the lease, the 3rd defendant filed O.A.222 of 1996 of the file of

Deputy Commissioner, Endowments Department, Kakinada U/s 83 of E.Act and after elaborate enquiry the Deputy Commissioner of Endowments passed orders of eviction in order No.109/1999 dt.14.09.1999 against the said 5

Rayudu Venkata Ramana filed W.P. No.25808 of 1999 and the said Writ petition was disposed off on 15.06.2007 with a direction to the said Rayudu

Venkata Ramana to approach the commissioner of Endowments, Hyderabad

U/s 92 of E.Act. On enquiries it is revealed that no appeal or revisions filed

U/s 92 of E.Act by the said Rayudu Venkata Ramana and the orders in

O.A.222/96 became final. When the 3rd defendant was about to take possession of the plaint schedule property in O.A.222/96 U/s 84(1) of E.Act, the said R.Venkata Ramana filed Revision petition No.1 of 2010 before the

Commissioner, Endowments Department, Hyderabad U/s 92 of E.Act with delay condonation application, but the said Revision petition was dismissed on 28.04.2010. The alleged title deeds dt. 24.041979 or 28.12.1981 or the alleged sale said to be made in favour of Gudala Satyanarayana are not valid under law and they are not binding on the defendants 2 and 3. The plaintiff has no right over the plaint schedule property. The civil court has no jurisdiction to entertain the suit by virtue of Sec.151 of E.Act. The 1st defendant is not a necessary party to the suit. The 3rd defendant is taking proceedings under sections 83 and 84 of E.Act against the plaintiff and others to remove the encroachment through due process of law. Hence, the suit may be dismissed with costs.

6. Basing on the above pleadings, the following issues are settled for trial by the trial Court:

1) Whether the plaintiff got title and possession over the petition schedule property

2) Whether the plaint schedule property is the absolute property of the 3 rd defendant and 3 rd defendant initiated action against the predecessors of the plaintiff for their eviction under endowment

Act?

3) Whether the Civil court has no jurisdiction to entertain the suit?

4) Whether the 1 st defendant is a necessary party to the suit?

5) Whether the plaintiff is entitled for declaration, title and for consequential permanent injunction?

6) To what relief?

7. During the course of trial, in the trial Court, the plaintiff himself examined as P.W.1 and got marked Exs.A-1 to A-7. On behalf of the defendants, D.W.1 is examined and Exs.B-1 to B-4 were marked.

8. After conducting due trial, the trial Court dismissed the suit with costs.

9. As against the said decree and judgment in O.S.No.17/2011, the plaintiff filed the present appeal and presented memorandum of appeal under

Order 41 Rule 1 C.P.C. The brief and relevant grounds of appeal are as follows:

a) The decree and judgment of the trial court are contrary to law and weight of evidence and probabilities of the case.

b) The trial court ought to have seen that Ex.B.1 is prepared on 22.12.09 whereas documents of the plaintiff are of the year 1979 and 1981.

c) The trial court failed to see that if a document is brought into existence in 2009 will it bind the parties.

d) The trial court failed to see that the boundaries are not disputed.

D.W.1 also admitted the possession of the plaintiff.

e) The trial court failed to see that the judgment in O.S.No.877/96 operate as res judicata.

f) The trial court also failed to see that in the suit O.S.877/96 the

Chairman of the 3rd defendant Temple was examined and he specifically deposed about the property and the court held that the 3rd defendant is not owner of the property.

g) The trial court ought to have been that the title of the plaintiff is already decided in the presence of the 3rd defendant.

h) The trial court held that the property of the plaintiff is covered by

S.No.13/19 in para-10 of the judgment.

i) The trial court ought not to have held that the survey number is not mentioned and as such the plaint schedule property cannot be treated as property of the plaintiff and that it is absolutely incorrect.

j) The trial court failed to see that the Chairman of the Devasthanam gave evidence in O.S.877/96 and their evidence is not believed.

k) The trial court failed to see that the proceedings in O.A. are subsequent to the filing of the suit O.S.877/96. In fact the plaintiff herein was not a party to the proceedings in Ex.B.4.

l) The trial failed to see that Ex.B.1 which is prepared in 2009 is not binding on the parties.

m) The trial court ought to have seen that even though in O.A. filed 1996 no entry was made till 2009. This shows that the 3rd defendant herein colluded with Rayudu Venkataramana and created documents.

n) The trial court ought to have held that the plaintiff is the owner of the property and the plaintiff is in possession of the property.

o) For these and such other grounds that may be urged at the time of hearing of the arguments the appellant pray to allow this appeal with costs throughout and decree the suit with costs throughout.

10. 1) The appellant/plaintiff also filed I.A.2338/2016 is filed Under Order 41 R.27 and Sec.151 of C.P.C to receive the petition listed documents as

additional evidence in the appeal.

2) The appellant/plaintiff also filed I.A.3151/2012 Under Order 39 Rules 1 and 2 & Section 151 of C.P.C to grant temporary injunction restraining the respondents from in any way interfering with petitioner peaceful possession and enjoyment of the petition schedule property pending disposal of the appeal.

3) The appellant/plaintiff also filed I.A.2335/2016 to appoint a commissioner to measure the properties as per the adangals and as per the

File Measurement Book and as per the documents of the plaintiff and to submit a report to this court.

4) The brief and relevant facts deposed in the affidavits filed along with all the above applications are as follows:

a) The vendor of the petitioner purchased the property in the year 1979 under registered sale deed dt.24.04.1979. Subsequently the petitioner’s father purchased the property along with his mother Laxmi on 28.12.1981. Since then they are in possession and enjoyment of the property. Previously they filed a suit against Rayudu Ramana and obtained a decree against him. The said Rayudu Ramana colluded with the Endowments Department and got created documents as if the property belongs to the Endowments Department.

During the pendency of the suit as per order in I.A.31/2011 the interim injunction granted is made absolute of 23.9.2011. The respondent did not prepare any appeal against the same. D.W.1 admitted the possession of petition schedule property. The petitioner and his vendors are in possession of the property since last 50 years. If the petitioner is dispossessed from the property he will be put to great hardship. The petitioner constructed a house long time back in the year 1982 and in possession and enjoyment of the said house property.

b) Subsequent to filing of the appeal, the petitioner came to know that the land of Devasthanam is in S.Nos.13/16, 13/17 whereas his site is in

S.No.13/19. The petitioner obtained certified copies of adangals. Subsequent to the filing of the appeal the petitioner came to know that the Devastanam has no right in the property purchased by him covered by S.No.13/19. The petitioner obtained certified copy of the Field Measurement Book relating to

S.No.13. If the properties are measured as per the Field Measurement Book and also as per the certified copy of the adangals it will be clear that the property claimed by the petitioner does not belong to respondents in the appeal. In order to establish that the petitioner’s property is not in the property of the temple i.e. respondents it is necessary to measure the property as per the Field Measurement Book and adangals. The certified copy of the Field Measurement Book and adangals relating to S.No.13/19, 13/16 and 13/17 are to be received as additional evidence and he could not file them earlier into court as he is not obtained those documents previously. There are 9 no willful negligence or laches on the part of petitioner in not filing the documents earlier into court and hence all the applications in I.A.Nos.

2338/2016, 3151/2012 and 2335/2016 may be allowed as prayed for.

11. The 1st respondent remained exparte.

12. The respondent Nos.2 to 3 filed common counter in all the three applications. The brief and relevant facts pleaded in it are as follows:

a) The petition filed by the petitioner is neither just nor maintainable under law. The allegations in the affidavits are absolutely false and they are specifically denied.

b) Under Sec.143 of E.Act and as per Rule 26 of A.P. endowments

Tribunal Rules read with Sec.151 of E.Act the civil court has no jurisdiction to entertain the present appeal and since civil courts have no jurisdiction to decides the disputes involved in this case, on that count itself the main appeal itself is liable to be dismissed in limini. The petitioner has no prima facie case, the balance of convenience is only in favour of respondents 2 and 3. The petitioner has not come before the court with clean hands.

c) The 3rd respondent alone is the absolute owner and title holder of the schedule property. The mandatory ingredients under Order 41 Rule 27 of

C.P.C are not pleaded, proved or established as the alleged documents are the permanent records available with the Government to the knowledge of one and all and it is not explained why the alleged documents are not filed in the trial Court and why the commissioner petition was also not filed.

d) It is established principles of law to gather evidence no commissioner should be avoided more particularly to cover up lacunas and gaps in the trial court that too in appellate court on that count itself the Commissioner petition is liable to be dismissed in limini.

e) The boundaries will prevail only the measurements etc., more over in the plaint schedule or in the entire plaint the alleged S.No.13/19 or any other survey number is not whispered or mentioned and it is not even pleaded or 10 deposed in any evidence in the trial Court that the Survey Numbers are different etc.. For the first time to confuse the dispute involved in the case and to set up a new and distinct case, the alleged difference of Survey

Numbers etc., are pleaded and the documents sought to be introduced which is not permissible under law.

f) So under any stretch of imagination no additional documents should be received and no commissioner need be appointed to gather evidence etc., at the appellate stage.

g) The counter is filed without prejudice to the rights and contentions of the respondents 2 and 3 and hence all the three applications in

I.A.Nos.2338/2016, 3151/2012 and 2335/2016 may be dismissed with costs.

13. Suomoto the petitions in I.A.Nos.2338/2016, 3151/2012 & 2335/2016 are clubbed with appeal in A.S.205/2012 for conducting enquiry in the appeal jointly as per the docket order dt.01.08.2017.

14. During the course of enquiry in the appeal, no witnesses are examined and no documents are marked.

15. For the sake of brevity and convenience here in after the parties and evidence will be referred as referred in the judgment in O.S.17/2011 on the file of I Addl. Senior Civil Judge, Kakinada.

16. a) The learned counsel for the appellant/plaintiff submits the brief and relevant facts pleaded in the plaint and written statements of defendant Nos.1 to 3 and also the brief and relevant grounds of appeal and also the brief and relevant facts deposed in the affidavits filed along with petitions in

I.As.2335/2016, 2338/2016 and I.A.3151/2012 and counters of respondents 2 and 3 referred supra.

b) The learned counsel for plaintiff submits that the parents of the plaintiff purchased 450 sq. yards of site in S.No.13/19 from Guttula

Satyanarayana under Ex.A-2 registered sale deed, but whereas 3rd defendant 11 claims that suit property is not situated in S.No.13/19, but it is situated in

S.No.13/16 to an extent of 89 cents; S.No.13/17 to an extent of 17 cents and

S.No.13/18 to an extent of 15 cents and F.M.B of S.No.13 is also filed.

c) The learned counsel for plaintiff submits that suit in O.S.877/1996 is in between P.W.1 Vallu Ramana and Rayudu Ramana as evidenced by Exs.A-6 and A-7, and in the light of the same, the main dispute in this suit is whether the suit property is situated in S.No.13/19 or in S.Nos.13/16 and 13/17.

d) The learned counsel for plaintiff submits that Ex.B-1 is Sec.43 property register and it is prepared subsequent to date of Ex.A-2 sale deed dt.28.12.1981 and as per Ex.B-1 land is situated in S.No.28/1 which has become S.Nos.13/16 and 13/17.

e) The learned counsel for plaintiff submits that the trial Court wrongly held that the plaintiff did not raise contention that the suit land is not covered by S.Nos.13/16 and 13/17 and the plaintiff did not deny in his evidence that the suit land is not covered by 13/16 and 13/17 and no suggestion was also given by the plaintiff’s counsel to D.W.1 that suit land is not covered by 13/16 and 1/17 relating to old S.No.28/2.

f) The learned counsel for plaintiff submits that as trial Court held that suit land is covered by S.No.13/16 as per revenue record and S.No.13/17 as per endowment record and the 3rd defendant is claiming that suit schedule property belongs to the temple basing on Ex.B-1 register and as D.No. is given in Exs.A-1 and A-2 and as such S.No. is not mentioned and in Register No.38 also there is no mention of property and as Exs.A-1 and A-2 are of 30 years old and as such the question of proving the said documents does not arise and as the plaintiff is not impleaded in O.A. proceedings and vendor died and another vendor filed suit in O.S.877/1996 as evidenced by Exs.A-2 and A-6 and third party cannot question the said judgment in O.S.877/1996, and as the plaintiff, in order to prove that he is in possession of plaint schedule property for the last 50 years, and more particularly in order to resolve the dispute between the parties as the plaintiff is claiming that suit schedule 12 property is situated in S.No.13/19 while the 3rd defendant is claiming that the same is situated in S.Nos.13/16 and 13/17, the appointment of commissioner in order to conduct survey as prayed in I.A.2335/2016 is absolutely necessary the petitions in I.As.2335/2016 and 2338/2016 may be allowed.

g) The learned counsel for plaintiff submits that as the plaint schedule property is of plaintiff and it is private property and does not belong to 3rd defendant the trial Court or civil Court has got jurisdiction to decide the dispute in the suit.

h) The learned counsel for plaintiff submits that as evidenced by Exs.A2 and A-6 evidence is given by the trustee and chairman of 3rd defendant in it, though the defendants are not parties in it, the same are binding on defendant

Nos.1 to 3.

i) The learned counsel for plaintiff submits that though the defendants in this suit are not parties to any of the proceedings covered by Exs.A-6 and

A-7, but since in Ex.A-7 in Para-12 it is observed that the defendant who did not choose to file alleged survey report to establish that 1st plaintiff occupied an extent of 3½ cents in S.No.13/16 and in Para-14 it is observed that it is the duty of the defendant in that suit to produce original of Ex.B-1 in that suit and

Ex.B-1 is certified copy of statement given by the plaintiff and recorded by

D.W.4 and D.W.1 in that suit is V.V.Suryanarayana Rao and held that the defendant failed to prove the contents of Ex.B-1, the plaintiff is entitled for the reliefs prayed in the petitions.

j) The learned counsel for plaintiff submits that the trial Court held that the property covered by the plaint schedule is covered by S.No.13/19 in

Paragraph-12 of the judgment as follows: “Therefore, it is obvious that the suit schedule in this suit as well as earlier suit in O.S.877/1996 is the same.

The observation in Ex.A-6 judgment shows that the suit schedule property is in an extent of 100 sq. yards in O.S.877/1996 and the same is covered by

S.No.13/19 within the boundaries: East – Indrapalem channel bund; South –

Land of Subrahmanyeswaraswamy Vari Devasthanam; West – Reaming land 13 of plaintif; North – Land of Subrahmanyeswaraswamy Vari Devasthanam. The previous suit was filed with regard to 100 sq. yards and the present suit is filed with regard to 323 sq. yards covered by S.No.13/19 and door No. is mentioned in the plaint schedule but survey No. is not mentioned but the boundaries have not been changed.

k) The learned counsel for plaintiff submits that as Exs.A-1 and A-2 sale deeds are upheld in the previous suit in O.S.877/1996 covered by Ex.A-6 and in A.S.67/2003 covered by Ex.A-7 and as Ex.A-1 is 30 years old document and there is a presumption about execution and genunity of document and also contents in it, even in the absence of any oral evidence by examining persons connected to the transaction or document and the attestors need not be examined to prove Exs.A-1 and A-2, the 3rd defendant being third party to the same cannot question the said sale deeds.

l) The learned counsel for plaintiff submits that the trial Court purposefully held that the plaint schedule property is covered by S.Nos.13/16 and 13/17 and this is contrary to the findings in Para-12 of the judgment and that the trial Court at Page-11 of the judgment stated that since no survey number was mentioned a doubt has arisen and that whether the schedule land is also covered by S.No.13/16 or 13/17.

m) The learned counsel for the plaintiff submits that the trial Court said that the plaintiff did not raise any contention that the suit land is not in

S.No.13/16 or 13/17 and that the trial Court ought to have seen that P.W.1 there is no suggestion that the land is covered by S.No.13/16 and 13/17 and in fact D.W.1 also did not state in the entire chief affidavit that the plaint schedule land is covered by S.No.13/16 and 13/17 and as such comment of the trial Court that no cross examination is done in that respect is not correct.

n) The learned counsel for plaintiff submits that how the trial Court came to the conclusion with the plaint schedule property is covered by

S.No.13/16 and 13/17 is not known.

o) The learned counsel for plaintiff submits that the trial Court wrongly held that the possession of the plaintiff is encroacher while observing at Page- 14, but the same is contrary to the finding of the trial Court in Para-12 of the judgment.

p) The learned counsel for plaintiff submits that in fact the suit in

O.S.877/1996 was filed against Venkataramana, then how could it be said that

Venkataramana inducted the plaintiff into possession of the property and that the trial Court having accepted that there is no direct evidence has come to a wrong conclusion that the plaintiff is an encroacher and the same is by assumptions and presumptions of the trial Court which is not permissible under law.

q) The learned counsel for plaintiff submits that the application in

I.A.2335/2016 is filed for appointment of advocate commissioner as the encroachment cannot be fixed on oral evidence and a commissioner should be appointed to note whether there is any encroachment or not.

r) The learned counsel for plaintiff submits that documents by way of adangal and F.M.B filed along with the petition in I.A.2338/2016 are necessary to prove that the site is not covered by S.Nos.13/16 or 13/17 and they are all public documents and they can be received as additional evidence.

s) The learned counsel for plaintiff submits that the property claimed by 1st appellant is not the endowments property as it is covered by S.No.13/19.

t) The learned counsel for plaintiff submits that if the property belongs to the endowments department the preliminary issue has to be decided and that in fact in the case of plaintiff is that the property being claimed by the plaintiff is a private property by S.No.13/19 in which the 3rd defendant admittedly has no right and that the 3rd defendant not claimed any right in

S.No.13/19 and S.No.13/19 is not an endowments property.

u) The learned counsel for plaintiff submits that a civil suit is maintainable with regard to the property which do not belong to endowment department.

v) The learned counsel for plaintiff submits that in the facts and circumstances in order to decide the dispute about whether the Court has got jurisdiction or not and also whether the suit schedule property is that of the plaintiff and it is private property or endowments property, the appointment of commissioner and receiving additional evidence as prayed in I.As.2335/2016 and 2338/2016 is absolutely necessary and further in the interests of justice during the pendency of appeal temporary injunction may be granted to the petitioner as prayed in I.A.3151/2012 and hence, they may be allowed as prayed for.

w) The learned counsel for plaintiff submits that if for any reason the applications in I.As.3151/2012, 2335/2016 and 2338/2016 are dismissed also, since there is ample evidence on record to prove that the plaintiff is entitled for the reliefs prayed in the plaint, but the trial Court without considering evidence on record wrongly dismissed the suit, the appeal may be allowed and the judgment and decree in O.S.17/2011 on the file of I Addl. Senior Civil

Judge’s Court, Kakinada may be set aside and the suit may be decreed with

costs.

17. a) The learned counsel for the respondents 2 & 3 /defendants 2 & 3 submits the brief and relevant facts pleaded in the plaint and written statements of defendant Nos.1 to 3 and also the brief and relevant grounds of appeal and also the brief and relevant facts deposed in the affidavits filed along with petitions in I.As.2335/2016, 2338/2016 and I.A.3151/2012 and pleaded in counters of respondents 2 and 3 in those petitions referred supra.

b) The learned counsel for defendants 2 and 3 submits that no documents are filed to show 127 sq. yards is sold out of 450 sq. yards but as per Ex.A-6, 150 sq. yards are sold.

c) The learned counsel for defendants 2 and 3 submits that according to plaintiff the property of 3rd defendant is situated on the north and south of properties covered by Exs.A-1 and A-2.

d) The learned counsel for defendants 2 and 3 submits that flow of title is not explained by the plaintiff in the plaint and there is no ancestral title established by the plaintiff prior to 1979.

e) The learned counsel for defendants 2 and 3 submits that as evidenced by Exs.A-6 and A-7, the defendants 1 to 3 are not parties to the suit in O.S.877/1996 and A.S.67/2003 and as such they are not binding on the defendants.

f) The learned counsel for defendants 2 and 3 submits that the plaintiff is claiming that the plaint schedule property is situated in S.No.13/19.

g) The learned counsel for defendants 2 and 3 submits that no notice is given to defendants 2 and 3 prior to filing of the suit, but notice is given to 1st defendant only prior to filing of the suit.

h) The learned counsel for defendants 2 and 3 submits that Ex.A-3 shows that the surveyor had found the property of 3rd defendant.

i) The learned counsel for defendants 2 and 3 submits that the plaintiff did not file decrees of judgments covered by Exs.A-6 and A-7 without valid reason.

j) The learned counsel for defendants 2 and 3 submits that Ex.A-6 clearly shows that the suit is filed for 100 sq. yards not for entire property or for the property in this suit and the plaintiff has not explained about how they have mentioned S.No.13/19.

k) The learned counsel for defendants 2 and 3 submits that proceedings covered by Ex.B-4 in this suit were not brought to the notice of the Courts which decided the suit in O.S.877/1996 and A.S.67/2003 covered by Exs.A-6 and A-7.

l) The learned counsel for defendants 2 and 3 submits that 1st defendant in the suit in O.S.877/1996 covered by Ex.A-6 and the respondent in Ex.B-4 is the brother’s son of Rayudu Venkata Swamy.

m) The learned counsel for defendants 2 and 3 submits that the plaintiff has to implead proper and necessary parties in the suit in view of the 17 pleadings in the written statement in O.S.877/1996 but the plaintiff did not do so in that suit.

n) The learned counsel for defendants 2 and 3 submits that survey No.

is not given in the plaint schedule and also document clearly shows that the property belongs to the temple.

o) The learned counsel for defendants 2 and 3 submits that in view of

Sec.29 of E.Act proper person who represents the temple is the Executive

Officer but in the suit in O.S.877/1996 the Executive Officer is not examined as witness but the then trustee is examined as witness.

p) The learned counsel for defendants 2 and 3 submits that as per the pleadings in the plaint in this suit or in suit in O.S.877/1996 covered by Ex.A6 there is no pleading that the properties of plaintiff and defendant in that suit in

O.S.877/1996 and the defendant in this suit are situated in separate survey

numbers, but the plaintiff is claiming property in this suit wrongly without giving any proper explanation about the discrepancies if any in the survey numbers of the plaint schedule property.

q) The learned counsel for defendants 2 and 3 submits that the plaintiff is claiming that the suit schedule property is ancestral property but not filed any revenue record including adangals and not examined anybody to prove that the plaint schedule property is the ancestral property and the plaintiff also not proved the title of the vendors of plaintiff’s parents who are claimed as purchasers of the property.

r) The learned counsel for defendants 2 and 3 submits that under

Section 143 of E.Act and as per Rule 26 of E.Rules read with Section 151 of

Endowments Act 30/87 the civil Court has no jurisdiction to entertain the present appeal and since civil Courts have no jurisdiction to decide the disputes involved in this case, on that count itself the main appeal itself is liable to be dismissed in limini.

s) The learned counsel for defendants 2 and 3 submits that in the affidavit filed along with I.A.2338/2016 there is no mention about the 18 mandatory ingredients under Order 41 Rule 27 of C.P.C and as such they are not pleaded, proved or established and further as the alleged documents are the permanent records available with the Government to the knowledge of one and all and it is not explained why the alleged documents are not filed in the trial court and why the commissioner petition was also not filed, the appellant is not entitled to allow those petitions.

t) The learned counsel for defendants 2 and 3 submits that the application filed for appointment of commissioner is filed only to cover up the lacunas and gaps observed by the trial Court and at this stage in the appellate court the same is not maintainable.

u) The learned counsel for defendants 2 and 3 submits that the plaintiff in this suit is aware by the date of filing of the suit in O.S.877/1996 covered by Ex.A-6 about survey numbers of his land but he did not furnish the survey numbers and given only D.No.

v) The learned counsel for defendants 2 and 3 submits that the documents i.e. adangals and F.M.B filed along with petition in I.A.2338/2016 are not at all helpful for adjudicating issues involved in this appeal and they do not give any assistance to give proper judgment.

w) The learned counsel for defendants 2 and 3 submits that the plaintiff has not filed any document supporting to prove that the plaint schedule property is the ancestral property of the plaintiff.

x) The learned counsel for defendants 2 and 3 submits that as the civil

Court has not jurisdiction to entertain the present appeal in order to decide the disputes involved in this case as the suit property is endowment property the appeal is not maintainable and as such the appeal has to be returned to present in proper Court and further the documents sought to be received as

additional evidence at this belated stage are not required to decide the dispute

in this appeal.

y) The learned counsel for defendants 2 and 3 submits that

I.A.No.2338/2016 is filed after creating the documents and the provision of 19

Order 41 Rule 27 C.P.C. was not at all satisfied and that the reasons given for producing the additional evidence not satisfactory and that there are no grounds to receive the documents and hence, the petition may be dismissed with costs.

z) The learned counsel for defendants 2 and 3 submits that as the appeal is not maintainable in view of Sec.29 of E.Act, the appeal may be dismissed with costs and as the petitioner is not entitled for the reliefs prayed in I.As.2335/2016, 2338/2016 and I.A.3151/2012 and hence, the said petitions also may be dismissed with costs.

18. Basing on the pleadings, evidence and contentions of the learned counsel for all the parties, the following points emerge for consideration:

1) Whether the plaintiff got title and possession over the petition schedule property

2) Whether the plaint schedule property is the absolute property of the 3 rd defendant and 3 rd defendant initiated action against the predecessors of the plaintiff for their eviction under endowment Act?

3) Whether the Civil court has no jurisdiction to entertain the suit?

4) Whether the 1 st defendant is a necessary party to the suit?

5) Whether the plaintiff is entitled for declaration, title and for consequential permanent injunction?

6) Whether the petitioner is entitled for granting temporary injunction as prayed for in I.A.3151/2012?

7) Whether the petitioner is entitled for appointment of advocate commissioner as prayed for in I.A.2335/2016?

8) Whether the petitioner is entitled for permitting to place additional evidence as prayed for in I.A.2338/2016?

9) Whether the judgment and decree in O.S.17/2011 require varying or modification or confirmation?

10) To what relief?

19. POINTS 6 TO 8: These points 6 to 8 are related very closely i.e. for appointment of advocate commissioner as prayed for in I.A.2335/2016 and for permitting the appellant/plaintiff to place additional evidence in respect of documents as prayed for in I.A.2338/2016 and to grant temporary injunction 20 as prayed in I.A.3151/2012. These points 6 to 8 are taken up at first and basing on the answers to these points, the other points 1 to 5, 9 and 10 will be taken up.

20. a) The plaintiff filed the suit for declaration of title of the plaintiff over the plaint schedule property and for consequential permanent injunction restraining the defendants and their men from interfering with the possession and enjoyment of the plaintiff in respect of the plaint schedule property.

b) The plaintiff is claiming that the parents of plaintiff purchased the 450 sq. yards from one Satyanarayana under Ex.A-2 sale deed dt.28.12.1981 while the vendor of the plaintiff’s parents purchased the said property under

Ex.A-1 from his vendors Rayudu Venkataswamy and others under Ex.A-1 sale deed dt.24.4.1979. The plaintiff is also claiming that in the previous suit filed against Rayudu Ramana and Koppisetti Ravi in O.S.877/1996, the decree is passed in favour of plaintiff on 31.12.2002 and appeal preferred by Rayudu

Ramana in A.S.67/2003 on the file of III Addl. District Court, Kakinada was also dismissed and thus the title of the plaintiff was upheld. The plaintiff is claiming that he constructed house in the plaint schedule property and paying property taxes to the panchayat and while so there is property of the 3rd defendant to the South and North of plaint schedule property and that the defendants 1 to 3 without any manner of right are trying to encroach upon the property of the plaintiff. Hence he filed the suit after giving notice.

c) The defendants 2 and 3 filed written statement claiming that the plaint schedule and boundaries are not correct and that the 1st defendant is no way concerned with the plaint schedule property and that the defendants are the absolute owners of the plaint schedule property and other property and the said property was also shown in the property register maintained by the 3rd defendant under section 38 of Act 17 of 1966. The defendants 2 and 3 are also claiming that as the suit property belongs to defendants 2 and 3 and the plaintiff has no title and right over the plaint schedule property the civil 21

Court has no jurisdiction to entertain the suit by virtue of Sec.151 of E.Act and that the 1st defendant is not a necessary party to the suit and that the 3rd defendant is taking proceedings under sections 83 and 84 of E.Act against the plaintiff and others to remove the encroachment through due process of law and hence, the suit may be dismissed with costs.

21. The plaintiff to prove suit claims examined himself as P.W.1 and got marked Exs.A-1 to A-7, which are Regd. Sale Deed dt.24.4.1979 in favour of

Guttula Satyanarayana; Regd. Sale Deed dt.28.12.1981 in favour of parents of plaintiff; office copy of legal notice dt.21.7.2010; postal acknowledgment of

Tahsildar; postal acknowledgment of Mandal Surveyor; Certified copy of judgment in O.S.877/1996 dt.13.12.2002 and Certified copy of judgment in

A.S.67/2003 dt.20.12.2004. No witnesses are examined on behalf of 1st

defendant. On behalf of defendants 2 and 3, the Executive Officer of 3rd defendant is examined as D.W.1 and got marked Exs.B-1 to B-4 which are

Sec.43 property register; certified copy of Orders in W.P.No.25808/1999 dt.15.6.2007; served copy of orders in Revision Petition No.1/2010 on the file of Commissioner, Endowments Department, Hyderabad dt.28.4.2010 and served copy of orders in O.A.222/1996 on the file of Deputy Commissioner,

Endowments Department, Kakinada dt.14.9.1999.

22. In view of the rival contentions, the crucial and important dispute in this case is whether the suit property is endowment property and belongs to defendants 2 and 3 and if so, the civil Court has no jurisdiction to entertain the suit. The learned counsel for the plaintiff and defendants 2 to 3 cited the catena of decisions in respect of issue and dispute about whether the civil

Court has jurisdiction or not to entertain this suit.

23. a) The learned counsel for defendants 2 to 3 cited the decision in between State of Andhra Pradesh, Appellant Vs. Manjeti Laxmi Kantha Rao (D) by L.Rs. and others, Respondentsreported in AIR 2000 Supreme Court 2220, in which the Hon’ble Supreme Court held at Paras 3, 6 & & as follows:

22 “3. When the suit was pending in the trial Court the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (hereinafter referred to as 'the Act') came into force from January 26, 1967 and defendants Nos. 4 to 12 filed a petition (O.A. No. 50 of 1969) under Section 77 of the Act before the third defendant in the suit and that petition ended in their favour by holding that the property had been purchased by the applicant and other members of his family in a Court auction and they had been enjoying the same for nearly 40 years and no one had questioned their enjoyment on the ground that the property was subject to any public charity of endowment. The third defendant made a declaration that the said property is not public charity or subject to any endowment. That order became final inasmuch as no appeal or suit as contemplated under the Act had been filed. In the circumstances when the order made by the Deputy Commissioner had attained finality and conclusiveness and the matter could not be challenged except in the manner provided under the Act and that course having not been adopted the High Court allowed the Letters Patent Appeals and set aside the judgment and decree passed by the trial Court as affirmed by the learned single Judge of the High Court. Hence this appeal.

6. The suit is prior to initiation of proceedings under Section 77 of the Act and, therefore, the said suit cannot be a suit as contemplated under Section 78 of the Act. The Order under Section 77 of the Act is conclusive which determined the issue that the suit property is not subject to public charity or endowment upholding the case of the defendants Nos. 4 to 12 that the property is private property and is not an endowment. Such a question could have been decided in a proceeding under Section 77(1)(d) of the Act as to whether any property is an endowment and, if so, whether it is charitable endowment or a religious endowment. A person aggrieved could file a suit under Section 78 of the Act. Since no such suit was filed the declaration made by the Deputy Commissioner under Section 77 of the Act the order made by him concluded the issue whether or not the suit property is a charitable or religious endowment. After the Act came into force the Deputy Commissioner was competent to deal with such a question. The subject matter in G.O. 1501 which was passed on July 12, 1966; the prayer in the suit in O. S. No. 11/67 and the decision under Section 77 pertains to the same question whether or not the property was an endowed property. The Deputy Commissioner considered the very question raised in the suit as to nature of the suit property and held that it is private property and having concluded as public charity or endowment that conclusion became final.

7. In the present case, there is no allegation that the Deputy Commissioner had acted contrary to the provisions of the Act or not having followed the fundamental principles of judicial procedure. On the other hand, the Deputy Commissioner having followed the due procedure made the order and that order could have been challenged as provided under Section 78 of the Act by way of a suit or by an appeal. When neither of these courses was adopted, the order made by the authority in its special jurisdiction must be held to be conclusive and final.”

b) The learned counsel for defendants 2 to 3 cited the decision in between Chinnareddivari Ramachandra Reddy Vs. Archakam Sreenivasa Bhattar reported in 2006 (1) ALT 641, in which the Hon’ble High Court held at Paras-7 to 11 as follows:

“7. Thus, the question that arises for consideration in this revision is as to whether this Court can go into the maintainability of the suit, at this stage, in exercise of its powers under Article 227 of the Constitution of India without examining the averments of the plaint, written statement etc.?

8. It is altogether different, when such question of jurisdiction was raised

before the trial Court and the trial Court decided as to that aspect. Probably, under

those circumstances, this Court in exercise of the revisional powers under Article 227 of the Constitution is justified in going into the aspect of jurisdiction - whether in the teeth of express bar under Section 151 of the Act read with Section 9 of CPC 23 as amended in 1976, a suit of this nature can be entertained or not. I am of the opinion that this Court is handicapped to go into this aspect, since this revision is filed, as stated above, under Article 227 of the Constitution directly against an ad interim injunction granted by the trial Court. No written statement is filed by the petitioner-defendants in the above suit. Whether the civil Court has got jurisdiction or not, it all depends upon the pleadings on either side and also the object of the Act and unless and until this is examined, no correct decision can be reached.

9. A reading of the plaint, a copy of which is made available on record, would show that it is the case of the plaintiff (respondent herein) that the defendants (petitioners herein) have nothing to do with the plaint schedule Temple, except they have a right to offer prayers to the Lord and he is also bound to co-operate with the wishes of the devotees to perform his part of Archakatvam. Neither the defendants nor villagers have anything to say with the management of the affairs of the Temple, but they can only complain to the endowment authorities, if there are any lapses. But, neither the defendants nor any third person, however big he may be, has any locus standi to interfere with either the management of the temple lands or the affairs of the temple, except through proper channel i.e., the Assistant Commissioner of Endowments or the Officials of the said Department. It is only the Endowments Department, which is competent to remove/ appoint the Archaka of any Temple, only after necessary enquiry preceded by notice of such action to the concerned Archaka. As far as he is concerned, there is absolutely, no displeasure from the Endowments Department, since he has been performing his duties to the satisfaction of the Department and the devotees of the Temple.

10. In view of these assertions made in the plaint and the averments made in the affidavit filed in support of C.M.P. No. 12951 of 2004 filed in this revision, I am of the view that even the question of bar of jurisdiction of the civil Court has to be decided primarily by the trial Court and not in a revision under Article 227 of the Constitution of India, where the pleading are not compete nor the impugned order was passed by the trial Court after hearing both the parties as to the maintainability of the suit. Hence, the decisions relied upon by the learned Counsel on either side need not be gone into.

11. In the facts and circumstances of the case, this Court is of the opinion that the matter needs to be remanded to the trial Court for deciding the issue of jurisdiction of civil Court in entertaining the suit as a preliminary issue. The petitioner-defendants are at liberty to file their written statement within one month from the date of receipt of a copy of this order and within one month thereafter, the trial Court shall decide the issue of maintainability of the suit as a preliminary issue. However, this will not preclude the petitioner-defendants from filing a petition seeking vacation of the ad interim injunction order granted under Order XXXIX Rules 1 and 2 of CPC in LA. No. 829 of 2004 on 15-7-2004. The I.A. seeking vacation of ad interim injunction, if any, filed and the preliminary issue as to maintainability of the suit shall be taken up and disposed of together. Till such time, the impugned order passed by the trial Court shall continue and the interim order passed by this Court on 6-8-2004 in CMP No. 12951 of 2004 shall stand vacated. It is made clear that the Court below shall decide the matter uninfluenced by the observations, if any, made in this order.”

c) The learned counsel for defendants 2 to 3 cited the decision in between Srisaila Kshetra All India Arya Vysya Anna Satra Sangam, Srisailam and others Vs. P.Satyanarayana and others reported in 2006 (5) ALD 641, in which the Hon’ble High Court held at Para-7 as follows:

“7. If there exists any dispute as to the character of such institutions, Section 87 provides for the adjudication of the disputes by the Deputy Commissioner of Endowments, having jurisdiction over the concern area. Further, Section 151 of the Act bars the jurisdiction of the Civil Courts in relation to the disputes which can be determined under the Act. In other words even where the religious institution or endowment is registered under Section 6 of the Act or not, and any dispute is raised touching upon the determination of the character of such institution, such dispute can be resolved only by instituting proceedings under Section 87 of the Act. However, the bar does not operate in relation to the other kinds of remedies in respect of the institutions which are not registered under Section 6 of the Act. If any person intends to bring any institution, which is not included in the list 24 prepared under Section 6, within the purview of the Act, the only course is to institute proceedings under Section 87. Therefore, in the limited context of the bar of jurisdiction or operation of Section 156 of the Act, the predominant criterion would be whether the institution in question is the one registered under Section 6 of the Act or whether in any proceedings under Section 87 of the Act any declaration was made, bringing it within the fold of the Act.”

d) The learned counsel for defendants 2 to 3 cited the decision in between Srisaila Hanumanthu Krishna Rao & Ors., Petitioners Vs. The Sub- Registrar, Panduru & Anr., Respondents reported in 2009 (2) L.S. 66, in which the Hon’ble High Court held as follows:

“The A.P. State Legislature amended the Registration Act, 1908 by adding section 22-A. To the extent it is relevant, for the purpose of this case, it reads as under. Section 22-A: Prohibition Registration of certain documents:- (1) The following classes of documents shall be prohibited from registration, namely:--

(a) documents relating to transfer of immovable property, the alienation or transfer of which is prohibited under any statute of the State or Central Government;

(b) documents relating to transfer of property by way of sale, agreement of sale, gift, exchange or lease in respect of immovable property owned by the State or Central Government, executed by persons other than those statutorily empowered to do so;

(c) documents relating to transfer of property by way of sale, agreement of sale, gift, exchange or lease exceeding (ten) 10 years in respect of immovable property owned by Religious and Charitable Endowments falling under the purview of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 or by Wakfs falling under the Wakfs Act, 1995 executed by persons other than those statutorily empowered to do so.

(d) Agricultural or urban lands declared as surplus under the Andhra Pradesh Land Reforms (Ceiling and Regulation) Act, 1976;

(e) Any documents or class of documents pertaining to the properties the State Government may, by notification prohibit the registration in which avowed or accrued interests of Central and State Governments, Local Bodies, Educational, Cultural, Religious and Charitable Institutions, those attached by Civil, Criminal Revenue Courts and Direct and Indirect Tax Laws and others which are likely to adversely affect these interests”. The provision extracted above imposes a bar against registration of the documents, in relation to the categories of lands, mentioned in clauses (a) to (e) of sub-section (1). The lands owned by religious institutions are covered under clause

(c). The 2nd respondent made an emphatic claim over the land and the same was acted upon by the 1st respondent. The petitioners insist that unless there is a clear determination, or adjudication in favour of the Temple, as regards the land, Section 22-A of the Act cannot be invoked.

Section 22-A of the Act brings about a typical situation. It virtually prevents and precludes the Registering Authority from admitting a document, in relation to category of lands, that fall into clauses (a) to (e) of sub-section (1). The present provision is substantially different from the one, which existed till recently, and was set aside by this Court. Under Section 22-A, which existed before the present amendment, the bar operated, in relation to the lands that are mentioned in a notification be published in a gazette. Such a requirement is done away with, under the extant provision.

Once the Registering Authority come to know, or is informed that the subject-matter of a document presented before him for registration is a land, falling into any of the categories mentioned in clauses (a) to (e) of Section 22-A(1), he has no option, except to desist from registering the document. He cannot embark upon, or undertake any enquiry, as to the validity, legality or propriety of the claims, vis-à-vis the land, or its character. For instance, if he is informed that the subject-matter of a document presented before him for registration is a land owned by the State or Central Government, he cannot undertake any enquiry into the correctness of such claim. He can do nothing more than refusing registration and leave it to the parties to seek adjudication before appropriate forum. So is the case with the lands, that fall into any other categories.

The 1st respondent received a specific claim from the Endowments Department, vis-à-vis the land, which is sought to be sold by the petitioners. Howsoever meritorious the claim of the petitioners may be, the 1st respondent cannot enquire into the same. Any such attempt would be outside the scope of his powers under the Act. The only alternative for the petitioners is, to seek adjudication as to the nature and character, or even title over the land. That can be either by filing a suit or by instituting proceedings under Section 87 of the Endowments Act. They cannot insist upon the 1st respondent to give a ruling in their favour, touching upon the character of the land, or its title.

It is true that in Mallaram Govindamma v. The District Collector (1 supra), and other judgments, it was held that a letter addressed by a Government Authority to the Sub-Registrar with a request, not to register the document cannot be acted upon, and the refusal of registration on the strength of such communication is illegal. Those judgments, however, were rendered, at a time, when Section 22-A of the Act was not there on the statute book. The introduction of that provision brings about a substantial change in the legal regime, governing the subject. The validity of that provision is not in challenge. Therefore, the ratio laid down by this Court, and other Courts, in the judgments referred to above, does not apply to the facts of this case. The writ petition is accordingly dismissed. It is, however, left open to the petitioners to work out their remedies by filing a civil suit, or by instituting the proceedings under Section 87 of the Endowments Act. There shall be no order as to costs”.

e) The learned counsel for defendants 2 to 3 cited the decision in between Sri Sanjeeva Anjaneya Swamy Vari Devasthanan, Rajahmundry rep.

by its Archaka-Cum-Trustee Vs. Thokkula Dasaradharamayya and another

reported in 2009 (2) ALT 431 (D.B), in which the Hon’ble High Court held at Paras-10 to 14 as follows:

“10. From the above provision, under Sub-section (2) of Section 84 it is clear that if any person is aggrieved by the order passed by the Deputy Commissioner under Section 83(4), he can file a suit to establish that the charitable or religious institution has no title to the land in dispute. In other words, if any person is aggrieved by the order passed under Section 83(4) alone, and that he is disputing the title of the charitable or religious institution, he can file a suit. Further, as per the second proviso to Sub-section (2) of Section 84, it is further clear that no suit as envisaged under Sub-section (2) of Section 84 shall be instituted by a person, who is let into the possession of the land, building or space or who is a lessee, licensee or mortgagee of the institution or endowment.

11. Therefore, as per the second proviso to Sub-section (2) of Section 84 of the Act, it is unambiguous that a person who is permitted to be in possession of the land of the religious institution or endowment by way of lease, licence or mortgage, is barred from instituting a civil suit.

12. Further, Section 151 of the Act contemplates that no suit or other legal proceedings in respect of administration or management of an institution or endowment or any other matters of dispute for determination or deciding for which provision is made in the Act shall be filed in any court of law, except under and in conformity with the provisions of the Act.

13. In the present case, the 1st respondent is admittedly not disputing the title of the appellant - Temple and he was declared by the Deputy Commissioner as an encroacher under Section 83 of the Act and his claim is that by way of mutual understanding/oral lease, he was permitted to continue in possession over the land in question. When this is the case of the 1st respondent, in view of the second proviso to Sub-section (2) of Section 84 and as he is not disputing the title of the appellant - temple, he is barred from instituting a suit in a civil court.

14. A perusal of the facts in W.A. No. 873/2007 dated 30.11.2007 would reveal that the appellants therein sought for a direction to the Executive Officer of Shri Venkateswara Swamy Devasthanam, Dwaraka Tirumala, West Godavari District to extend the lease and to quash the notice dated 5.7.2007 issued for auction of the land in question for grant of lease. Their case is that they have been cultivating the 26 land for the last many years and thus have acquired a right for granting the lease under the Act read with the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Lease of Agricultural Lands Rules, 2003 to the exclusion of others. The contention of the Temple therein is that they are not the lessees and that mere depositing of Maktas will not entitle them to claim leasehold rights. Considering these facts and circumstances and also considering the submission of the counsel for the appellants that the appellants may be granted some time till harvesting the existing crop, the Division Bench, while granting time to the appellants, passed certain directions and the direction No. 4, which is relevant, is extracted as under:

1.... 2.... 3....

4. No Civil Court in the State of Andhra Pradesh shall entertain any suit for permanent or temporary injunction, which may be filed by the appellants for the purpose of being allowed to retain possession of the land.”

f) The learned counsel for defendants 2 to 3 cited the decision in between S.Anjana Reddy Vs. Palvoi Ranga Reddy and others reported in 2017 (3) ALD 260, in which the Hon’ble High Court held at Paras-14 to 35 as follows:

“14. Now coming to decide the lis covered by the revisions, it is firstly in need to refer Order XX Rule 5 & Order XIV Rule 2 CPC.

14(a). Order XX Rule 5 CPC speaks that in suit in which issues have been framed, the Court shall state its finding or decision, with the reasons there for, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.

14(b). Order 14 Rule 2 CPC reads that:

2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to

(a) the jurisdiction of the court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

14(c). From its combined reading as also answered by this Court in CCCA.No.128 of 2009 dated 02.12.2015 between Smt. Maimoona Begum Vs. G.Sarat Babu on the scope of Order XX Rule 5 read with Order XIV Rule 2 CPC particularly from Paras 7 & 8 of the judgment, a combined reading of these provisions make it abundantly clear on question of law regarding jurisdiction or other legal bar to a suit once required to be decided and if was decided holding lack of jurisdiction or for other legal bar to maintain the civil suit there is no need to deal with other issues for practically the Court therefrom becomes functus officio. In this regard there is no any inconsistency between the two provisions. It is to say at the cost of repetition that if the Court gives any finding on the preliminary issue of lack of jurisdiction or other legal bar inherently which goes to the root of the matter, Court cannot decide the lis on merits and consequently functus officio.

15. Having regard to the above and because Section 151 of the Act also speaks that no suit or other legal proceeding in respect of administration or management of an institution or endowment or any other matters of dispute for determining or deciding, for which provisions is made in this Act shall be instituted in any Court of 27 law except under and in conformity with the provisions of this Act, it requires to decide jurisdiction and maintainability as a preliminary issue.

16. Section 2 Sub Section 8 of the Act defines Court for maintainability of any suit before any civil Court. A civil suit even not maintainable other than before the Court defined in Section 2 (8) of the Act. No doubt the City Civil Court in Hyderabad in the municipal corporation limits of Hyderabad got jurisdiction within the meaning of Court within territorial jurisdiction irrespective of pecuniary limitation under Section 6 of CPC and from the provisions of the Civil Courts Act 1972, read with Section 2(8) of the Actprovided there is no legal bar to civil suit. Once there is a legal bar, civil suit wont lie but for to approach the other machinery provided under the Act to decide the lis from the wording of Section 151 of the Act referred supra.

17. On the scope of Section 151 of the Act, a Division Bench of this Court in Sanjeeva Anjaneya Swamy Devastanam, Rajahmundry, rep. by Archaka-cum- Trustee v. Thakkula Dasaradha Ramaiah, 2009 2 ALT 431 held that when there is a provision in the Act to get relief, no civil suit lies in regular civil Court under Section 9 of CPC from said bar contemplated by Section 151 of the Act.

18. Here it is important to mention that by virtue of the amendment by Act No.33 of 2007 to the Act No.30/1987 which empowers the Government to constitute as many as Tribunals as it may think fit for purposes of the Act, for the determination of any dispute, question or the matter relating to charitable institution, dharmadaya religious charity, religious endowments, religious institutions or any institution defined in the Act and also defines the local limitation and jurisdiction of each of such Tribunal. Sub Section 1 of Section 162 speaks the above. Sub Sections 3 to 5 of Section 162 speak that the Tribunal shall consist of Chairman and one more member to be appointed by the Government and the Chairman must be or has been a Judicial Officer not below the rank of District

Judge and the Member not below the rank of Additional Commissioner of

Endowments who holds or as held a post and the Government may reconstitute the Tribunal may or abolish the Tribunal and the manner of taking decision and the procedure to be followed in conducting the proceedings are as may be prescribed.

19. No doubt a single Judge expression of this Court in E.O. SBMS Temple, Beeramguda Vs. Saikrupa Homes, 2010 6 ALD 207 held that the Tribunal constituted under the Act No.30/1987 is not competent to decide the issue of title and suit for declaration of title would not fall within the purview of the authorities under the Act within the prohibition under Section 151 of the Act.

20. Even in said expression of E.O. SBMS Templewhat is referred the Division Bench expression of this Court in Pindi Jaggayya Vs. Deity of Seetharamaswamy Varu, 1987 1 ALT 18. Pindi Jaggayyais prior to the amended Act No.33 of 2007 and there is no provision similar to Section 162 in existence by then and a close reading of the decision one way shows concurrent jurisdiction. From the expression in E.O. SBMS Templeonly in a case of declaratory relief sought, a civil suit can be maintained from the concurrent jurisdiction to that extent and it no way shows any other aspects.

21. In fact the law is fairly settled on implied ouster of civil Court from the expressions of the Apex court in Dhulabhai And Others Vs. State of Madhya Pradesh, 1969 AIR(SC) 78 that was also followed in Premier Automobiles Ltd Vs. Kamlekar Shantaram Wadke of Bombay, 1975 AIR(SC) 2238 and even the expression in VR Reddy Vs. KS Reddy, 1967 AIR(SC) 436 is under the Endowments Act 1967 and not under the Act 1987 for no such, much less same or similar provisions to Section 151 of the Act shown in existence, apart from Section 162 by Act No.33/2007 introduced is a new provision similar to the provision of the Wakfs Act No.43 of 1995.

22. Sections 83 & 85 of the Wakf Act, 1995 contain similar to the wordings of Section 162 (1) of the Amended Act No.33/2007 providing by constitution of the Tribunal for the determination of any dispute, question or the matter of any institution defined in the Act. In interpreting the provisions of the Wakf Actparticularly Section 83, the Apex Court in Board of Wakf, West Bengal Vs. Anis Fatma Begum, 2010 14 SCC 588 also referred to and explaining the earlier expression in Ramesh Gobindram (Deceased by LRs) v. Sugra Humayun MirzaWakf, 2010 AIR(SC) 2897 held categorically that, the Tribunal got exclusive jurisdiction since conferred to decide any question, dispute or other matters relating to Wakf or Wakf board.

23. Relying upon said expression of Anis Fatima supra, this Court in Srinivas Rao v. State of A.P., 2012 3 ALD 411 held that even revenue authorities have no jurisdiction to decide the nature of land and to grant ownership rights either under the Telangana Tenancy Act 1950 or AP (TA) Tenancy and Agricultural Lands Act, 1950 or for determination of issuing ORC under the Act 1955 and Wakf Tribunal alone got exclusive jurisdiction to decide for the aggrieved parties to approach the Tribunal to decide any dispute, question or other matters in relation to Wakf or Wakf Tribunal.

24. In CRP.No.5844 of 2011 between Mohd Ameerullah Died per L.Rs. Vs. the A.P. State Wakf Board, this Court by order dated 07.09.2016 also observed in this regard particularly from Paras 6 to 8 that once the lands are notified as wakf lands, but for the dispute to decide by the Wakf Tribunal under Sections 83 and 85 of the Wakf Act, 1995 and the revenue authorities neither under AP (TA) Tenancy Act, 1950 nor under Abolition of Inams Act, 1955 got jurisdiction to decide any dispute, question or other matter in relation to the wakf property by also referring to the expressions supra. It is also answered contextually of the provision covered by Section 162 (1) of the Amended Act No.33/2007 to the Act No.30/1987 is with similar wording of Sections 83 & 85 of the Wakf Act. Thereby the civil Court has no jurisdiction since exclusive jurisdiction conferred on the Tribunals under the provisions of the 2 Acts.

25. From this it is also necessary to mention particularly with reference to the Act No.30/1987 amended by 33/2007 incorporating Section 162 of the Act and also from Section 151 of the Act, another expression of this Court in Jampani Trilokeswari v. Dharmadoyatopu, rep. By its fit person, 2012 2 ALT 294 where it was held that civil Court has no jurisdiction but for the Endowments Tribunal and earlier the Deputy Commissioners who were having exclusive jurisdiction by virtue of the wording of Sections 151 and 162 of the Act.

26. From the above and after introduction of Section 162 (1) by the amended Act 33 of 2007, which provides for the constitution of the Endowments Tribunal to decide any dispute, question or other matters in relation to any institution under the Act. It is in fact pursuant to which and by G.O.Ms.No.837, Revenue (Endowments I) Department dated 13.08.2009 read with G.O.Ms.No.180 dated 28.02.2011 the Endowments Tribunal is constituted and is functioning with procedure in relation to deciding all the disputes with exclusive jurisdiction ousting thereby civil courts jurisdiction.

27. Further the expressions of the Apex Court in Omprakash Singh Vs. M.Lingamaiah, 2009 12 SCC 613, V.Lakshmi Narasamma v. A.Yadaiah, 2009 12 SCC 544 and State of Gujarat Vs. Gujarat Revenue Tribunal Bar Association, 2012 7 SCJ 487 the Tribunals as per legal fiction be deemed as civil Courts and also got jurisdiction to go into and decide any title dispute even and can decide with all attributes of a civil litigation, no doubt subject to disclosure of jurisdictional facts. Once such is the case any dispute including title dispute when the Tribunal can decide, civil courts jurisdiction is ousted and for that matter including of any other Tribunal including the Tribunals under Enams Abolition Act.

28. In fact in relation to the similar claim maintained against the 1st defendant institution in CRP.No.2385, 2230 and 2359 of 2016 referring to Section 151 of the Act where a preliminary issue was asked to decide among the 5 issues formulated on want of jurisdiction by virtue of bar under Section 151 of the Act, it is observed with a direction to decide as preliminary issue as per Order XIV Rule 2(b) CPC out of the issues settled, in relation to the jurisdiction because of the bar contained under Section 151 of the Act No.30/1987.

29. In W.P.No.10606 of 2006 in relation to the issue of ORC in favour of Sri Anjaneya Swamy Temple, Nalgonda District by judgment dated 18.03.2009 it was held that for adjudication of the dispute Section 87 of the Act No.30/1987 enables including to establish the contention of land does not belong to the temple and to grant any ORC in favour of private persons and the writ is disposed of by leaving open to Section 87 of the Act. The same is stated subject matter of W.A.No.1243 of 2009 with stay of operation. In fact irrespective of the writ petition order of the learned single Judge is subject matter of W.A. with stay of operation, the single

Judge expression of Srinivas Raoreferring to the expressions of the Apex Court in

Anis Fatimais when very clear under Section 83 of the Wakf Act of any dispute, question or other matter exclusively to be decided by the Tribunal and not even by 29 the revenue authorities under the AP (TA) Abolition of Inams Act, 1955. Once same is clear equally from the wording of Section 162 of the Act No.30/1987 amended by 33/2007 from the Endowments Tribunal is constituted and procedure for its functioning laid down and is functioning and the Tribunal as per the expressionsparticularly of Om Prakash supra, Gujarat Revenue Tribunal Bar Association and V. Lakshmi Narasamma supra, got all the traits of the civil Court and even can to go into and determine any title dispute and because Section 87 of the Endowments Act also enables including from Sections 151 and 162 of the Act which provide a bar for other authorities but for exclusive jurisdiction to the Endowments Tribunal to determine all disputes, questions or other matters in relation to any existence including as to entitlement of any title or grant of ORC or entitlement to tenancy rights etc., for the other authorities there is implied ouster of jurisdiction, but for to the Endowments Tribunal.

30. No doubt a single Judge expression of this Court in Mir Sadath Ali Vs. Joint Collector, Ranga Reddy District, 2009 2 ALD 124 observed that AP (TA) Abolition of Inams Act 1955 is a self contained one providing for internal mechanism to resolve every dispute arising thereunder conferred power on RDO to decide all issues which arise in course of arising into claims under Section 4(18) of the Act including the issues in relation to succession and thereby not necessary to relegate the parties to civil court for adjudication on question of succession, that decision one way shows a Tribunal provided with mechanism to decide a dispute can got into the title and decide all disputes and parties cannot be relegated upon civil court jurisdiction but for the special jurisdiction conferred on the Tribunal.

31. In fact, subsequent to the provisions of the Act 1955once by virtue of the Act No.30/1987 there is exclusion of jurisdiction from Section 151 of the Act which is no doubt subject to Section 77 of the Act which enables with concurrent jurisdiction to approach the RDO for suo motu enquiry even by him to decide nature of inam, once the Act is amended and Section 162 is incorporated by Act No.33/2007 enables to decide any dispute, question or other matter in relation to any institution under the Act for that matter to decide any entitlement of occupancy rights under the Act 1955 or any protected tenancy rights under Act 1950, the Tribunal constituted under the Endowment Act is since functioning as discussedwith the procedure and mechanism that alone is having exclusive jurisdiction and not the other forums including to exercise any concurrent jurisdiction.

32. In fact as referred supra, out of the 4 suits, one is for damages, two are for possession and one is for bare injunction and none of the suits are for declaration sought by any of the plaintiffs for the property much less with the claim as private property so to declare despite the ORC granted in favour of private person Dr. Niranjan Prasad was on appeal by the temple authorities of the Endowments Department remanded and ORC originally issued in 1992 was cancelled and consequently ORC issued in favour of the temple by the primary authority-RDO under the Act 1955.

33. From the above, once there is inherently and prima facie, lack of jurisdiction to the Civil Court but for to approach the Endowments Tribunal and prima facie from the facts the ORC granted in favour of the vendors or predecessors in title of the respective plaintiffs of the four suits in 1992 were already cancelled and ORC granted in favour of the temple under the Act 1955, still to claim as private property or to question the ORC from Section 87 of the Act enables the remedy is to approach prima facie the Endowments Tribunal and not by civil suits.

34. From the material appearing on the record when such is the case the lower court has gravely erred in not considering the application to decide the preliminary issue the lack of jurisdiction of the civil Court.

35. Having regard to the above, all the four revisions are allowed by directing the lower Court to decide the jurisdictional aspect as a preliminary issue within the meaning of Order XIV Rule 2 (b) with Order XX Rule 5 CPC with reference to Sections 151 read with 162 of the Act and the notifications issued in G.O.Ms.837

dated 13.08.2009 and G.O.Ms.No.180 of 28.02.2011 and other connected Gazette

notifications relevant, if any, and further read with Sections 83, 84 and 87 of the Act No.30/1987 amended by Act No.33/2007.”

g) The learned counsel for defendants 2 and 3 cited the decision in between Tutta Chinnayya and others Vs. Executive Officer, Varaha Lakshmi 30

Narasimha Swamy Vari Devasthanam, Simhachalam, Visakhapatnam reported in 2016 (6) ALD 63 (D.B.), in which the Hon’ble High Court held at Paras-23 to 26 as follows:

“23. In fact, it is not the 12 years period prescribed by the general provisions of the Limitation Act, 1963 particularly under Articles 64 & 65; but under the Special Law covered by the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowment Act, 1987 that is what is required to consider as rightly concluded by the Tribunal in its finding from the evidence on record proved of the land in question belongs to the temple and it is an inam land and the Temple is also granted the patta for the land as proved by the Temple. Once it is an inam land of the Temple, to perfect title by adverse possession of the inam land of the Temple as per the Madras Hindu Religious Endowments Act 2 of 27 which repeals the earlier Act 1 of 1925 that repeals the first legislation covered by Act 20 of 1863 that repeals the earlier Endowment and Escheats Regulation 7 of 1817, and more particularly from the Act 2/27 amended by Act 11/1934, it must be proved and established that by the time the amended Act 11/34 came into force, the person claiming adverse possession for such temple land has perfected title by adverse possession 60 years prior to that to say as long as before 1874 and the same is also reiterated by the expression of the Madras High Court in Visweswara Swamy and Veera Raghava Perumal Devasthanam of Tirupur Vs. Collector of Coimbatore, 1960 1 MadLJ 467 and Ganapathi Pandaram V. Collector, Coimbatore, 1960 1 MadLJ 247.

24. For more clarity the law right from the regulation 7/1817 till date to be summarized as follows:

(i) The place where the property is situated in Visakhapatnam District was covered by the composite state of Madras and the deity is under control of the Madras Endowments Board and the legislations there under viz., The Endowments and Escheats Regulation,7/1817 was later replaced by the 1st legislation in the Madras Presidency known as the Religious Endowments Act,20/1863, that was later repealed and replaced by the Madras Hindu Religious Endowments Act,1/1925 which later again by the Madras Hindu Religious Endowments Act,2/1927 and the same was amended many a time including by the amended by Act,11/1934 and the subsequent legislation to it was the Madras Hindu Religious and Charitable Endowments Act,19/1951 and thereafter by the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act,17/1966 that again was repealed and in its place the present Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act,30/1987 came into force from 28.5.1987 that govern. The A.P Act, XVII of 1966 came into force and the same provision incorporated even in the Act, XXX of 1987 covered by Sec.143 which provides that nothing in the law of limitation for the time being in force shall be deemed to vest in any person the property governed by the Act which has not vested before 30.9.1951.

(ii) As per Sec.76(1) of the Act,1926 (Act,2/1927) the permission was also mandatorily required to be obtained by the Trustees from the competent authority by showing necessity and without which there could be no exchange, sale or mortgage and no lease for a term exceeding 5 years of any immovable property belonging to any Mutt, Temple or Specific endowment. Nothing shall be valid or operate unless it is shown necessary and beneficial to the Mutt, Temple or Specific endowment and same in recognition of such necessity or benefit is sanctioned by the Board.

(iii) Thus, it is not either proof of possession for 12 years with animus possessandi or even 12 years before to the date of the Act,19/1951 came into force, for proof of adverse possession but for the proof of perfecting title by adverse possession even by the year 1874 as per section 44-B of the Act,2/1927(amended by Act,11/1934).

25. Therefore, the Respondents to the Land Grabbing eviction case cannot claim any adverse possession over the subject property of the temple. Even from any possession of the property governed by the Endowments Act by the persons unconnected with the temple(endowment) with animus possessendi for any claim on the ground that such persons acquired an indefeasible title by adverse possession, such possession should have held for 60 years prior to the coming into 31 force of the Madras HRE (Amendment) Act 11/1934 by which Sec.44(b) that was introduced by amendment to the Madras HRE Act,1926(Act 2/1927) which mean no adverse possession can be held by persons unconnected with the services of the temple-vide decisions Visweswara Swamy and Veera Raghava Perumal Devasthanam of Tirupur and Ganapathi Pandaram supra.

26. Having regard to the above, when the Land Grabbing Tribunal having no right to ask the respondents-land grabbers to the land grabbing case to retain possession and pay compensation at market value, said direction by the Tribunal to pay at Rs.80/- per Square yard is beyond its jurisdiction for not conferred by the Act and thereby, it is unsustainable and illegal and is liable to be set aside. Accordingly point Nos.1 and 2 for consideration are answered.”

h) The learned counsel for plaintiff cited the decision in between Dokiseela Ramulu Vs. Sangameswara Swamy Varu and others reported in 2017 (2) SCC 69, in which the Hon’ble Supreme Court held at Paras-14 to 18 as follows:

“14. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties. First and foremost, it needs to be determined, whether there is an existing lease of agricultural land between the appellant and respondent no.1 Sri Sangameswara Swamy Varu. It is only if there was a subsisting lease when the 1987 Act was promulgated, Section 82 can be invoked. We are satisfied, that consequent upon issuance of a notification under Section 3 of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari), Act 1948 on 17.01.1959, the agricultural land in question in the revenue Estate of Sangam Agraharam village, was duly declared as an 'Inam Estate'. The right of the appellant in the aforesaid 'Inam Estate' is obviously dependent on the determination of the tenancy claim of the appellant prior to 17.01.1959, i.e., the notified date. Insofar as instant issue is concerned, Original Suit No.32/1974 was decreed in favour of the appellant, and it was duly declared that the appellant was in possession of the land in question. The appellant and his ancestors were also held to be in continuous possession of the land in question, well before the notified date 17.01.1959. That being the position, in terms of Section 11 of the 1948 Act, the appellant automatically became entitled to a "ryotwari patta". We say so because, it is only when the possession and occupation of the agricultural land is subsequent to the first day of July, 1945, that the State Government would examine the circumstances of each case, and thereupon, in an appropriate case, issue a direction, that "ryotwari patta" was to be extended to the tenant of such agricultural land. However, since Original Suit No.32/1974 clearly declared, that the agricultural land in question was under the tenancy of the appellant and his ancestors well prior to the notified date 17.01.1959, the appellant was automatically entitled to "ryotwari patta", in respect of the land in question.

15. Having concluded as above, we are satisfied, that Section 82 of the 1987 Act, is inapplicable to the present controversy, because the appellant cannot be treated as a lease holder of agricultural land belonging to, or given, or endowed for purpose of any institution or endowment, subsisting on the date of commencement of the 1987 Act, namely, on 21.04.1987. The above position also emerges from the dismissal of Suit No.73/1974 filed by the Estate Officer, Devasthanam, wherein the assertion made on behalf of Sri Sangameswara Swamy Varu, that there existed a landlord tenant relationship with the appellant herein, on the basis of an alleged kadapa (rent-deed) dated 29.11.1970, was rejected. The aforesaid finding admittedly assumed finality between the parties. For the above reason, the reliance placed on the judgment in the Muddada Chayanna case , is of no avail to the respondent institution, because in the above judgment the undisputed position noticed in paragraph 3 (extracted above) was, that the appellant was the lawful ryot of the lands in dispute, and that, the respondents were his tenants. The appellant herein, is not the tenant of Sri Sangameswara Swamy Varu.

16. It is also relevant for us to notice, that in order to escape the binding liability emerging out of the judgment and decree dated 31.10.1977 (passed in Original Suit Nos. 32 of 1974 and 73 of 1974), wherein the relationship between the appellant and the Sri Sangameswara Swamy Varu, was held to be not as of tenant and landlord, learned counsel for respondent no.1, vehemently contended, that the civil courts had no jurisdiction in the matter, and as such, the appellant 32 could not derive any benefit from the above judgment. It is not necessary for us to deal in any detail, with the provisions relied upon by learned counsel, because the precise submission advanced on behalf of respondent no.1, was examined in State of Tamil Nadu v. Ramalinga Samigal Madam, 1985 4 SCC 10, wherein this Court held as under:

"12. Now turning to the question raised in these appeals for our determination (it is true that Section 64-C of the Act gives finality to the orders passed by the Government or other authorities in respect of the matters to be determined by them under the Act and sub-section (2) thereof provides that no such orders shall be called in question in any court of law. Even so, such a provision by itself is not, having regard to the two propositions quoted above from Dhulabhai, 1968 3 SCR 662, decisive on the point of ouster of the Civil Court's jurisdiction and several other aspects like the scheme of the Act, adequacy and sufficiency of remedies provided by it etc., will have to be considered to ascertain the precise intendment of the Legislature. Further, having regard to the vital difference indicated above, in between the two sets of provisions dealing with grant of ryotwari pattas to landholders on the one hand and ryots on the other different considerations may arise while deciding the issue of the ouster of Civil Court's jurisdiction to adjudicate upon the true nature of character of the concerned land. Approaching the question from this angle it will be seen in the first place that Section 64-C itself in terms provides that the finality to the orders passed by the authorities in respect of the matters to be determined by them under the Act is "for the purposes of this Act" and not generally nor for any other purpose. As stated earlier the main object and purpose of the Act is to abolish all the estates of the intermediaries like Zamindars, Inamdars, Jagirdars or under-tenure holders etc. and to convert all land-holdings in such estates into ryotwari settlements which operation in revenue parlance means conversion of alienated lands into non- alienated lands, that is to say, to deprive the intermediaries of their right to collect all the revenues in respect of such lands and vesting the same back in the Government. The enactment and its several provisions are thus intended to serve the revenue purposes of the Government, by way of securing to the Government its sovereign right to collect all the revenues from all the lands and to facilitate the recovery thereof by the Government and in that process, if necessary, to deal with claims of occupants of lands, nature of the lands, etc. only incidentally in a summary manner and that too for identifying and registering persons in the revenue records from whom such recovery of revenue is to be made. The object of granting a ryotwari patta is also to enable holder thereof to cultivate the land specified therein directly under the Government on payment to it of such assessment or cess that may be lawfully imposed on the land. Section 16 is very clear in this behalf which imposes the liability to pay such ryotwari or other assessment imposed upon the land to the Government by the patta-holder. The expression "for the purposes of this Act" has been designedly used in the section which cannot be ignored but must be given cogent meaning and on a plain reading of the section which uses such expression it is clear that any order passed by the Settlement Officer either granting or refusing to grant a ryotwari patta to a ryot under Section 11 of the Act must be regarded as having been passed to achieve the purposes of the Act, namely, revenue purposes, that is to say for fastening the liability on him to pay the assessment or other dues and to facilitate the recovery of such revenue from him by the Government; and therefore any decision impliedly rendered on the aspect of nature or character of the land on that occasion will have to be regarded as incidental to and merely for the purpose of passing the order of granting or refusing to grant the patta and for no other purpose."

For reason of the above legal position declared by this Court, it is not possible to accept, that the judgment and decree dated 31.10.1977, was not binding on the Sri Sangameswara Swamy Varu.

17. It is also not possible for us to accept, that the claim raised by the appellant was barred by limitation. It was never in dispute between the parties, that the appellant was in possession of the land. Only that, respondent no.1 claimed that the appellant was in possession of the land, as its tenant. Our instant determination on the issue of limitation emerges from the fact, that the appellant had preferred Execution Application No.18/2007 when respondent no.1 allegedly tried to interfere with the possession of the agricultural land in question, on 06.07.2005.

There was no justification for determining limitation, with reference to the date when the decree in Original Suit No.32/1974 was passed. The relevant date for determining limitation was 06.07.2005, when the appellant's possession was 33 allegedly threatened. Viewed as above, the claim raised by the appellant, was certainly not barred by limitation.

18. Having concluded as above, we are of the view, that the instant appeal deserves to be allowed, and the same is accordingly allowed, and the impugned order passed by the High Court is set aside.”

j) In this suit as the trial Court held that the plaint schedule property is covered by S.Nos.13/16 and 17 and also observed in Para No.11 of the judgment that since no survey number was mentioned, a doubt has arisen and crucial point or issue to be decided in this suit is whether the suit schedule property is situated in S.No.13/19 or S.No.13/16 and 17. In the judgment in

O.S.877/1996 as per Exs.A-6 and A-7 it is held that the plaint schedule

property in that suit is in S.No.13/19 of Indrapalem village. The trial Court observed that the possession of the plaintiff is encroacher. The suit in

O.S.877/1996 was filed against Rayudu Ramana by the plaintiff in this suit. In

view of that the learned counsel for plaintiff submits about how it can be said that Rayudu Ramana inducted the plaintiff into possession of the property and further submits that the trial Court wrongly held that the plaintiff is encroacher. The learned counsel for plaintiff also submits that the trial Court having taken that the suit property and the property covered by the earlier suit in O.S.877/1996 are one and the same, the trial Court cannot say that the plaint schedule property is not covered by S.No.13/19. In view of the serious dispute regarding whether the plaint schedule property is situated in

S.No.13/16 and 17 or in S.No.13/19, as per the principles laid down in the above decisions, in order to decide the dispute or issue or jurisdiction,

additional evidence sought to be received which are certified copy of the Field

Measurement Book and adangals relating to S.No.13/19, 13/16 and 13/17 and also certified copy of adangals which are absolutely necessary and they are important and essential for just decision of the dispute and issue involved in the suit. The possession of the property by the plaintiff is not in dispute. The petitioner is claiming that subsequent to filing of the appeal the petitioner came to know that the Devastanam has no right in the property purchased by him covered by S.No.13/19. The petitioner obtained certified copy of the Field 34

Measurement Book relating to S.No.13. If the properties are measured as per the Field Measurement Book and also as per the certified copy of the adangals it will be clear that the property claimed by the petitioner does not belong to respondents in the appeal and in order to establish that the petitioner’s property is not in the property of the temple i.e. respondents it is necessary to measure the property as per the Field Measurement Book and adangals. He is also claiming that he could not file the documents now filed and sought to be received as additional evidence earlier into the Court as he is not obtained those documents previously and that there are no willful negligence or laches on the part of petitioner in not filing the documents earlier into Court. The 1st respondent remained exparte. The respondents 2 and 3 apart from claiming that the civil Court has no jurisdiction to entertain the present appeal, as it has no jurisdiction to decide the dispute involved in this case, the petitioner/ appellant did not comply with Order 41 Rule 27 of C.P.C. The respondents 2 and 3 also claiming that 3rd respondent is the absolute owner of the plaint schedule property. They are also claiming that mandatory ingredients under

Order 41 Rule 27 of C.P.C are not pleaded, proved or established as the alleged documents are the permanent records available with the Government to the knowledge of one and all and it is not explained why the alleged documents are not filed in the lower court and why the commissioner petition was also not filed and that it is established principles of law to gather evidence no commissioner should be avoided more particularly to cover up lacunas and gaps in the trial Court that too in appellate Court on that count itself the commissioner petition is liable to be dismissed in limini.

24. a) The learned counsel for plaintiff cited the decision in between Union of India Vs. K.V.Lakshman & Ors. reported in AIR 2016 SC 3139, in which the

Hon’ble High Court held at Paras-37 to 44 as follows:

“37. Order 41 Rule 27 of the Code is a provision which enables the party to file

additional evidence at the first and second appellate stage. If the party to appeal is

Merely because the Court allowed one party to file additional evidence in appeal would not by itself mean that the Court has also decided the entire case in his favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record, the appellate Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal.

38. Coming to the case, since we have allowed the application made by the appellant under Order 41 Rule 27 of the Code and has permitted the appellant to file additional evidence then as a necessary consequence, the impugned order has to be set aside and respondents are granted an opportunity to file additional evidence in rebuttal, if they so wish to file.

39. The other inevitable consequence is that the case has to be remanded either to the High Court for deciding the appeal afresh on merits or to the Trial Court for deciding the civil suit afresh on merits in accordance with law.

40. Having regard to the nature of controversy and the manner in which the suit/appeal was decided, we consider it appropriate, in the interest of parties, to remand the case to the Trial Court (District and Sessions Judge, Bengaluru) for deciding the civil suit afresh on merits in accordance with law.

41. In view of foregoing discussion, the appeal succeeds and is allowed. The impugned judgment and also the judgment/decree passed by the Trial Court are set aside.

42. The civil suit is now restored to its file. The Trial Court, i.e., District and

Sessions Judge Bengaluru, is directed to retry the civil suit on merits. The

additional evidence filed by the appellant is taken on record. The respondents are

afforded an opportunity to file additional evidence in support of their case in rebuttal. The parties are at liberty to amend their pleadings in case, if they so wish and further adduce additional oral evidence in support of their respective case in addition to what has already been adduced and prove the documents filed at the appellate stage.

43. While trying the civil suit, the Court may in its discretion or at the instance of any party, as the case may be, consider appointing Court Commissioner preferably any retired government revenue official by taking recourse to the provisions of Order 26 of the Code to undertake spot inspection of the suit land with a view to verify its exact location, area, boundaries etc. keeping in view the evidence on record in relation to the suit land.

44. The Trial Court shall decide the civil suit strictly in accordance with law on the basis of pleadings and the evidence adduced by the parties uninfluenced by any observations, reasoning and the findings of the two Courts below which stand now set aside.”

b) The learned counsel for plaintiff cited the decision in between

Kamalammal & Anr. Vs. Devagi & Ors. reported in 2017 (2) MLJ 598, in which the Hon’ble Madras High Court held at Paras-14 to 16 as follows:

“14. The reception of the additional evidence by the first appellate court is seriously impugned in the second appeals. According to the plaintiff's counsel, the first appellate court, without considering whether the ingredients of Order 41 Rule 27 CPC had been satisfied by the contesting defendants, without giving acceptable reason, had erred in marking the additional evidence in support of the case of the contesting defendants and therefore, it is pleaded that no reliance whatsoever should be placed upon the additional evidence for upholding the case of the contesting defendants. In this connection, reliance is placed upon the decisions reported in (Govt. of Karnataka and Anr. Vs. K.C.Subramanya and Ors, 2014 1 LW 103 ), (T.Tamilarasan Vs. Arokkiasamy, Thomas and Devasagayam, 2007 3 CTC 456 ) and (Kaliyammal Vs. Ganapathi, 2015 5 CTC 78 ). A perusal of the above said decisions and also, the principles of law outlined under Order 41 Rule 27 CPC would go to show that, as rightly contended, the first appellate court has erred in marking the additional evidence as Exs.B29 to 43 in support of the case of the contesting defendants without satisfying itself that the contesting defendants had fulfilled the requirement of Order 41 Rule 27 CPC. As rightly pointed out, it is not the case of the defendants that the additional documents are not within their 36 knowledge or within the knowledge of the first defendant during the course of the trial. Therefore, it could be seen that the contesting defendants have not pleaded that the additional documents are not within their knowledge during the course of trial and thereby, they had been prevented from marking the same before the trial Court. That apart, they have also not pleaded as to when they had come to know about the existence of the additional documents exhibited as Exs.B29 to 43 and from whom and when they had taken the custody of the said documents so as to enable them to file the same before the first appellate court. With reference to the same, no plea or reason has been given in the petition. Therefore, it could be seen that the contesting defendants have not satisfied the essential ingredients for marking the additional evidence as contemplated under Order 41 Rule 27 CPC and also, as pointed out in the above said authorities. Even the first appellate court has not given any reason in the impugned order in I.A.No.7 of 2011 that the contesting defendants had satisfied the requirements of Order 41 Rule 27 CPC and therefore, he is entertaining the said application. With reference to the same, nothing has been discussed by the first appellate Court. Further, it has not even been held by the first appellate court that the additional documents produced by the contesting defendants are essential for enabling him to pronounce judgment in the case. Therefore, it could be seen that none of the essential ingredients of Order 41 Rule 27 CPC has been satisfied in the case for the reception of the additional evidence and without any application of mind or oblivious to the principles of law enunciated under Order 41 Rule 27 CPC, it could be seen that the first appellate court had chosen to entertain the reception of the additional evidence. On the other hand, it is found that the first appellate court had proceeded to receive the additional evidence on the footing that the same could be entertained as they being ancient documents and require no further proof. That aspect of the matter should be gone into only after being satisfied whether the sine qua non requirements for the reception of the additional evidence had been satisfied. At the first instance when the reception of the documents as additional evidence itself had not been made out by the contesting defendants and when it is not even the case of the first appellate court that the said documents are essential for the just decision of the case, it could be seen that the first appellate court has completely erred in marking the

additional documents as Exs.B29 to 43. Therefore, as rightly pointed out by the

plaintiff's counsel, the order passed in I.A.No.7 of 2011 cannot be sustained any further and the same has to be thrown out. I therefore hold that the principles of law governing the issue as regards the reception of the additional evidence at the appellate stage adumbrated under Order 41 Rule 27 C.P.C and in the above said decisions cited by the plaintiff's counsel and also the another decision of the Apex Court reported in (Union of India Vs. Ibrahim Uddin and Another, 2012 8 SCC 148) have not been diligently followed by the first appellate court. Consequently, the impugned order passed in I.A.No.7 of 2011 is set aside. Resultantly, it could be seen that the additional evidence marked as Exs.B29 to 43 have to be eschewed, cannot be taken or considered for any purpose in support of the case of the contesting defendants. Therefore, the additional evidence marked as Exs.B29 to 43 are branded as improper evidence marked in the case and not permissible under law and therefore, there are excluded from the zone of consideration for deciding the issues involved in the matter. Barring Exs.B29 to 43, no other material has been placed by the contesting defendants to hold that it is only the first defendant, who had purchased the properties covered under Exs.A1 to 7, As seen above, the contesting defendants have not placed any material to hold that the first defendant had considerable savings with her to enable her to acquire the properties covered under Exs.A1 to 7. When that plea is ruled out, the other plea is only the contribution of funds to her by her father. For the same, no document has been produced in the trial court. However, before the appellate court the additional documents marked as Exs.B29 to 43 have been marked. However, for the reasonings aforementioned when Exs.B29 to 43 are put out from the domain of consideration for the reasons that they had been received as additional evidence against the cannons of the well established principles of law as adumbrated under Order 41 Rule 27 CPC, it could be seen that there is nill evidence on the part of the contesting defendants to enable the court to hold that the first defendant had been possessed of sufficient means to enable her to acquire the properties covered under Exs.A1 to 7. A reading of the judgment of the first appellate Court would only go to show that mainly upon Exs.B29 to 43 alone, it had upheld the case of the first defendant and thereby, reversed the well considered reasonings and conclusions of the trial court for disbelieving the defence of the first defendant as regards the acquisition of the properties under Exs.A1 to 7.

15. As adverted to above, voluminous documents have been marked on the side of the plaintiff to show that it is only the deceased Ramabadra Udaiyar, who 37 had owned and exercised absolute ownership over the properties covered under Exs.A1 to 7 and no contra evidence has been adduced on the side of the contesting defendants for holding otherwise.

16. In the light of the above discussions, the reasonings and conclusions of the trial court for holding that it is only the deceased Ramabadra Udaiyar, who is the real owner of the properties covered under Exs.A1 to 7 and the first defendant is only the ostensible owner and as such, the deceased Ramabadra Udaiyar is entitled to Will the properties covered under Exs.A1 to 7, do not call for any interference and no infirmity is ascribed to the same.”

c) In the decision reported in 2016 AIR (SC) 3139in between Union of

India Vs K.V.Lakshman & Orsthe Hon’ble Supreme Court held as follows in Paras 26 to 47:

26) We consider it apposite to refer to some of the decisions.

27) In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held (at pages 188-189) as under: “.……..the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court……while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it…………”

28) The above view was followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v.Sangram & Ors.,(2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

29) In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at p. 244) stated as under: (SCC para 3) “3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.”

30) Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court (at pp. 303-04) observed as follows: (SCC para 2) “2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion……...”

31) Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this court reiterated the aforementioned principle with these words: “3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which theappellant is entitled.4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and 38 on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first Appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.”

32) The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174.

33) This takes us to the next question in relation to the application filed under Order 41 Rule 27 of the Code. In our considered view, the High Court committed another error when it rejected the application filed by the appellant under Order 41 Rule 27 of the Code. This application, in our opinion,should have been allowed for more than one reason.

34) First, there was no one to oppose the application. In other words, the respondents were neither served with the notice of appeal and nor served with the application and hence they did not oppose the application. Second, the appellant averred in the application as to why they could not file the additional evidence earlier in civil suit and why there was delay on their part in filing such evidence at the appellate stage. Third, the averments in the application were supported with an affidavit, which remained un-rebutted. Fourth, the application also contained necessary averment as to why the additional evidence was necessary to decide the real controversy involved in appeal. Fifth, the additional evidence being in the nature of public documents and pertained to suit land, the same should have been taken on record and lastly, the appellant being the Union of India was entitled to legitimately claim more indulgence in such procedural matters due to their peculiar set up and way of working.

35) It was for all these reasons, we are of the view that the application filed by the appellant under Order 41 Rule 27 of the Code deserved to be allowed and is accordingly allowed by permitting the appellant to file additional evidence.

36) Learned counsel for the respondents, however, contended that the additional evidence is not relevant for deciding the appeal/suit. He also urged that the appellant has not pleaded any cause as required under Order 41 Rule 27 to file such evidence at the appellate stage. We are not impressed by this submission in the light of the reasons given supra. This submission is accordingly rejected.

37) Order 41 Rule 27 of the Code is a provision which enables the party to file

additional evidence at the first and second appellate stage. If the party to appeal is

able to satisfy the appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject matter of the lis, the Court should allow the party to file such additional evidence. After all, the Court has to do substantial justice to the parties. Merely because the Court allowed one party to file additional evidence in appeal would not by itself mean that the Court has also decided the entire case in his favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record, the appellate Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal.

38) Coming to the case, since we have allowed the application made by the appellant under Order 41Rule 27 of the Code and has permitted the appellant to file

additional evidence then as a necessary consequence, the impugned order has to

be set aside and respondents are granted an opportunity to file additional evidence in rebuttal, if they so wish to file.

39) The other inevitable consequence is that the case has to be remanded either to the High Court for deciding the appeal afresh on merits or to the Trial Court for deciding the civil suit afresh on merits in accordance with law.

40) Having regard to the nature of controversy and the manner in which the suit/appeal was decided, we consider it appropriate, in the interest of parties, to remand the case to the Trial Court (District and Sessions Judge, Bengaluru) for deciding the civil suit afresh on merits in accordance with law.

41) In view of foregoing discussion, the appeal succeeds and is allowed. The impugned judgment and also the judgment/decree passed by the Trial Court are set aside.

42) The civil suit is now restored to its file. The Trial Court, i.e., District and

Sessions Judge Bengaluru, is directed to retry the civil suit on merits. The

additional evidence filed by the appellant is taken on record. The respondents are

43) While trying the civil suit, the Court may in its discretion or at the instance of any party, as the case may be, consider appointing Court Commissioner preferably any retired government revenue official by taking recourse to the provisions of Order 26 of the Code to undertake spot inspection of the suit land with a view to verify its exact location, area, boundaries etc. keeping in view the evidence on record in relation to the suit land.

44) The Trial Court shall decide the civil suit strictly in accordance with law on the basis of pleadings and the evidence adduced by the parties uninfluenced by any observations, reasoning and the findings of the two Courts below which stand now set aside.

45) We may also clarify that we have refrained from recording any finding either way on the merits.

46) Since the civil suit is quite old, we direct the District and Sessions Judge Bengaluru to decide the civil suit expeditiously and preferably within 6 months from the date of party’s appearance before him. Parties to appear before the District and

Sessions Judge Bengaluru on 01.08.2016.

47) The original record of the case, if requisitioned, be sent forthwith to the Trial Court (District and Sessions Judge, Bengaluru) so as to reach to the Court concerned before the date of parties appearance.

d) In the decision reported in 2017 (SC) 404in between J.Balaji Singh Vs. Diwakar Cole & Orsthe Hon’ble Supreme Court held as follows in Para 13 to 31:

13. The question, which arises of consideration in this appeal, is whether the High Court was justified in allowing the defendants appeal and thereby justified in restoring the judgment/decree of the Trial court which had dismissed the suit. In other words, the questions which arose before the High Court were whether the first appellant court was justified in setting aside the judgment/decree of the Trial Court, and if so, whether it was justified in remanding the case to the Trial court for fresh trial of the suit in accordance with law. another question, which fell for consideration, was whether the first appellate court was justified in allowing the application filed by the appellant (plaintiff) under Order 41 Rule 27 of the code by which the plaintiff had sought permission to adduce additional evidence in appeal in support of his case.

14. As is clear from mere perusal of the impugned judgment, we find that the High Court recorded inconsistent finding insofar as it pertained to order 41 Rule 27 of the conde. In para 26, it was held as under. “26 Assuming that the lower appellat court felt that the additional documents filed by the plaintiff in the appeal before it have some bearing on the case, nothing prevented it from considering the same. Giving opportunity to both parties to lead evidence and deciding the appeal.

15. Whereas in the other part of the judgment, the learned single judge did not approve the approach of the first appellant court in granting indulgence to the appellant to fill the lacuna by adducing evidence. Be that as it may, having observed this, the High Court proceeded to examined the case on merits and eventually allowed the appeal, set aside the judgment of the first appellate court 40 and restored the judgment/decree of the trial court. The effect of the judgment of the High court is that the plaintiff’s suit stands dismissed.

16.The main question, which fell for consideration before the High court was whether the first appellate court was right in remanding the case to the Trial Court for fresh trial on merits?

17. There are three provisions in the code which deal with the power of the appellate court to remand the case to the Trial Court. These provisions are Order 41 Rule 23, 23-A, and 25.

18. So far as Order 41 Rule 23 is concerned, it enables the appellate court to remand the case to the Trial court when it finds that the Trial court has disposed of the suit upon a preliminary point. The appellant court in such cases is empowered to direct the Trial court to decide all the issues on evidence on record.

19. So far as Rule 23-A is concerned, it enables the appellate court to remand the case to the trial court when it finds that though the trial court has disposed of the suit on all the issues but on reversal of the decree in appeal, a re-trial is considered necessary by the appellant court.

20. So far as Rule 25 is concerned. It enables the appellate court to frame or try the issue if it finds that it is essential to the right decision of the sit and was not framed by the trial court. The appellate court in such case may accordingly, frame the issues and refer the same to the trial court to take the evidence and record the findings on such issues and return to the appellate court for deciding the appeal. In such cases, the appellate court retains the appeal to itself.

21. Now coming to the facts of the case, we are of the considered opinion that once the first appellate court allowed the application under order 41 rule 27 of code and took on record the additional evidence, it rightly set aside the judgment/decree of the Trial court giving liberty to the parties to lead additional evidence in support of their case which, in turn, enabled the trial court to decide the civil suit afresh on merits in the light of entire evidence. The first appellate court was therefore. Justified in taking recourse to powers conferred on the appellate court under order 41 Rule 23-A for remanding the case to the trial court we find no fault in exercise of such power by the first appellant court.

22. In our considered view, the only error which the first appellat court committed was that it went on to record the findings on merits. In our view, it was not necessary to so while passing the order of remand. The reason is that once the first appellate court formed an opinion to remand the case. It was required to give reasons in support of the remand order as to why the remand is called for in the case. Indeed, the remand was made only to enable the trial court to decide the case on merits. Therefore, there was no need t discuss much less record findings on several issues on merits. It was totally uncalled for.

23. So far as the impugened order is concerned, the High Court, in our view, committed jurisdictional error when it also again examined the case on merits and set aside the judgment of the first appellate court and restored the judgment of the trial court. The High court, in our opinion, should not have done this for the simple reason that it was only examining the legality of the remand order in an appeal filed under order 43 Rule 1(u) of the code indeed. Once the High court came to a conclusion that the remand order was bad in law then it could only remand the case to the first appellate court with a direction to decide the first appeal on merits.

24. The High Court failed to see that when the first appellate court itself did not decide the appeal on merits and considered it proper to remand the case to the trial court, a fortiori, the High Court had no jurisdiction to decide the appeal on merits. Moreover, Order 43 Rule 1(u) confers limited power on the High Court to examine only the legality and correctness of the remand order of the first appellate court but not beyond that in other words, the High Court should have seen that order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order. As is clear from order 43 Rule 1(u) which reds thus: 1(u) and order under rule 23 or rule 23A of Order XLI remanding a case. Where an appeal would lie from the decree of the appellate court.”

25. It is well settled law that the jurisdiction to decide the appeal on merits can be exercised by the appellate court only when the appeal is filed under section 96 or 100 of the code against the decree. Such was not the case here.

26. In the light of above mentioned discussion. We are of the opinion that the High Court had no jurisdiction to consider much less deciding the entire case of the parties on merits in such appeal.

27. We are also unable to agree with the High Court when it held that the first appellate court instead of remanding the case to the Trial Court should have heard the appeal on merits. This finding in our view, is bad in law for the reason that firstly. It was not possible for the first appellate court to have recorded the evidence as the appellate stage. Secondly, having regard to the nature of factual controversy ivolved and keeping in view the nature of additional evidence filed which too needed to be proved in evidence. It was not possible to retain the appeal to itself and invite finding only on additional evidence by taking recourse to powers under Rule 25, and lastly, wholesome remand, as directed by the first appellate court, would enable the trial court to appreciate the entire evidence in its proper perspective while deciding the suit afresh on merits.

28. We are also unable to agree with the High Court when it reversed the finding of the first appellate court, in so far as it pertained to application filed by the plaintiff under order 41 rule 27 of the code. In our opinion, no fault could be found in the finding of the first appellate court on this issue for the following reasons.

29. First, the additional evidence sought to be filed at the first appellate stage was held to be material and necessary for proper adjudication of the suit and second the reasons as to why it could not be filed during the trial also found acceptance to the first appellate court.

30. In order to enable the parties to have fair trial in civil suit and with a view to do substantial justice, the first appellate court in our view, rightly allowed the plaintiff to file the additional documents in appeal which satisfied the requirements of order 41 Rule 27 of the code.

31. We cannot, therefore, concur with the reasoning and the conclusion arrived at by the High Court in the light of reasoning mentioned above.

e) In the decision cited by the learned counsel for defendant Nos.2 to 3 reported in AIR 2006 SC 1864in between State of Gujarat & Anr. Vs. Mahendra Kumar Parshottambhai Desai (D) by L.Rs.the Hon’ble Supreme Court held as follows in Para 12:

12. Mr. Sorabjee appearing on behalf of the respondents rightly submitted that Order XLI, Rule 27 of the Code of Civil Procedure cannot be invoke by a party to fill up the lacunae in his case. The state found it self in a dilemma when confronted with two sets of documents conflicting with each other. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the State or that such evidence was not within it knowledge. In fact no ground what so ever was ade out for adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the state, Since the evidence on record did not support the case of the appellants/state. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the applications filed by the state for adducing

additional evidence at the stage of appeal which was intended only to fill up the

lacunae in its case.

In the suit the following issues were framed:-

1.Whether the plaintiff proves that the suit land is of their ownership?

2.Whether the plaintiff proves that the suit land admeasuring 53 vighas 17 vasas has been acquired during the time of erst while Baroda State and possession thereof ws handed over to Fatehsinh Regiment?

3.Whether the plaintiff proves that the plaintiff is having legal possession of the disputed land by way of ownership right thereof?

4.Whether the plaintiff proves that the order dated 29.11.1991 passed by the Gujarat Revenue Tribunal is illegal, without Jurisdiction and, therefore, null and void?

5.Whether the defendant proves that out of 138 Vighas and 19 Vasas of land, the erst while Baroda State had acquired 85 Vighas and 01 Vasa of land and remaining 53 Vighas and 18 vasas of land was in possession of the defendant as stated by the defendant in para 5-3 of his reply?

6.Whether the defendant proves that survey No.371 consists of 25 Vighas 12 Vasas of land and Survey No.372 consists of 28 Vighas and 6 Vasas of land as stated in para 5(3) of the written reply of the defendant?

7.Whether te defendant proves that the suit of the plaintiff for decision on the ownership of the suit property in favour of the plaintiff, is barred by period of 42 limitation? And further whether the same is without jurisdiction with respect to the order passed by the Revenue Tribunal?

f) In the decision cited by the learned counsel for defendant Nos.2 to 3 reported in 1998(1) ALT 271in between Pothula Rama Rathnamma & others Vs Gorle Lavanyavathithe Hon’ble High Court held as follows in Para 10: In para 11 of its Judgment, the first appellate Court has written that during the pendency of the appeal, the respondent had filed I.A.44/1986 to receive additional document under Order 41 Rule 27 of the Code of Civil Procedure which documents is the certified copy of number II account in respect of Survey No.196/2 Fasli 1383 and 1390 and this documents being the certified copy of the account number II issued by the revenue authorities cannot be objected to be received on record. It also found that this document would help to come to a right conclusion regarding possession and enjoyment of the suit land. It is seen that no opportunity was given to the appellants to contest the application I.A.44/1986 and the appellate court has not given any valid reason for taking the document on record. Only because the document is a certified copy of account No.II issued by the revenue authorities, it cannot be accepted as additional documentary evidence. Under order 41 Rule 27, production of additional evidence, whether oral or documentary, is permitted only where 1) the trial court had refuse to admit the evidence which it ought to have admitted; or (2) evidence was not available to the party notwithstanding the exercise of due diligence; or (3) the appellate court requires the additional evidence so as to enable it to pronounce judgment as noted above, the first appellate court has not assigned any acceptable reason for taking the documentary evidence on record. On the authority of Natha Singh and other (1 supra), I hold that the first appellate court has not exercised its jurisdiction properly and the order appears to be an arbitrary one and, therefore, the document, Ex.A.6 is exclude from being considered.

g) In the decision reported in AIR 1987 S.C.294between in shivajirao Patil v. Mahesh Madhav , the Hon’ble Supreme Court held that - “The basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. Secondly, the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence. Thirdly, that additional evidence was relevant for the determination of the issue. (A) Improper refusal to admit evidence._ Where the lower court has refused to admit evidence which was tendered and which ought to have been admitted, the appellate court may admit such evidence at the appellate stage. The expression ought to have been admitted means should be admitted in the exercise of sound discretion. The appellate court, therefore, before admitting additional evidence must be satisfied that the trial court was unjustified in refusing to admit such evidence. Thus, where the lower court has refused to take certain evidence on the ground of its late production, such rejection cannot be said to be unjustified and the appellate court should not interfere with the discretion of the lower court and admit such evidence.”

(h) Order 41 Rule 27 of C.P.C reads as follows:-

27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if—

(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be exam med.

43 (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission.

Rule 27 enumerates the circumstances in which the appellate court may admit additional evidence, whether oral or documentary, in appeal. They are as under.

1) Whether the lower court has improperly refused to admit evidence which ought to have been admitted; or

2) Where such additional evidence was not within the knowledge of the party or could not, after exercise of due diligence, be produced by him at the time when the lower court passed the decree; or

3) Where the appellate court itself requires such evidence either (a) to enable it to pronounced judgment; or (b) for any other substantial cause.

(i) As per the principles laid down in the above decisions and in the light of the contentions of learned counsel for both parties and also as per Order 41

Rule 27 of C.P.C and the circumstances enumerated in it as stated supra in the present case, it can be safely held that the documents filed along with the petition in I.A.2338/2016 since found important and relevant for deciding the issues and disputes in between the parties, in the interests of justice it can be safely held that the plaintiff is entitled for placing additional evidence as prayed in I.A.2338/2016. The defendants 2 and 3 also do not put to any inconvenience, loss or trouble due to allowing the petition in I.A.2338/2016.

Though the petitioner obtained certified copies of all these documents and not filed them in the trial Court since the petitioner is claiming that subsequent to filing of the appeal he came to know that the land of Devasthanam is in

S.Nos.13/16, 13/17 whereas his site is in S.No.13/19 and that the defendants 2 and 3 have no right in the property purchased by him covered by

S.No.13/19, the petitioner obtained certified copy of the Field Measurement

Book relating to S.No.13, it can be safely held that the petitioner is entitled for receiving of additional evidence in respect of said documents. The defendants 2 and 3 also do not put to any inconvenience, loss or trouble due to allowing the petition in I.A.2338/2016.

25. a) As per the principles laid down in the decisions reported in AIR 1973

Orissa 240 in betweenDebendranath Nandi Vs. Natha Bhuiyan; AIR 1989

Orissa 21 in between Sanku Ranga Rao Vs. Devi Prasad Sahu & another; AIR 44 1990 Orissa 32 in between Badan Prasad Jaswal Vs. Bira Khamari & another;

AIR 1976 Delhi 175 in between Harbhajan Singh Vs. Smt.Shakuntala Devi

Sharma & another; AIR 1980 Orissa 98 in betweenKalandi Swain & Others

Vs. Braja Kishore Dass & Others; Order 41 Rule 24 CPC empowers the appellate Court finally to determine the suit if the evidence upon the record is sufficient to enable the appellate Court to pronounce the Judgment. Order 41

Rule 25 CPC empowers the appellate Court when the trial Court has omitted to determine any question of fact, which is essential to the right decision of the suit upon merits to refer the same for trial to the trial Court, in the facts and circumstances of the case.

b) In the present case Order 41 Rule 27 (b) is applicable apart from the fact that Order 41 Rule 27 (aa) also applicable since the plaintiff is claiming that after filing of the appeal they came to know that the documents which are sought to be received as additional evidence is required for the purpose of deciding the dispute in the suit as property of Devasthanam is situated in

S.Nos.13/16, 13/17 whereas his site is in S.No.13/19.

26. a) In respect of appointment of commissioner, if the properties are measured by considering the documents filed along with the petition, the report of the commissioner will be helpful in order to decide the dispute about in which survey number the plaint schedule property is situated.

b) The learned counsel for plaintiff cited the decision in between Bandi

Samuel & another Vs. Medida Nageswara Rao reported in 2017 (1) ALT 493, in which the Hon’ble High Court held at Paras-18 to 22 as follows:

“18. The Supreme Court in Haryana Waqf Board , at paragraphs 4 to 8 held as under: "Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC.

19. Coming to evidentiary value of Advocate- Commissioners report: A party can countermand the evidence of Commissioners report by letting in other evidence. A Local examination by Commissioner can only report on existing facts and not how they came about, as per decision of Honble Supreme Court in Lekh Raj V. Muni Lal and others, 2001 2 SCC 762 .

20. In Bandaru Mutyalureferring to the Division Bench expression of this Court in C.Veeranna , that was placed reliance by another Single Judge Bench expression of Savitrammathat in turn placed reliance to the conclusion in saying there is no 45 principle of law or rule or provision that in a suit for bare injunction, no commissioner can be appointed to measure and demarcate the property so also even at the initial stage before commencement of trial, leave about even an ex parte advocate commissioner can be appointed as held by the Division Bench with no notice even required for such appointment, but for referring to Order XXVI Rule 18, requirement of notice only for execution of the warrant by the commissioner appointed even ex parte and thereby, all depends upon the discretion of the Court from the factual matrix of each case of any necessity to consider either on the request of plaintiff or on the request of the defendant or defendants as the case may be. In Jammi Venkatakrishna Rao Vs. J.V.H. Ravindranath, 2015 5 ALD 429 commissioner was held to be appointed to note down existing physical features which is not fishing of information. In Jajala Mariadas and Another Vs. Bodhala Aroghyam, 2016 1 ALT 134 it was observed referring to the facts therein of the suit claim relating to perpetual injunction and recovery of possession by declaration of title by removal of the so called encroachment of 91 square feet out of that B schedule property and injunction restraining interference for delivery in saying plaintiff and defendant are neighbours and defendant said to have encroached that portion of the land belonging to the plaintiff. Evidence in this regard of encroachment would only be available on the spot and no amount of oral evidence would establish the fact and for that conclusion referred the earlier expressions in relation to the nature of lis and requirement of localization of the disputed property under encroachment or otherwise, where demarcation of the disputed property is involved it is a fit case for appointment of Advocate Commissioner, as held by the Apex Court in Haryana Waqf Board , and same was followed in Smt. Donadulu Uma Deviand there is no time limit for appointment of Advocate Commissioner as even an exparte Advocate Commissioner for localization and noting of physical features can be appointed at the time of filing suit and delay in filing is otherwise not a ground to negate. It was ultimately in saying evidence to prove allegation of encroachment is of a peculiar nature which is available on the spot and if Advocate Commissioner is not appointed grave prejudice would be caused and allowed that application.

21. Here in this case on hand, for the so called construction by encroachment of the suit lane concerned, there is no material reflected from the petition, counter and order of the lower Court to show what are the measurements of the lane and by what document and what is the encroachment that is made to measure and demarcate. Thereby it requires consideration afresh by the lower Court with reference to the law laid down in the expressions .

22. Having regard to the above, the revision petition is disposed of giving liberty to the plaintiff to file fresh petition within one week from the date of receipt of this order before the lower Court and lower Court is directed therefrom to receive counter, hear and dispose of the application on own merits with reference to any material relating to the length and width of the lane and if so the extent of the alleged encroachment by the defendants for the plaintiff if able to show to consider for appointment of Advocate Commissioner for its ascertainment by measurement and demarcation and noting of physical features. Consequently, miscellaneous petitions, if any shall stand closed. No costs.”

c) The learned counsel for plaintiff cited the decision in between Saraswathi and another Vs. S.Ganapathy and another reported in AIR 2001

SC 1844, in which the Hon’ble Supreme Court held at Paras-17 to 18 as

follows:

“17. In our view, the High Court was right in coming to the conclusion that such an approach is unsustainable in law. The question before the Courts was whether or not there had been an encroachment by the 1st respondent into land purchased by the appellants. The other question was whether there was any easementary right in the appellants. It is on these questions that there had been a remand to the trial Court. The trial Court, pursuant to the remand, had appointed a Commissioner. The Commissioner has given a detailed report. It is now necessary to see this report.

18. The Commissioner, in his report, notes that the description of the property given in the sale deed of the appellants is not accurate. The Commissioner, on actual measurements, gives a positive finding to the following effect:

46 "9. As the memo of instructions given by the respondent warranted me to note the actual extent of enjoyment by the petitioners and respondents with respect of T.S. Numbers, this respondent is in possession and enjoyment of an extent of 533 sq. ft. as follows i.e. 98 sq. ft. in T.S. No. 7/228-PART; 423 sq. ft. in 7/219 PART; and 12 sq. ft. 7/232 PART. The petitioners are in possession and enjoyment of 2506 sq. ft. in T.S. 7/232 PART and an extent of 235 sq. ft. in T.S. 7/231 and an extent of 350 sq. ft. in T. S. No. 229 PART used as lane thus totally measuring an extent of 3091 sq. ft.

10. The 4th para of the memo of instructions by the respondent specifically directed me to note down whether the respondent is within the limits as per Ex. A- 1 I found that the area of enjoyment and possession of the respondents/defendants exceeds only to the tune of 21 sq. ft. and that is too on the northern side. The specific measurements and area of enjoyment by the respondent is shown in a separate diagram in the diagrams 1 to 4 may be read as part and parcel of this report."

Thus, it is to be seen that it is the appellants who are encroaching upon 350 sq. ft. in Survey No. 7/229. The 1st respondent has excess area to the extent of 12 sq. ft. in Survey No. 7/232. The Commissioner has also found that the 1st respondent has land to the extent of 21 sq. ft. over and above what he had purchased under his sale deed. Both the trial Court and the 1st appellate Court had this factual position

before them. One fails to understand the logic by which both these Courts

concluded that the encroachment was to the extent of 338 sq. ft. Both these Courts ignored the fact that the encroachment, to the extent of 338 sq. ft. could only be there provided the measurements and description given in the sale deed of the appellants were correct. As set out above, those measurements and the description are entirely incorrect. The factual position was that the appellants, who had only purchased Survey No. 7/232 was in possession not only of entire Survey No. 7/232 (less 12 sq. ft.) but was in possession (without any right) of 350 sq. ft. in Survey No. 7/229 which was purchased by 1st respondent. The appellants having only purchased Survey No. 7/232 is not entitled to more than 2481 sq. ft. The appellants are now in possession of more than what was purchased by them. The appellants were seeking to claim possession of property which they had never purchased under their sale deed. The High Court has rightly not allowed this.”

(d) As per the principles laid down in the above decisions, apart from the fact that only as P.W.1 and Executive Officer of 3rd defendant as D.W.1 are examined and there is no evidence of any independent witnesses and no amount of oral evidence would establish the localization of the schedule property about in which survey number the plaint schedule property is situated, in the facts and circumstances, in the interests of justice, the petitioner is entitled for appointment of commissioner for the purpose prayed in the petition so as to decide whether the plaintiff is encroacher and also in which survey number the plaint schedule property is situated. When there is serious dispute about whether the plaint schedule property is private property or endowments property, in the interests of justice the evidence sought to be received in respect of documents i.e. adangals and Field Measurement Book and also appointment of commissioner as prayed in I.A.Nos.2338/2016 and 2335/2016 is found absolutely necessary and they will elucidate the matter in 47 dispute. In the facts and circumstances, though the petitioner not prayed for taking assistance of surveyor, but in the interests of justice, if the assistance of the surveyor is taken by the commissioner, it will be easy for completion of the work as he will assist the commissioner in completing his work.

e) In the facts and circumstances, as the possession of the property is not in dispute as it is pleaded in the written statement that 3rd defendant was about to take possession of the plaint schedule property in O.A.222/96 U/s 84(1) of E.Act, the said R.Venkata Ramana filed Revision Petition No.1 of 2010

before the Commissioner, Endowments Department, Hyderabad U/s 92 of

E.Act with delay condonation application, but the said Revision petition was dismissed on 28.04.2010 and that the alleged title deeds dt. 24.04.1979 or 28.12.1981 or the alleged sale said to be made in favour of Gudala

Satyanarayana are not valid under law and they are not binding on the defendants 2 and 3 and that the plaintiff has no right over the plaint schedule property, in the facts and circumstances, during the pendency of the appeal, as the petitioner was granted temporary injunction as per orders in

I.A.31/2011 dt.23.9.2011, and thus, he was having injunction till the date of disposal of the suit, in the interests of justice, during the pendency of the appeal, the appellant/petitioner is entitled for temporary injunction as prayed in I.A.3151/2012.

27. a) The learned counsel for defendants 2 and 3 cited the decision in between Prem Nath Khanna and others Vs. Narinder Nath Kapoor (Dead) thr. LRs. And others reported in 2016 (3) ALD 168 (SC), in which the Hon’ble Supreme Court held at Paras-21 and 22 as follows:

“21. In addition to the abovementioned reason, the contention advanced by the learned counsel appearing on behalf of the respondents that the appellants failed to get the mutation of entries of the suit land incorporated in record shows that there was no intention on their part to act upon the contents of the two sale deeds, cannot be accepted as mere mutation of entries does not confer title upon the deceased respondent No. 1 in the immovable property. In the case of Sawarni v. Inder Kaur & Ors., 1996 AIR(SC) 2823. this Court held as under:

"7.......Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment......" 48

22. In the case of Guru Amarjit Singh v. Rattan Chand & Ors., 1994 AIR(SC)

227. this Court held that the entries in jamabandi are not proof of title in respect of an immoveable property. In the case of Jattu Ram v. Hakam Singh & Ors., 1994 AIR(SC) 1653. this Court observed that entries made by patwari in official record are only for the purpose of records and do not by itself prove the correctness of the same nor can statutory presumption be drawn on the same, particularly, in the absence of corroborative evidence. The respondent cannot claim to have acquired title over the suit property by pleading adverse possession only in the absence of the name of the appellants in the revenue records. In the case of Thakur Kishan Singh (Dead) v. Arvind Kumar, 1995 AIR(SC) 73. and P. T. Munichikkanna Reddy & Ors. v. Revamma & Ors., 2007 AIR(SC) 1753. this Court held that in cases where the possession was initially permissive, the burden lies heavily on that person alleging adverse possession to prove that the possession has become adverse. Mere possession for long time does not convert permissive possession into adverse possession.”

b) The learned counsel for defendants 2 and 3 cited the decision in between Sajana Granites, Madras and another Vs. Manduva Srinivasa Rao and others reported in 2002 (1) ALT 466 (D.B.), in which the Hon’ble High Court held at Paras-10 to 12 as follows: “10. The Supreme Court in M.P. Athanastus case (supra), M.M. Catholices v. Polo Avira case (supra) and this Court in C. Audilakshmamma case (supra) held that plaintiff in a suit for declaration of title, and for recovery of possession, can succeed only on the strength of his own title and that it is not obligatory on the defendants to plead and prove the possible defects in the plaintiffs title and so if the plaintiff fails to establish his title, even if the defendant fails to establish his own title, plaintiff must be non suited. In this case since appellants are seeking declaration of their title to the suit property they have to establish their title; and cannot expect relief on the basis of the weakness of the case of respondents 1 and 2, or on the basis that the evidence adduced by respondents 1 and 2 does not establish their title to the suit property.

11. The trial Court white answering issue No. 4, "Whether the civil Court has jurisdiction to question the patta, if any, issued under the Estates Abolition Act", relying on M. Chayanna v. K. Narayana, and A. Bodayya v. V.L. Ramaswamy. , held that civil Court has no jurisdiction to go into the decision of the Tribunal and so it need not go into the various documents filed on behalf of both parties prior to the Estates Abolition Act. Ex.A11 shows that patta under Section 15(1) dated 28-11- 1960 was given to T. Krishnaiah, Guda Chidambaraiah, Guda Rambhotlu, Subrahmanyam, Ramakrishnaiah, Lakshminarsamma and Guda Venkatramaiah. Section 15 of the Estates Abolition Act enjoins the Settlement Officer examining the nature and history of all lands, in respect of which the landholder claims a ryotwari patta under Sections 12, 13 or 14, and decide in respect of which lands the claim should be allowed. Since an appeal against the order of the Settlement Officer is provided under Sub-section (2) of Section 15 of the Estates Abolition Act, order passed by the Settlement Officer granting or refusing patta would be a matter of record. Appellants did not choose to produce the patta, allegedly granted to the predecessor in title of their vendor. They also did not take steps to summon the relevant record from the Office of the Settlement Officer to show that the Settlement Officer conducted an enquiry under Section 15 of the Estates Abolition Act. In the absence of any document to show that an enquiry was held and thereafter a patta under Section 15 of the Estates Abolition Act was issued, the inference is that patta, if any, granted was issued under only Section 11 of the Estates Abolition Act. The Supreme Court in The State of Tamilnadu v. Ramalinga, held that civil Court has jurisdiction to decide the question of title. A Division Bench of this Court speaking through Sri V. Parthasarathi, J., in Kodali Rani v. Koti Venkateshwar Rao, 1969 (2) SC 794 (AS. No. 352 of 1964 dated 12-4-1969) held that the changes that are brought about consequent on the issue of patta, leave unaffected. The core of the title and the incidents of ownership inhering in the owners prior to the date of abolition of estate. The said decision was referred to and relied by Sri B.P. Jeevan Reddi, J., in K. Ranga Reddy v. M. Venkatarami Reddi, 1980 (2) An.WR 332 and Sri M. Jagannadha Rao, J., in M. Pallamma's case (supra) for holding that civil Court has jurisdiction to go into the question of title. A Division Bench of this Court in Jaya Syamala Rao v. Sri Radhakantha Swamy, 1984 (1) ALT 286 overruled the decision in K. Ranga Reddy case (supra) relying on the decisions of the Supreme Court in Chayanna and Bodaiah cases (supra). In Nallipatta Ramakrishna Reddy v. Kasula Balaiah, 1987 (1) ALT 120, Sri M. Jagannadha Rao, 49

J., held that the decision of the Division. Bench in Ranga Reddy case (supra) must be deemed to have been impliedly overruled by the decision of the Supreme Court in Ramalinga case (supra) and so the civil Court has Jurisdiction to decide the issue of title, notwithstanding the earlier decision of the Settlement Officer granting patta under Section 11 of the Estates Abolition Act. Sri Im. Panduranga Rao, J., in Chakali Anjappa v. Betappavari Anjaneyulu, 1990 (2) An.WR 98, reviewed the case law and held that since the decision of the Supreme Court in Remalinga case (supra) was followed by a Division Bench of this Court in K.V. Krishnaiah v. M. Sidda Reddy, 1989 (1) APLJ 93 (NRC) (SA Nos.458 and 484 of 1994, dated 14-6- 1989) civil Court has jurisdiction to go into the question of title, though a patta was issued under Section 11 of Estates Abolition Act. In K.V. Krishnaiah's case (supra) speaking for a Division Bench of this Court, Sri S.S.M. Quadri, J., reviewing case law, held that in view of the decision of the Supreme Court in Ramalinga's case (supra) the view taken in K. Ranga Reddy's case (supra) is correct, and that the view taken by the Division Bench in Jaya Syamala Rao's case (supra) is not good law in view of Ramalinga's case (supra), and civil Court has jurisdiction to entertain the question of title. Sri Im. Panduranga Rao, J., in State of A.P. v. K. Veerama Reddy, 1991 (I) LS 257, referring to all the above cases held that in view of the decision of the Supreme Court in Ramalinga's case (supra) and the decision of the Division Bench of this Court in K. Krishnaiah's case (supra) civil Court has jurisdiction to decide the question of title. In view thereof the decision of the Division Bench in Kodali Rani's case (supra) stilt holds good. It is held thus in that decision.

"So far as the substantive part of the title is concerned, i.e., the common law right of ownership, the Estates Abolition Act did not and could not operate to his detriment in any manner. The common law right of ownership remained unaffected and it is only a right arising out of a particular tenure that was the subject-matter of the legislation. The right of occupancy in ryotwari as well as Zamindari areas is an ancient concept and was held to be an inviolable right. It was there even before the passing of the Estates Land Act, which, under Section 6, merely embodied the common law and was of a declaratory nature. Ownership with reference to immovable property not only be defined as the greatest possible interest in it which a mature system of law recognizes; and the incidents of ownership are, the right to possess, the right to use, the right to manage, the right to the income, the right to security, and the incident of transmissibility. All these incidents of ownership are unaffected by the change from zamindari tenure to ryotwari tenure. The changes that are brought about consequent on the issue of a patta, leave unaffected the core of the title and the incidents of ownership enumerated above. Prior to the notification of the estate, the common law right of ownership was associated with a particular form of tenure i.e., tenure under the permanent settlement. When that tenure was terminated as a result of the abolition of the estate, the State became entitled to provide a different pattern for the mutual relationship between it and the subject who was entitled to a species of ownership de hors the Estates Land Act and without reference to the provisions of that Act. It is only to regulate the new pattern of the relationship between the State and the owner in regard to the terms on which the property is to be held, that Section 11 as also some other provisions of the Act had been devised."

12. Therefore, the question as to who is the owner of the suit property has to be gone into independently, irrespective of the allegation that a patta was granted in respect of the suit property under the Estates Abolition Act. Since Ex.A11 is not the patta, which is the primary evidence, and is only an extract from the revenue register, it is secondary evidence on the issue relating to grant of patta. Since no record from the office of the Settlement Officer was summoned to show that the Settlement Officer examined the history of the suit property, and since Supreme Court in Keshavram case (supra), Jagtsingh case (supra) and M. Papaiah case (supra) held that entries in revenue records do not confer title, nor are conclusive of title, relying merely on Ex.A11 and Ex.A12 appellants cannot seek a declaration of their title to the suit property.”

c) The learned counsel for plaintiff cited the decision in between Hans Raji Vs. Yosodanand reported in AIR 1996 SC 761, in which the Hon’ble

Supreme Court held at Paras-10 to 11 as follows: “10. So far as the applicability to the proviso to Section 68 is concerned it must be noted that there was no occasion for the respondent to examine any attestion witness to the document in question as it was Sale Deed which never required any attestation and even if some "marginal" witnesses had attested the document the 50 document did not attract Section 68 of the Evidence Act which in term applies to the proof of execution of document required by law to be attested. It reads as under:

"68. Proof execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence;

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

Therefore, Section 68 would not cover such a transaction. Hence there would remain no occasion to invoke the proviso to Section 68 with a view to finding out whether the execution of such a document was specifically denied by the adverse party or not. Consequently all the main contentions canvassed before the High Court which are repealed by the High court cannot be said to be wrongly.

11. Now remains the question of additional ground which was permitted by this Court while issuing the notice in these proceedings. It is of course true that such

additional ground was permitted to be raised in support of the Special Leave

Petition from which this appeal arises. However, the said contention raises a mixed question of law and fact, namely, whether both the parties were ad idem or not and whether the appellant had put her signature on the document thinking that it is a Will and not a Sale Deed. This is a question which is linked up with the intention of the executant for which there should be pleading and evidence. On this aspect neither any pleading nor any evidence is put forward by the appellant in courts below. On the contrary, no such argument has been canvassed before the High Court or before the court of facts. So far as the judgment of the first appellate court is concerned, it has noted that the only point for determination in the appeal was as to whether the Sale Deed has been got executed by the defendant in his favour through fraud and misrepresentation as alleged by the plaintiff-appellant. Save and except this point no other point appears to have been urged before the first appellate court. Consequently on the facts as found on the record and in the light of the evidence as led by the parties the afore said contention covered by the

additional ground cannot be effectively supported or made out by learned counsel

for the appellant. Even otherwise when it has been concurrently found by all courts

below on evidence on record that the document was executed as a Sale Deed by the appellant, the aforesaid additional ground pales into insignificance. For all these reasons there is no substance in this appeal. It, therefore, fails and is dismissed. In the facts and circumstances of the case however there will be no order as to costs. Appeal dismissed.”

d) The learned counsel for plaintiff cited the decision in between

Muddasani Venkata Narasaiah (D) Th. LRs. Vs. Muddasani Sarojana reported in AIR 2016 SC 2250, in which the Hon’ble Supreme Court held at Paras-15 to 19 as follows: “[15] It is settled law that denial for want of knowledge is no denial at all. The execution of the sale deed was not specifically denied in the written statement. Once the execution of the sale deed was not disputed it was not necessary to examine Buchamma to prove it. The provisions contained in Order 8 Rule 5 require pleadings to be answered specifically in written statement. This Court in Jahuri Sah & Ors. v. Dwarika Prasad Jhunjhunwala, 1967 AIR(SC) 109 has laid down that if a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of existence of fact, not even an implied denial. Same decision has been followed by Madhya Pradesh High Court in Dhanbai D/o Late Shri Cowash v. State of M.P. & Ors, 1978 MPLJ 717. The High Court of Madhya Pradesh in Samrathmal & Anr. v. Union of India, Ministry of Railway & Ors, 1959 AIR(MP) 305 relying on P.L.N.K.L. Chettyar Firm v. Ko Lu Doke, 1934 AIR(Rang) 278 and Lakhmi Chand v. Ram Lal, 1931 AIR(All) 423, had also opined that if the defendant did not know of a fact, denial of the knowledge of a particular fact is not a denial of the fact and has not even the effect of putting the fact in issue.

51 [16] Moreover, there was no effective cross-examination made on the plaintiff's witnesses with respect to factum of execution of sale deed, PW.1 and PW-2 have not been cross examined as to factum of execution of sale deed. The cross- examination is a matter of substance not of procedure one is required to put one's own version in cross-examination of opponent. The effect of non cross-examination is that the statement of witness has not been disputed. The effect of not cross- examining the witnesses has been considered by this Court in Bhoju Mandal & Ors. v. Debnath Bhagat & Ors, 1963 AIR(SC) 1906. This Court repelled a submission on the ground that same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the court would presume that the witness account has been accepted as held in M/s. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. & Anr, 1958 AIR(P&h) 440. In Maroti Bansi Teli v. Radhabai w/o Tukaram Kunbi & Ors, 1945 AIR(Nag) 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian, 1961 AIR(Cal) 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely technical one. A Division Bench of Nagpur High Court in Kuwarlal Amritlal v. Rekhlal Koduram & Ors., 1950 AIR(Nag) 83 has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. A Division Bench of Patna High Court in Karnidan Sarda & Anr. v. Sailaja Kanta Mitra, 1940 AIR(Pat) 683 has laid down that it cannot be too strongly emphasized that the system of administration of justice allows of cross-examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first Appellate Court as to the factum of execution of the sale deed in favour of the plaintiff.

[17] It is also settled law that passing of consideration under a sale deed cannot be questioned by third party. Defendant no. 3 has not been able to establish her case that she is an adopted daughter of the deceased Yashoda and thus, she being the third party, could not have questioned the execution of the sale deed by Buchamma on the ground of passing of consideration as rightly laid down by the High Court of M.P. in Pandit Ramjilal Tiwari v. Vijai Kumar & Ors, 1970 MPLJ 50. The High Court of Patna has also held that passing of consideration can be questioned by a party or his representative in Mt. Akli v. Mt. Daho, 1928 AIR(Pat)

44. Similar is the view of the High Court of Nagpur in Maroti Bansi Teli . Thus, the High Court has erred in law on this ground also in dismissing the suit.

[18] Coming to the question whether the plaintiff was placed in possession by Buchamma, in our opinion, it is apparent that Yashoda was enjoying the property in her lifetime, though it appears that defendant no. 3 was residing with Yashoda, but she has not claimed any derogatory title to Yashoda nor has claimed adverse possession. Her claim of an adopted daughter of Yashoda has not been found established. The entry of possession in some revenue records simplicitor does not confer any right to defendant no. 3 to retain the possession of the property. The property on the death of Yashoda had been passed on to Buchamma being class IInd heir, as such she had the right to sell the property to plaintiff. Even if Buchamma had not placed plaintiff in possession of property on strength of his title conferred by way of sale deed in question he had right to recover possession. The first appellate Court was thus right in decreeing the suit. The High Court has erred in allowing appeal. [19] In the circumstances, appeal is allowed, the impugned judgment and order passed by the High Court dismissing the suit is set aside and the judgment and decree passed by the first Appellate Court is restored. The parties to bear their own costs.”

e) The learned counsel for plaintiff cited the decision in between Lakhi

Baruahand others Vs. Padma Kanta Kalita and others reported in AIR 1996 SC 1253, in which the Hon’ble Supreme Court held at Para-10 as follows: “10. Mr. Goswami has submitted that when the suit was filed in 1981 the document of sale executed by plaintiff No. 1 in favour of Holiram in 1950, was more than 30 years old. Presumption of valid execution of such old document arising 52 under Section 90 of the Evidence Act was in favour of the defendants. Hence, the contention of the plaintiffs that no such deed had been executed by the plaintiff No. 1 could be accepted. The trial Court had rightly held that it must be presumed that the deed of sale had been executed by the plaintiff No. 1. Once such execution by the plaintiff No. 1 is accepted, it must be held that plaintiff No. 1 was required to get such deed executed by him to be avoided by filing a suit within the period of limitation. Mr Goswami has submitted that the said deed of sale was a registered document and certified copy of the same was filed in the suit. He has submitted that the High Court has erred in not giving the presumption flowing from Section 90 of the Evidence Act only because certified copy was filed. He has, therefore, submitted that gross injustice has been meted out to the appellants and the appeal should therefore be allowed by setting aside the impugned judgment and decree and dismissing the suit filed by the plaintiffs.”

f) The learned counsel for plaintiff cited the decision in between K.Venkat Reddy, Appellant Vs. Kunuthuru Akkamma, Respondent reported in AIR 1996 SC 1253, in which the Hon’ble Supreme Court held at Para-15 to 18 as follows:

“15. To avoid repetition of the pleadings and the contentions it would be pro per to consider the issues straightaway. The plaintiff relied upon Ex.A-1 relinquishment deed dated 25-7-1939. Admittedly, the plaintiff produced the said document into the Court and her custody can be considered as proper custody, as the said document was executed in favour of her husband and after his death she is the natural custodian of the said document. Ex.A-1 is the registered relinquishment deed executed by the defendant father Sadasiva Reddy, who had relinquished his entire interest in the joint family property, without showing any schedule or details for a consideration of Rs.200/-. As per Section 90 of the Evidence Act where any document of 30 years old is produced from any custody, which the Court considers to be proper, the Court may presume the signature and every other part of such document, which purports to be in the handwriting of particular person is in that person's handwriting and in the case of a document executed or attested that it was duly executed and attested by a person by whom ' it purports to be executed and attested. As the document in question is a registered document, the presumption contemplated under Section 90 of the Evidence Act would readily be applied since the plaintiff's custody was considered as proper custody. However, the contention of the defendant is that though the execution of the document can be presumed to have been proved, but the contents of the document are required to be proved. As none connected with the document were examined, the said document is liable to be rejected.

16. In support of his contention the learned Counsel relied upon a decision In Khetra Mohan v. Bhairab Chandra (supra), where a Division Bench of the Karnataka High Court held that the person producing a document under Section 90 is relieved of the necessity of proving that it was executed by the person who purported to be the executant; provided that it satisfies the other conditions, namely, it is 30 years old and produced from proper custody. But that it not the same as saying that the Court shall presume the correctness or genuineness of every statement appearing in the document.

To the same effect is the decision of the Division Bench of Bombay High Court in Chandulal v. Bai Kashi (supra), where it was held Section 90 of the Evidence Act only provides that documents more than 30 years old coming from proper custody prove themselves, but it does not involve any presumption that the contents of the documents are true.

To the same effect is the decision of a Single Judge of Calcutta High Court in Bhagirathmal Kanodia v. Bibhuti Bhusan (supra) where it was held that the presumption referred to in Section 90 is of a limited character and applies only to the signature or handwriting. Where, however, there are no names of executant, scribe, or witness, the section cannot avail to prove the document, merely because it happens to be more than 30 yeas old or is produced from custody, Which the Court may consider proper.

In Gangamma v. Shivalingaiah (supra), the Apex Court while considering the effect of Section 90 of the Evidence Act with reference to the old documents observed:

A bare perusal of the aforementioned provision would clearly go to show that in terms thereof merely a presumption is raised to the effect that signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in case a document is executed or attested, the same was executed and attested by the persons by whom it purports to be executed and attested.

Section 90 of the Indian Evidence Act nowhere provides that in terms thereof the authenticity of the recitals contained in any document is presumed to be correct. The High Court, therefore, committed a manifest error of law in interpreting the provision of Section 90 of the Indian Evidence Act and, thus, fell into an error in formulating the substantial question of law. As the purported substantial question of law was formulated on a wrong reading of Section 90 of the Indian Evidence Act, the impugned judgment cannot be sustained. We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, in other words, 'does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.

In Ghurahu v. Sheo Ratan (supra) a learned Single Judge of the Allahabad High Court while considering the presumption under Section 90 of the Evidence Act held that the extent of presummion is laid down in the section itself. It cannot be stretched beyond it. If a document is 20 years old (as per State amendment) and the Court is satisfied of its proper custody, it may be presumed that signature and any other part of document which purports to be in handwriting of any particular person is in that person's handwriting, that the document was executed by the person by whom it purports to have been executed and that the document was attested by the person by whom it purports to have been attested. In fact Section 90 dispenses with proof of document as required in Sections 67 and 68 and what is required to be done is deemed to have been done by operation of law. But, the proof of signature or handwriting does not establish that whatever is stated in document is also correct. That has to be proved not only by production of document but by proving its contents as well.

In Bai Sakinabai v. Gulam Rasul (supra) a learned Single Judge of the Gujarat High Court had an occasion to consider similar issue that arises in the present appeal, and in fact, considered how the recitals of an old document of more than 30 years are to be dealt with. In that case, the defendants relied upon Ex.39, which is stated to be a statement made by the plaintiff's predecessor on 29-10- 1930 before the City Survey Officer. The lower appellate Court though held that by virtue of Section 90 of the Evidence Act, the said document is presumed to have been executed by the persons, who are stated to have been executed, but the contents were not proved. Therefore, the contention of the defendants was negatived. The learned Single Judge while considering the said issue as to how the recitals of such an old document could be proved, considered the same and concluded as under :

...It is true that merely because under Section 90 of the Evidence Act the documents are presumed to be duly executed if they are more than 30 years old, there is no presumption about the contents of these documents being true, but in the present case once the execution of the document is presumed, it will show that the plaintiffs predecessor-in-title Umar Mastu who was the signatory to the document had executed the same. Once that is established by Section 90 of the Evidence Act, it would amount to an admission on the part of the executant i.e., plaintiff's predecessor-in-title Umar Mastu about the truth of the statements mentioned therein. This is not a case, in which a third party not signatory to the document is coming forward to show that the recitals contained in the document do not reflect the true facts but here is a case where the very signatory to the document is being foisted with a clear admission on his part of the contents of the document executed by him years back and the said admission is pressed in service against his successor-in-interest. Consequently the recitals in Ex.39 can go in as admission on the part of its executant i.e., predecessor-in-title of the plaintiff in view of the combined effect of Sections 17, 18(2) and 21 of the Indian Evidence Act, 1872. Section 17 of the Evidence Act provides that an admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned. Section 18 follows Section 17 and it also 54 postulates statements made by persons from whom the parties to suit have derived their interest in the subject-matter of the suit provided they are being made during the continuance of the interest of the makers of these statements in the subject- matter of the suit. It is clear that the present plaintiff who derives his interest through his father in the subject-matter of the suit can be foisted with the burden of the admission qua the suit property which his father made years back in 1930 by Ex.39 and when he made that statement Ex.39 his interest in the suit property did continue. The recitals in Ex.39 can also go in evidence under the provisions of Section 32(2) of the Evidence Act, as it is a statement made against the proprietary interest of a person who is now dead. So far as the proof of such admissions contained in the statement Ex.39 is concerned it has been now well settled by the decision of the Supreme Court in Vallabhadas v. Assistant Collector of Customs AIR 1965 SC 481, that once the statements are proved to be signed by persons concerned, they by themselves must be held to prove the admissions contained in those statements signed by the persons concerned. It was not necessary to examine any one else in proof of these statements. In the aforesaid case before the Supireme Court it was argued that certain statements were signed by the accused and their lawyers. The contention, on behalf of the accused before the Supreme Court was that without examining the lawyers who were cosignatories of the statements, the statements and the admissions contained in these statements could not have gone in evidence. The Supreme Court held that once the signature of the appellant below the statement is proved or admitted, the admissions contained in this statement were also necessarily held to be proved and there was no necessity to examine the lawyer who had also signed that statement. In view of this legal position, it cannot be held that the recitals in Ex.39 were not legally proved, consequently the finding of the learned Appellate Judge even on this aspect must be reversed and it must be held that the recitals in Ex.39 were legally proved on the record of the case.

17. The learned Counsel for the respondent, on the other hand, relied upon a Division Bench decision of the Madras High Court in Vaidyanathaswamyiyer v. Natesa Malavaravan (supra). In that case, the Division Bench of Madras High Court while applying the provisions of Section 90 of the Evidence Act observed that - "The presumption under Section 90, as to documents over thirty years old, has to be made with some care. In the case of registered documents such a presumption is very readily raised; and in the case of other documents, unless by reason of their appearance or by reason of internal evidence there are some cogent considerations which recommend them to the favour of the Court, the Court is not bound to raise such a presumption usually." In Bhagwati Prasad v. Musri Lal (supra), a Division Bench of the Allahabad High Court while considering the treatment to be given to the recitals in the old document relied upon the following observations of the Privy Council in 1916 PC 110 :

If the deeds are challenged at the time or near the date of their execution, so that independent evidence would be available, the recitals would deserve but slight consideration, and certainly should not be accepted as proof of the facts. But as time goes by, and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case, assumes greater importance, and cannot lightly be set aside. It may be sufficient evidence to support the deed.

In Ram Baran v. Bahadur Khan (supra) a learned Single Judge of Allahabad High Court while considering the issue as to the proof of genuineness of old documents observed -

In order to decide the genuineness of old documents the important consideration should be whether they were acted upon or not or whether they were supported by possession or not and too much importance cannot be attached to resemblance of signatures or to the opinion of experts about them.

In Venkata Subba Rao v. G. Subba Rao (supra), a Division Bench of this Court while considering the recitals contained in an old document of family arrangement held relying upon Section 114 of the Evidence Act that the presumption which exists with regard to the recitals in ancient documents must therefore, prevail as it would be difficult to prove such recitals in ancient documents.

In Lakhi Baruah v. Padma Kanta Kalita (supra), the Apex Court while considering the provisions of Section 90 observed as under :--

Section 90 of the Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the document in question is produced from proper custody. It is, however, the discretion of the Court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.

18. On consideration of the above decisions relied upon by the rival parties, it is clear that though the presumption contemplated under Section 90 of the Evidence Act is confined only as to the execution of the document, but in the light of the observation made by a learned Single Judge of the Gujarat High Court in Bai Sakinabai v. Gulam Rasul (supra), who in turn relied upon the decision of the Supreme Court in Vallabhadas v. Assistant Collector of Customs AIR 1965 SC 481, and also a decision of the Privy Council relied upon a Division Bench in Bhagwati Prasad v. Musri Lal (supra), it is clear that the presumption as to the genuineness of the contents also can be extended even in the absence of any evidence in the form of oral evidence by examining the persons connected with the said transaction or document. In fact, as per the observations of the Privy Council, the recital consistent with probabilities and circumstances of the case assumes greater importance, and therefore, the recitals of the document have to be examined in the light of the probabilities of the case, and the other circumstances and the material available.”

(g) The principles laid down in the above decisions are not related to the disputes or points involved in I.As.3151/2012, 2335/2016 and 2338/2016.

Hence, in those facts and circumstances, the principles laid down in the above decisions are not considered for deciding the disputes on those applications as they relate to the disputes relating to Exs.A-1 and A-2 and entries in revenue records.

28. Hence, in the facts and circumstances, it can be safely held that the plaintiff is entitled for allowing to place additional evidence as prayed in

I.A.2338/2016. The petitioner is also entitled for appointment of an advocate commissioner as prayed in I.A.2335/2016 to measure the properties as per the adangals and Field Measurement Book by taking assistance of the

Surveyor. The petitioner is also entitled for temporary injunction as prayed in

I.A.3151/2012 pending disposal of the appeal. Accordingly, the point Nos.6 to 8 are answered. In view of answers to Point Nos.6 to 8, the other point Nos.1 to 5 and 9 are not answered.

29. POINT No.10 : In the result, the petition in I.A.2338/2016 is allowed granting leave to receive the documents i.e. certified copies of adangals and

Field Measurement Book and allowed the petitioner to place additional evidence about these documents by condoning the delay in filing those documents. In view of that, the appellant to place additional evidence in respect of certified copies of adangals and Field Measurement Book. Hence, the appeal is reopened to place additional evidence. The plaintiff to take steps to place additional evidence in respect of I.A.2338/2016. The petition in

I.A.2335/2016 is allowed and Sri K.Seetharamacharyulu, Advocate, Kakinada is appointed as advocate commissioner to measure the properties as per the adangals and Field Measurement Book by taking assistance of the Surveyor.

The fee of the advocate commissioner is fixed at Rs.3,000/- and in the facts and circumstances and in view of urgency, it directly payable by the plaintiff.

The petitioner to bear the expenses of surveyor. The petition in I.A.3151/2012 is allowed granting temporary injunction restraining the respondents from in any way interfering with petitioner’s peaceful possession and enjoyment of the petition schedule property pending disposal of the appeal.

Dictated to the Stenographer Grade-II, transcribed by him, corrected

and pronounced by me in the open court this the 26 th day of February, 2018.

III ADDL. DISTRICT JUDGE,

KAKINADA.

No oral or documentary evidence is adduced on either side.

III A.D.J.

FAIR COPY OF ORDER IN

A.S.205/12, DT.26.02.2018.

OS/100152/2013 Convicted

Prathipati Srihari vs Naripalli Siva Rama Krishna

09 Feb 2018

IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE

EAST GODAVARI AT KAKINADA

Present: SRI N.MALYADRI III Additional District Judge

Friday, the 9th Day of February, 2018

O.S.No.152 of 2013

Between:

Prathipati Srihari ... Plaintiff.

AND

Nanipalli Siva Rama Krishna ... Defendant.

This suit coming on 22.8.2017 for final hearing before me in the presence of Sri K.Venkateswara Rao, Advocate for the Plaintiff and of Sri

N.R.R.Mohan Rao, Advocate for Defendant and the matter having stood over for consideration, this Court delivered the following:-

J U D G M E N T

This suit is filed to pass a decree in favour of the plaintiff for the suit amount of Rs.17,28,262/- by awarding subsequent interest at contract @ 24% p.a. yearly compoundable from the date of suit i.e., 22.07.2013 till realization and award costs and such other reliefs.

2. For the sake of brevity and convenience, The Code of Civil Procedure, 1908, The Indian Evidence, 1872 and The Negotiable Instruments Act, 1881herein after are referred as C.P.C, I.E.Act and N.I.Act.

3. The brief and relevant facts pleaded in the plaint presented under

Section 26 and Order VII Rule 1 of C.P.C are as follows:

a) The defendant is carrying construction of apartments at Kakinada.

The defendant for the purpose of his necessities i.e. for business purpose borrowed a sum of Rs.10,00,000/- from the plaintiff on 15.01.2011 agreeing to repay the same with interest at 24% yearly compound on demand to the plaintiff or his order and executed a demand promissory note in favour of the plaintiff at Kakinada.

b) The defendant in spite of repeated demands made by the plaintiff towards part satisfaction of the above debt issue a cheque for a sum of

Rs.8,00,000/- bearing No.031853 dated 25.06.2013 drawn on ICICI, Bank,

Ramachandrapuram Branch in favour of the plaintiff. The plaintiff through his banker i.e., State Bank of Hyderabad, Main Branch, Kakinada has presented the said cheque on 26.06.2013 and the same is returned with an endorsement “funds insufficient” along with a memo dated 27.06.2013. Thus the defendant committed an offence punishable under section 138 of N.I.Act, for which the plaintiff is taking a separate action.

c) The plaintiff got issued registered notices on 04.07.2013 to the defendant demanding the defendant to repay the above debt and also a separate notice under section 138 of N.I.Act. The defendant intentionally got returned the said notices. In spite of the repeated demands and notice, the defendant filed to pay the amount. Hence the suit.

d) The defendant is a business man and not an agriculturist and therefore he is not entitled to the benefits of Act 4 of 1938 or Act 7 of 1977, which is subsequently amended. Hence the suit may be decreed with costs as prayed for.

4. The defendant filed written statement under Order 8 Rule 1 of C.P.C.

and the brief and relevant facts pleaded in it are as follows:

a) The plaint filed by the plaintiff is neither just nor maintainable under law and the material allegations made in the plaint are not correctly stated.

The plaintiff suppressed several material facts in the plaint and mislead the court by making several false contentions. The plaintiff is put to strict proof of the same.

b) It is true that the defendant is doing business on the construction of flats. But the defendant is not doing the said business on his own but is running a partnership firm under the name and style of M/s P & N Associates,

Kakinada which is Regd. Partnership firm No.40/2009 registered under 3

Registrar of Firms, Kakinada dt.24.02.2009. The defendant is doing business with his partner Sri Pathuri Satyanarayana Murthy of Velangi and both of them executed Memorandum of Partnership Deed dt.16.02.2009 with main course of business is to purchase sites, act as property Developers and obtain permissions from necessary departments for making construction of apartments.

c) All the allegations in the plaint are specifically pleaded as absolutely false and baseless.

d) The defendant never received any suit notice demanding the payment of the alleged suit debt, or the alleged notice under Sec.138 of

Negotiable Instruments Act issued by the plaintiff till date, though there is no change in the address of the defendant. The permanent abode of defendant is at Yerupalli village, Ramachandrapuram Mandal and the allegation that the defendant failed to receive the notices do not arise. The defendant never borrowed any such huge amount from the plaintiff for the purpose of the

Business. Except the construction business, the defendant is not doing any other business. Even if such amount is raised, the amount is to be raised by both the partners to invest the same in the Business. Hence the question of raising the amount of alleged Rs.10,00,000/- does not arose. The promissory note is a fabricated one with the active connivance of the plaintiff and the other partner, Pathuri Satyanaryana Murthy. The plaintiff is having close acquaintance with the said Pathuri Satyanaryana Murthy for the last 10 years in the business. Pathuri Satyanaryaana Murthy and the plaintiff are usually do the money lending business. When the defendant and the said Pathuri

Satyanarayana Murthy jointly did partnership business, some disputes arose in the process of sharing profits and loss amounts in the partnership business.

e) At present the defendant and Pathuri Satyanarayana Murthy jointly in the name of the Firm, purchased site property situated at Sarpavaram from one Duvvuri Ramachandra Rao, Kakinada for development under Regd.

Possessory Agreement of Sale Cum General Power of Attorney Deed

Dt.28.032009 bearing Doc.No.758/2009 registered in the office of Sub

Registry, Sarparavaram. The Firm obtained approved plan and other proceedings in the said site, and making constructions and work is under progress. Both the partners invested the amounts on the construction of the said flats. Some cheques are signed by defendant for the purpose of running course of business and kept in the office premises. At the same time, the partner Pathuri Satyanarayana Murthy disputed with the defendant in some payments terms and got colluded with the plaintiff, and delivered some important papers like, blank signed promissory notes, and cheques situated in the site office. The allegations that the defendant issued cheque dt.25.06.2013 payable at ICICI Bank, Ramachandrapuram for Rs.8,00,000/- and that the same is bounced with a memo dt.26.06.2013 by the banker for want of insufficient funds is absolutely false and baseless. That the account is in the name of defendant opened 03.05.2007 and became dormant account by 31.03.2008 since it is not operated. Hence the question of issuing cheque on the ICICI Bank by the defendant in favour of plaintiff on 25.06.2013 and it is being bounced for insufficient funds is a fabricated story and baseless. As per the records, the Bank authorities may issue memo that the account is

Dormant since 2008 instead of insufficient funds. The defendant did not receive any notice in the alleged C.C. proceedings till today and the same is being managed by the plaintiff to obtain N.B.W. against the defendant intentionally. The Firm is having another account in Syndicate Bank, Kakinada and Ramachandrapuram which is a current account and is in operative mode till today for the purpose of the payments to the labour etc.,

f) No cause of action for the suit. The same is invented for the purpose of the suit. The alleged notice dt. 04.07.2013 is not served on the defendant at any point of time. The scribe has not filled the promissory note in the presence of the defendant nor the attestors present at the time of transaction.

The attestors are the henchmen of plaintiff and Pathuri Satyanarayana Murthy and no consideration is passed under the promissory note to the defendant on the alleged date 15.01.2011 from the plaintiff and it is prepared for the purpose of the suit. The plaintiff is not entitled to claim any compound interest on the pronote debts, since the promissory note is fabricated for the purpose of the suit and that there is no alleged contract for payment of compound interest payable in favour of plaintiff. The other allegations not expressly traversed in the written statement are all specifically denied. There are no merits in the suit and the same is liable to be dismissed with costs.

5. Basing on the above pleadings, the following issues are settled for trial:

1)Whether the suit pronote is true, valid and binding on the defendant?

2) Whether the plaintiff is entitled for recover the suit claim along with subsequent interest from the defendant?

3) To what relief?

6. During trial, the plaintiff examined himself as P.W.1 and attestor of suit pronote and scribe of pronote as P.Ws.2 and 3 and got marked Exs.A-1 to A-3.

The defendant examined himself as D.W.1 and got marked Ex.B-1.

7. a) The learned counsel for the plaintiff submits written and oral arguments and also reply written arguments to the arguments submitted by the defendant in his written arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement of defendant referred supra.

b) The learned counsel for the plaintiff submits that the evidence of plaintiff as P.W.1 and attestor and scribe as P.Ws 2 and 3 coupled with the contents in Ex.A1 to A3 and admissions of D.W.1 in his cross examination clearly proved that the plaintiff has discharged the initial burden of proving the execution of Ex.A1 pronote by the defendant and as such entitled for drawing presumption under section 118 of N.I.Act.

c) The learned counsel for the plaintiff submits that contrary to the pleadings in the written statement of defendant that the partner of defendant namely Pathuri Satyanarayana Murthy colluded with plaintiff and delivered some papers including blank signed promissory note and that suit promissory note is fabricated by the plaintiff for the purpose of the suit, the defendant admitted in his cross examination that Ex.A1 pronote is also one of the blank signed promissory note which he kept in the office and Pathuri Satyanarayana

Murthy colluded and gave the same to plaintiff, and further he admitted that he borrowed Rs.10,00,000/- from P.W.1 on 15.01.2011 but he stated that he paid the money with interest in the year 2011 itself on the date, which the cheque given by him bears.

d) The learned counsel for the plaintiff submits that defendant denies the signature and thumb impression shown to him in Ex.A-1 by claiming that they are not of him but he did not take steps for appointment of expert to give his opinion about the signature and thumb impression in Ex.A-1.

e) The learned counsel for the plaintiff submits that D.W.1 admitted that he has no disputes with attestors and scribe of Ex.A.1 and further he admitted that there are no disputes between him and Pathuri Satyanarayana

Murthy by the date of retirement from partnership with him and as such the defendant miserably failed to place any evidence to rebut the presumption U/s 118 of N.I.Act.

f) The learned counsel for the plaintiff submits in respect of bouncing of cheque a separate case in C.C.No.428/2014 on the file of J.F.C.M.Court,

Ramachandrapuram is filed and in view of that mis-description of particulars about the cheque number and date in Ex.B.1 and also in the evidence of

P.Ws.1 and 2, no way rebut the presumptions under Section 118 of N.I.Act.

g) The learned counsel for the plaintiff submits that Chettipothula Surya

Prakasarao is also called as Chitikina Surya Rao since it is his alias and calling name and due to that in the chief examination of P.Ws 1 and 2 at one place it 7 is mentioned that Chitikina Suryarao was also present, at the time of execution and at other place it is mentioned that Chettipothula Surya

Prakasarao attestor of Ex.A-1 pronote and as such due to said facts the defendant cannot claim that the evidence of P.Ws.1 and 2 is not believable and Chitikina Suryarao and Chettipothula Surya Prakasa Rao are different persons.

h) The learned counsel for the plaintiff submits that there is no pleading in the written statement that plaintiff has no capacity to lend a sum of

Rs.10,00,000/- on the date of Ex.A-1 and further the defendant as D.W.1 admitted in the cross examination that he borrowed Rs.10,00,000/- on the date of Ex.A-1 but he is claiming that he repaid that amount and as such the defendant cannot claim at this stage that the plaintiff has no capacity to lend a sum of Rs.10,00,000/- on the date of Ex.A-1.

i) The learned counsel for plaintiff submits that the plaintiff has proved the suit claims and hence suit may be decreed with costs as prayed for.

8. a) The learned counsel for the defendant submitted written and oral arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement of defendant referred supra.

b) The learned counsel for the defendant submits that the case of the defendant is total denial in respect of the suit claims, and the defendant is claiming that he did not execute Ex.A1 and no consideration is pass under

Ex.A1 and due to revelry between defendant and his partner Pathuri

Satyanarayana Murthy is false suit is filed by the plaintiff by colluding with the said Pathuri Satyanarayana Murthy.

c) The learned counsel for the defendant submits that the place of transaction is not mentioned in Ex.A.1.

d) The learned counsel for the defendant submits that as per the evidence of P.W.1 at the time of execution of Ex.A.1 only P.Ws.1 to 3, defendant and Chitikina Surya Rao were present but Ex.A1 shows that one 8

Chettipothula Surya Prakasharao who is not examined is the attestor No.2 and thus there is discrepancy about the presence of parties and attestors at the time of alleged execution of Ex.A1 pronote and further the evidence of P.W.2 also shows that Chettipothula Surya Prakasharao and Nemani J.J.Ramprasad at the time of execution of pronote is doubtful.

e) The learned for the defendant submits that P.W.1 in his cross examination stated that Chitikina Surya Rao signed in Ex.A.1, as 2nd attestor and Ex.A1 was scribed in total by hand writing and as such the evidence of

P.W.2 is not believable as Ex.A1 is a printed pronote filled with blanks and it bears the signatures of attestors namely Nemani J.J.Ram Prasad and Ch.Surya

Prakasha Rao and thus as per the evidence of P.W.2, Ex.A-1 is not the ponote attested by P.W.2.

f) The learned counsel for the defendant submits that the evidence of

P.W.3 shows at the time of execution of Ex.A-1, Chettipothula Surya

Prakasarao was present and attested it and thus evidence of P.W.1 and 2 and new person Ch.Surya Prakasha Rao is introduced to the evidence of P.W.1 as being present at the time of execution of Ex.A.1, and the same is done by filing the chief affidavit of P.W.3 on 06.04.2017 after closing of the evidence of

P.W.1 on 22.3.2017, and P.W.2 on 30.03.2017, and as such the evidence of

P.W.3 is not believable.

g) The learned counsel for the defendant submits that P.Ws in his cross examination stated that nobody by name Chitikina Surya Rao was present at the time of execution of Ex.A-1 and thus plaintiff miserably failed to prove the execution of Ex.A1 by the defendant.

h) The learned counsel for the defendant submits P.W.1 did not state in his chief examination that transaction took place at Kakinada and further the chief examination is silent about where Ex.A1 was executed and consideration is paid and further P.W.1 categorically stated, he has no evidence to show that he was at Kakinada on the date of Ex.A1 and having cash of Rs.10,00,000/- 9 with him on that date and as such plaintiff failed to prove the execution of

Ex.A.1 by defendant.

i) the learned counsel for the defendant submits the evidence of P.W.1 and D.W.1 clearly prove that the defendant did not borrow Rs.10,00,000/- and executed Ex.A.1 and the signature and thumb impression in Ex.A.1 are not that of the defendant, and that P.W.1 could not say about the amount borrowed and cheque given further said amount in the transaction occurred previously and the nature of relationship between plaintiff and defendant, and defendant making payment of Rs.10,00,000/- with interest borrowed on 15.1.2011 on the date which is mentioned in the cheque of defendant bounced and returned and that as such the evidence of P.W.1 is not believable.

j) The learned counsel of the defendant submits that as per Ex.B1 the date of pronote is mentioned as 10.05.2011 but the date of Ex.A1 is 15.01.2011 and further according to P.W.1 Ex.A2 is the notice given prior to filing of the suit demanding money due but actually it is a different notice demanding cheque amount.

k) The learned counsel for the defendant submits that plaintiff did not examine the important witness Chettipothula Surya Prakasharao.

l) The learned counsel for the defendant submits that the facts elicited in the cross examination of D.W.1 clearly prove the relationship of P.W.1 with

Pathuri Satyanarayana Murthy partner of defendant and nothing contra to the case of defendant is elicited and further it proves the previous loan transactions and Ex.A.1 transaction are different and there is no connection established and further as P.Ws.1 to 3 and D.W.1 are residents of Paningapalli

Gangavaram, Kakinada and Erupali and thus, the plaintiff failed to prove the execution under Ex.A.1 on 15.01.2011.

m) The learned counsel for the defendant submits that P.W.1 admitted in the cross examination with the details of the date of cheque given by 10 defendant and when I presented it into the Bank are available in the bank account of me but not submitted the bank statement.

n) The learned counsel for the defendant submits that the evidence of

P.W.1 shows that the cheque number mentioned is different than the cheque number mentioned in Ex.A-2 and that the affidavit was given after giving evidence in C.C.No.428/2014 and the plaintiff is in the habit of giving wrong information and wrong particulars to the court whenever questioned and disputed it is a typographical mistake and the advocate is one and the same in both the cases on behalf of the plaintiff.

o) The learned counsel for the defendant submits that the cheque returned on 23.04.2011 was not denied by the plaintiff and as per his version it is relating to previous transaction and it was settled prior to Ex.A.1, but

Ex.A-1 is dated 15.01.2011 as per plaint and the pronote is dated 10.05.2011 as per complainant document list in Ex.B.1 and as such hence, the suit transaction is not in existence prior to 23.04.2011 i.e., the obtaining of cheque by the plaintiff.

p) The learned counsel for the defendant submits that the persons mentioned in Ex.A.1 are of different places and there was no possibility to unite at one place and that hence, the Ex.A-1 was not written on 15.01.2011 and it might be created prior to filing of suit notice i.e. Ex.A-2 and that Ex.A-2 is not relating to suit transaction, but a notice only under section 138 of

N.I.Act and that the suit promissory note was fabricated one for the purpose of filing of the suit only to harass the defendant and hence, the suit may be dismissed with costs.

9. ISSUES 1 AND 2 : These issues 1 and 2 are interrelated very closely to each other. Hence, in order to avoid the repetition and discussion of the evidence and for the sake of brevity and convenience they are discussed in common.

10. a) The plaintiff is claiming that the defendant is carrying construction of apartments at Kakinada and that defendant for the purpose of his necessities i.e. for business purpose borrowed a sum of Rs.10,00,000/- from the plaintiff on 15.01.2011 agreeing to repay the same with interest at 24% yearly compound on demand to the plaintiff or his order and executed a demand promissory note in favour of the plaintiff at Kakinada. He further claims that even after repeated demands the defendants did not pay the amount and issued cheque dt.26.6.2013 which is bounced as it is returned with an endorsement when presented in State Bank of Hyderabad, Main Branch,

Kakinada that funds are insufficient.

b) Whereas the defendant denies all these claims of the plaintiff and he is further claiming that he did not borrow any amount, more so huge amount as claimed by the plaintiff for the purpose of his business and the suit promissory note is fabricated one with active connivance of the plaintiff and one Pathuri Satyanarayana Murthy, partner of defendant. He further claims that he is doing business of construction of flats, but the same is not of his own business, but it is business partnership firm under the name and style of

M/s P & N Associates, Kakinada which is Regd. Partnership firm No.40/2009 registered under Registrar of Firms, Kakinada dt.24.02.2009 and he is doing business with his partner Pathuri Satyanarayana Murthy of Velangi and both of them executed Memorandum of Partnership Deed dt.16.02.2009 with main course of business is to purchase sites, act as property Developers and obtain permissions from necessary departments for making construction of apartments. He further claims that in the business of defendant with Pathuri

Satyanarayana Murthy which is done jointly some disputes arose in the process of sharing profits and loss amounts in the partnership business. He further claims that the plaintiff and said Pathuri Satyanarayana Murthy are doing money lending business and the plaintiff is having close acquaintance with said Pathuri Satyanarayana Murthy for the last 10 years. The defendant 12 is also claiming that he gave some cheques signed by him for the purpose of running course of business and kept in the office premises of joint firm of himself and Pathuri Satyanarayana Murthy. While so, the partner Pathuri

Satyanarayana Murthy disputed with the defendant in some payments terms and got colluded with the plaintiff, and delivered some important papers like, blank signed promissory notes, and cheques situated in the site office. He is also claiming that the cause of action in this suit is invented for the purpose of this suit. He further claims that the scribe has not filled the promissory note in the presence of defendant nor the attestors present at the time of transaction and the attestors are henchmen of plaintiff and Pathuri

Satyanarayana Murthy and no consideration is passed under the promissory note to the defendant on the alleged date 15.01.2011 from the plaintiff and it is prepared for the purpose of the suit and that the plaintiff is not entitled to claim any compound interest on the pronote debts, since the promissory note is fabricated for the purpose of the suit and that there is no alleged contract for payment of compound interest payable in favour of plaintiff.

c) In view of above facts and rival contentions of both parties, though the defendant is claiming that the suit promissory note is fabricated one, but specifically not denying signature in it as he claims that Pathuri Satyanarayana

Murthy partner of him in M/s P & N Associates colluded with the plaintiff and delivered important papers like blank signed pronotes and cheques kept in the site office.

11. a) The plaintiff to prove the suit claims examined himself as P.W.1 and 1st attester of suit promissory note as P.W.2 and scribe of suit promissory note as P.W.3. The defendant to disprove the suit claims examined himself as

D.W.1. P.W.1 and D.W.1 being parties to the suit deposed in their respective affidavits filed which are treated as chief examinations as per their respective pleadings, claims and contentions and cases. P.Ws.2 and 3 in their affidavits which are treated as chief examinations corroborated the evidence of P.W.1 in 13 his chief examination. P.W.1 got marked Exs.A-1 to A-3, which are promissory note dt.15.1.2011, office copy of legal notice dt.4.7.2013 and unserved postal cover. D.W.1 got marked Ex.B-1 certified copy of complaint in C.C.428/2014 on the file of V Addl. J.F.C. Magistrate’s Court, Kakinada.

b) The evidence of P.Ws.2 and 3 corroborated the evidence of P.W.1 in respect of execution of Ex.A-1 promissory note by the defendant. Nothing contra is elicited in the cross examination of them about execution of Ex.A-1.

D.W.1 in the chief examination stated that the suit promissory note is fabricated and forged one. He stated that there are two promissory notes one is dt.15.1.2011 and another is dt.10.5.2011 and since in Ex.B-1 the document is dated 10.5.2011, whereas the suit promissory note is dt.15.1.2011. But in the cross examination he stated that he did not see Ex.A-1 or it’s Photostat copy till the date of his giving evidence. He further stated that according to him Ex.A-1 pronote is one such blank pronote which he kept in the office site.

He further admitted that “I pleaded in the written statement that myself and

Pathuri Satyanarayana Murthy are partners in a firm and for the purpose of running the business I kept some cheques signed by me in the office premises and there were some disputes between me and said Pathuri Satyanarayana

Murthy in respect of terms of some payments and the said Pathuri

Satyanarayana Murthy colluded with plaintiff and delivered some important papers like blank signed promissory notes and cheques situated in the site office”. He further stated in his cross examination that “I alone borrowed

Rs.10,00,000/- from P.W.1 on 15.1.2011 and repaid the said money with interest in the year 2011 itself”. He also stated that “I have no disputes with attestors and scribe of Ex.A-1”.

c) In the light of above facts and circumstances and as nothing contra is elicited in the cross examination of P.Ws.1 to 3 in respect of execution of

Ex.A-1 pronote, it can be safely held that the plaintiff discharged the initial burden of proving execution of Ex.A-1 by defendant.

12. a) In the decision in between Rangappa Vs. Mohan, reported in 2010

Law Suit (S.C.) 277, in which the Hon’ble Supreme Court held at Para No.14 as follows:

“14. In light of these extracts, we are in agreement with the respondent- claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable bySection 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own”.

b) In a decision reported in 2014 (2) ALD (Crl.) 61 (SC) between John K.Abraham v.Simon C.Abraham and another in which the Hon’ble Supreme Court held at Para No.9 and 10 as follows:

“9. Keeping the above factors in mind, when we examine the judgment impugned in this appeal, we find that the High Court committed a serious illegality in reversing the judgment of learned Chief Judicial Magistrate. While reversing the judgment of the trial Court, what weighed with the learned Judge of the High Court was that in the 313 questioning, it was not the case of the appellant that a bank signed cheque was handed over to his son and that even in the cross-examination it was not suggest to P.W.1 that a blank cheque was issued. The High Court was also persuaded by the fact that the appellant failed to send any reply to the lawyer’s notice, issued by the respondent. Based on the above conclusions, the High Court held that the presumption under Sections 118 and 139 of the Negotiable Instruments Act could be easily drawn and that the appellant failed to rebut the said presumption. On that single factor, the learned Judge of the High Court reversed the judgment of the Trial

Judge and convicted the appellant. It has to be stated that in order to draw the

presumption under Section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true 15 and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.

10. Keeping the said statutory requirements in mind, when we examine the facts as admitted by the respondent-complainant, as rightly concluded by the learned Trial Judge, the respondent was not even aware of the date when substantial amount of Rs.1,50,000/- was advanced by him to the appellant, that he was not sure as to who wrote the cheque, that he was not even aware when exactly and where exactly the transaction took place for which the cheque came to be issued by the appellant. Apart from the said serious lacuna in the evidence of the complainant, he further admitted as PW1 by stating once in the course of the cross-examination that the cheque was in the handwriting of the accused and the very next moment taking a diametrically opposite stand that it is not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him. We find that the various defects in the evidence of respondent, as noted by the trial Court, which we have set out in paragraph 7 of the judgment, were simply brushed aside by the High Court without assigning any valid reason. Such a serious lacuna in the evidence of the complainant, which strikes at the root of a complaint under Section 138, having been noted by the learned Trial Judge, which factor was failed to be examined by the High Court while reversing the judgment of the trial Court, in our considered opinion would vitiate the ultimate conclusion reached by it. In effect, the conclusion of the learned Judge of the High Court would amount to a perverse one and, therefore, the said judgment of the High Court cannot be sustained”.

c) In another decision reported in Vijay v Laxman and another reported in 2014 (1) ALT (Crl.) 342 (SC)in which the Hon’ble Supreme Court held at Para Nos.10, 11 and 12 as follows:

“10. It is undoubtedly true that when a cheque is issued by a person who has signed on the cheque and the complainant reasonably discharges the burden that the cheque had been issued towards a lawful payment, it is for the accused to discharge the burden under Section 118 and 139 of the N.I. Act that the cheque had not been issued towards discharge of a legal debt but was issued by way of security or any other reason on account of some business transaction or was obtained unlawfully. The purpose of the N.I. Act is clearly to provide a speedy remedy to curb and to keep check on the economic offence of duping or cheating on person to whom a cheque is issued towards discharge of a debt and if the complainant reasonably discharges the burden that the payment was towards a lawful debt, it is not open for the accused/signatory of the cheque to set up a defence that although the cheque had been signed by him, which had bounced, the same would not constitute an offence.

11. However, the Negotiable Instruments Act incorporates two presumptions in this regard: one containing in Section 118 of the Act and other in Section 139 thereof. Section 118 (a) reads as under:- “118. Presumption as to negotiable instruments. – Until the contrary is proved, the following presumptions shall be made – 1 of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;”

Section 139 of the Act reads as under:- “139. Presumption in favour of holder. – It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” 16

12. While dealing with the aforesaid two presumptions, learned Judges of this Court in the matter of P.Venugopal v.Madan P.Sarathi (2) (2009) 1 SCC 492 had been pleased to hold that under Sections 139, 118 (a) and 138 of the N.I. Act existence of debt or other liabilities has to be proved in the first instance by the complainant but thereafter the burden of proving to the contrary shifts to the accused. Thus, the plea that the instrument/cheque had been obtained from its lawful owner or from any person in lawful custody thereof by means of an offence or fraud or had been obtained from the maker or acceptor thereof by means of an offence or fraud or for unlawful consideration, the burden of disproving that the holder is a holder in due course lies upon him. Hence, this Court observed therein, that indisputably, the initial burden was on the complainant but the presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. Thereafter, the presumption raised does not extend to the extent that the cheque was not issued for the discharge of any debt or liability which is not required to be proved by the complainant as this is essentially a question of fact and it is the defence which has to prove that the cheque was not issued towards discharge of a lawful debt”.

d) In the decision reported in 2015 S.A.R. (Criminal) 162 between K.Subramani Vs. K.Damodara Naidu, in which the Hon’ble Supreme Court held at Para Nos. 8 and 9 as follows:

“8. Three Judge Bench of this Court in the decision in Rangappa case (supra) laid down that the presumption mandated by Section 139 of the N.I. Act includes a presumption that there exists a legally enforceable debt or liability and that is a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. Relying on the said ratio the High Court answered the two legal issues raised by it in the impugned judgment. Though the criminal appeals were preferred against the judgment of acquittal passed in all the cases arising under Section 138 of the N.I. Act, the factual matrix and the evidence adduced were different. The High Court after answering the two legal issues did not consider the merits of each case individually and has simply remanded the matter to the trial court for fresh consideration.

9. In the present case the complainant and the accused were working as Lecturers in a Government college at the relevant time and the alleged loan of Rs.14 lakhs is claimed to have been paid by cash and it is disputed. Both of them were governed by the Government Servants’ Conduct Rules which prescribes the mode of lending and borrowing. There is nothing on record to show that the prescribed mode was followed. The source claimed by the complainant is savings from his salary and an amount of Rs.5 lakhs derived by him from sale of site No.45 belonging to him. Neither in the complaint nor in the chief-examination of the complainant, there is any averment with regard to the sale price of site No.45. The concerned sale deed was also not produced. Though the complainant was an income-tax assessee he had admitted in his evidence that he had not shown the sale of site No.45 in his income-tax return. On the contrary the complainant has admitted in his evidence that in the year 1997 he had obtained a loan of Rs.1,49,205/- from L.I.C. It is pertinent to note that the alleged loan of Rs.14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further the complainant did not produce bank statement to substantiate his claim. The trial court took into account the testimony of the wife of the complaint in another criminal case arising under Section 138 of the N.I. Act in which she has stated that the present appellant/accused had not taken any loan from her husband. On a consideration of entire oral and documentary evidence the trial court came to the conclusion that the complainant had no source of income to lend a sum of Rs.14 lakhs to the accused and he failed to prove that there is legally recoverable debt payable by the accused to him”.

e) In the decision in between K.Saravana Prabu Vs. P.Krishnakumar reported in 2017 (2) L.S. (Madras) 9, in which the Hon’ble High Court Madras held at Paras 11, 15 to 17 as follows:

“11. Since the petitioner admitted the issuance of cheque, there is a presumption under Section 139 of the Negotiable Instrument Act, that the cheque has been issued for discharging a legally enforceable debt. But, the above presumption is a rebuttable presumption and for rebutting the presumption the standard of proof is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the burden shifts on the complainant to prove that there is a legally enforceable debt. Now the question is whether the petitioner/accused has rebutted the presumption mandated under Section 139 of Negotiable Instrument with any probable defence.

15. So far as the Judgment relied upon by the learned counsel appearing for the respondent/complainant in RANGAPPA Vs. SRI MOHAN reported in 2010(11) SCC 441, the Hon'ble Supreme Court has held that the presumption mandated Section 139 of the Negotiable Instrument Act, including the existence of a legally enforceable debt or liability and further it has been held that the accused to rebut the presumption under Section 139 of the Negotiable Instrument Act, the standard of proof for doing so is that of preponderance of probabilities, the accused can raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, and the Hon'ble Supreme Court has held as follows:- “In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.”

The above judgment is only helping to the petitioner and no way helpful to the respondent case.

16. Another judgment relied on by the counsel for the respondent in VIJAY Vs. LAXMAN AND ANOTHER reported in 2013(1)MWN(Cr.) DCC 161 (SC), is relates to the presumption under Section 139 of the Negotiable Instrument Act. In the instant case, it has been held that the petitioner has rebutted the presumption by a probable defence. Hence, the above judgment also not helping the respondent. The other Judgments relied upon the learned counsel appearing for the respondent are relating to the advancement of loan amount not reflected in the income tax returns, which is not the issue in the instant case. Hence, the above judgments are not applicable to the instant case.

17. Considering the above facts and circumstances of the case, I am of the considered view that the petitioner has rebutted the presumption under Section 139 of the Negotiable Instrument Act by raising a probable defence which creates a doubt about the existence of a legally enforceable debt or liability. On the other hand, the respondent failed to prove the existence of the legally enforceable debt by acceptable evidence, both the Courts below without considering the case in a proper perspective, has convicted the petitioner. In the above circumstances, the judgment of the Courts below are liable to be set aside and the petitioner is entitled for acquittal.” 18

f) As per the principles laid down in the above decisions, in view of plaintiff proving execution of pronote, the presumption U/s 118 of N.I.Act would arise that it is supported by consideration, but the same is rebuttable.

In view of that the burden is on the defendant to place evidence to rebut the presumption U/s 118 (a) of N.I.Act that consideration under Ex.A-1 is passed.

13. a) D.W.1 stated in his cross examination that “I did not give any legal notice or filed any complaint against P.W.1 and the said Pathuri

Satyanarayana Murthy alleging that myself and Pathuri Satyanarayana Murthy are partners in a firm and for the purpose of running the business I kept some cheques signed by me in the office premises and there were some disputes between me and said Pathuri Satyanarayana Murthy in respect of terms of some payment and the said Pathuri Satyanarayana Murthy colluded with plaintiff and delivered some important papers like blank signed promissory notes and cheques situated in the site office”. He also stated that “I alone borrowed Rs.10,00,000/- from P.W.1 on 15.1.2011 and repaid the said money with interest in the year 2011 itself. I have a bounced cheque of me to prove the same. I gave a cheque for Rs.10,00,000/- towards the principal amount borrowed by me from P.W.1 on 15.1.2011 since I paid interest directly to

P.W.1. As the said cheque was bounced, P.W.1 took cash from me for a sum of Rs.10,00,000/- by handing over the bounced cheque to me. I cannot say the date on which I gave the said amount of Rs.10,00,000/- but the cheque given by me bears the date and on the said date of cheque I repaid

Rs.10,00,000/- to P.W.1. After nearly 3 months from 15.1.2011 I paid the said amount of Rs.10,00,000/- to P.W.1”. He further stated that signature and thumb impression shown to him in Ex.A-1 are not of him. He denied the suggestion and stated that “It is not true to suggest that I have not pleaded in the written statement and also deposed in my chief affidavit that I gave a cheque for Rs.10,00,000/- towards the principal amount borrowed by me from

P.W.1 on 15.1.2011 since I paid interest directly to P.W.1 and that as the said 19 cheque was bounced, P.W.1 took cash from me for a sum of Rs.10,00,000/- by handing over the bounced cheque to me and that I am deposing false”.

b) In the light of the above facts, as no documentary evidence is placed by the defendant to prove that he had given any cheque to P.W.1 and the same was returned to him in view of bouncing of it and later P.W.1 had taken cash from him for a sum of Rs.10,00,000/- and also as not even legal notice is given or complaint is filed either against P.W.1 or Pathuri Satyanarayana

Murthy, it can be safely held that defendant is not able to prove that he kept some cheques signed by him in the office premises and there were some disputes between him and said Pathuri Satyanarayana Murthy in respect of terms of some payments and the said Pathuri Satyanarayana Murthy colluded with plaintiff and delivered some important papers like blank signed promissory notes and cheques situated in the site office.

14. a) D.W.1 stated in his cross examination that “I have no dispute with attestors and scribe of Ex.A-1. If necessary I will send Ex.A-1 to an expert for giving opinion about the signature and thumb impression in it”.

b) The above facts stated by D.W.1 clearly prove the admission of

D.W.1 that defendant has no disputes with attestors and scribe of Ex.A-1 and as such as defendant did not take steps to send Ex.A-1 to expert to give opinion about signature and thumb impression in it, and also he has admitted about borrowing of Rs.10,00,000/- from P.W.1 on 15.1.2011 and the suit promissory note under Ex.A-1 is also dated 15.1.2011, it can be safely held that the defendant has not placed evidence to rebut the presumption U/s 118 of N.I.Act that consideration under Ex.A-1 of Rs.10,00,000/- is presumed to be passed.

15. a) D.W.1 stated in his cross examination that “In the year 2014 with my consent, Nanipalli Gangabhavani after paying money to Pathuri Satyanarayana

Murthy and purchasing the share of him, joined as a partner in the place of

Pathuri Satyanarayana Murthy. I and Pathuri Satyanarayana Murthy were only 20 the partners initially before Nanipalli Gangabhavani purchasing share of

Pathuri Satyanarayana Murthy. Nanipalli Siva Ramakrishna husband of Ganga

Bhavani is my friend”. He also stated that “I pleaded in the written statement that myself and Pathuri Satyanarayana Murthy are partners in a firm and for the purpose of running the business I kept some cheques signed by me in the office premises and there were some disputes between me and said Pathuri

Satyanarayana Murthy in respect of terms of some payments and the said

Pathuri Satyanarayana Murthy colluded with plaintiff and delivered some important papers like blank signed promissory notes and cheques situated in the site office”. He also stated that “There are no dues between me and

Pathuri Satyanarayana Murthy by the date of retirement from partnership with me”.

b) In respect of above facts stated by D.W.1 and also the pleadings in the written statement regarding transactions between himself and Pathuri

Satyanarayana Murthy and disputes and also Pathuri Satyanarayana Murthy colluding with the plaintiff, nothing contra is elicited in the cross examination of P.W.1 and also no suggestions even put to him. The defendant also has not placed any evidence in proof of any of his defences, more so of his having disputes with the partner Pathuri Satyanarayana Murthy in some payment terms and the said Pathuri Satyanarayana Murthy got colluded with the plaintiff, and delivered some important papers like, blank signed promissory notes, and cheques situated in the site office. The defendant also not filed any documents in proof of his opening account in his name on 3.5.2007 and the same became dormant account by 31.3.2008 since it is not operated. No valid reason is given by the defendant for not placing any evidence in proof of these defences.

16. D.W.1 stated in his cross examination that after nearly 3 months from 15.1.2011 he paid said amount of Rs.10,00,000/- to P.W.1 which is borrowed by him on 15.1.2011. He himself stated that he paid interest directly to

P.W.1. He neither filed documents to prove that any cheque given by him was 21 bounced nor he has placed any evidence prove that he paid interest directly to

P.W.1 and also on what exact date he paid that amount and also he paid

Rs.10,00,000/- by way of cash to P.W.1 towards principal after 3 months by borrowing the amount on 15.1.2011.

17. a) D.W.1 stated in his cross examination that “It is true in Ex.B-1, it is alleged that the pronote dated 15.1.2011. denied the suggestion and stated that “It is not true to suggest that due to typographical mistake in Ex.B-1 in the relevant column about list of document, the date of pronote is wrongly mentioned as 10.5.2011 and taking advantage of the same, I am deposing falsely”. He further stated that “It is true that copy of Ex.A-1 is filed along with Ex.B-1 complaint. P.W.1 and Pathuri Satyanarayana Murthy jointly did business of construction of buildings but I cannot say the details of the buildings constructed by them. He further denied the suggestion and stated that “It is not true to suggest that P.W.1 and Pathuri Satyanarayana Murthy never jointly did business of construction of buildings and that I am deposing false. It is not true to suggest that I am deposing falsely to avoid liability for suit reliefs and plaintiff is entitled for suit reliefs”. He further stated that “I pleaded in the written statement and also deposed in my chief affidavit that I gave a cheque for Rs.10,00,000/- towards the principal amount borrowed by me from P.W.1 on 15.1.2011 since I paid interest directly to P.W.1 and that as the said cheque was bounced, P.W.1 took cash from me for a sum of

Rs.10,00,000/- by handing over the bounced cheque to me”. He denied the suggestion and stated that “It is not true to suggest that I have not pleaded in the written statement and also deposed in my chief affidavit that I gave a cheque for Rs.10,00,000/- towards the principal amount borrowed by me from

P.W.1 on 15.1.2011 since I paid interest directly to P.W.1 and that as the said cheque was bounced, P.W.1 took cash from me for a sum of Rs.10,00,000/- by handing over the bounced cheque to me and that I am deposing falsely”.

b) The above facts shows that D.W.1 is admitting that copy of Ex.A-1 is filed along with Ex.B-1 complaint but he is denying the suggestion that due to 22 typographical mistake in Ex.B-1 in the relevant column in the list of document the date of pronote is wrongly mentioned as 10.5.2011 and taking advantage of the same, he is deposing falsely. When admittedly copy of Ex.A-1 is filed along with Ex.B-1 complaint and also in Ex.B-1 it is alleged that pronote is dt.15.1.2011, merely because in the list of documents the date of pronote is wrongly mentioned as 10.5.2011, the defendant who is admitting of borrowing of Rs.10,00,000/- on 15.1.2011 but failed to prove not only repayment either

principal or interest and his giving any cheque towards the same is not

entitled to take advantage of the typographical mistake in Ex.B-1 in order to prove that there is some other pronote dt.10.5.2011 merely because in the list of documents of Ex.B-1 it is mentioned that date of pronote is 10.5.2011. In

Ex.B-1 in the list of documents the date is mentioned as 10.5.2011 but Ex.A-1 is dt.15.1.2011. In Ex.A-1 the place of transaction is not mentioned, but it is clearly mentioned that Ex.A-1 was executed on 15.1.2011 and consideration of Rs.10,00,000/- was paid.

18. a) The chief examination of P.W.1 was filed on 2.3.2017 and cross examination is done on 22.3.2017. P.W.2 is examined on 30.3.2017 and

P.W.3 is examined on 6.4.2017. Ex.A-1 contains thumb impression and afterwards revenue stamp is affixed on it and the signature is written in the name of defendant.

b) P.W.1 stated in his cross examination that in respect of previous transactions between himself and defendant about defendant borrowing money and repaying the same, the defendant has given cheque to him which he has presented in the bank and later he repaid the amount borrowed from him. He also stated that he does not remember whether the said cheque was given by defendant subsequent to date of Ex.A-1. He further stated that the details of date of cheque given by defendant, when he presented it into the bank are available in the bank account of him. He also stated that he did not file any case against the defendant basing on said cheque and enter into any compromise in that case with the defendant.

c) Basing on the above facts elicited in the cross examination of P.W.1 it cannot be held that the evidence of P.W.1 proved that bounced cheque was handed over to him in respect of Ex.A-1 pronote transaction dt.15.1.2011, and he paid principal amount after 3 months of that date and interest directly to plaintiff and the defence of defendant is not believable. Further, basing on the above facts stated by P.W.1, because of not filing the bank account copy of

P.W.1, no adverse inference can be drawn against the plaintiff.

d) P.W.1 categorically stated that he has no business transaction with defendant prior to execution of Ex.A-1 pronote and defendant did not give any cheques to him in connection with any business transactions of defendant with him. He also stated that he is not doing any brick kiln and real estate business and the defendant did not borrow money from him by stating that he will supply bricks to him.

e) In the light of said facts stated by P.W.1, the defendant should have placed evidence to prove that he has given any cheque to P.W.1 in connection with any business transactions and that P.W.1 is doing bricks kiln and real estate busyness and in connection with the same any cheques are given by defendant to him. No evidence is placed by defendant that the plaintiff has filed any case against the defendant basing on any cheque which is alleged to have been given by defendant to the plaintiff in respect of any business transaction and the defendant entered into compromise with the plaintiff in that regard. In those facts and circumstances, the defences of him that bounced cheque is handed over to defendant and later he paid amount of

Rs.10,00,000/- to plaintiff directly after 3 months on 15.1.2011 and directly paid interest to the plaintiff is not at all believable.

19. a) P.W.1 stated in his cross examination that he mentioned in the plaint that he is resident of Sriramnagar and door number of his house is 1-8-8. He also admitted that he has Aadhar card and voter card in Kakinada address of him. He further stated that “I have no recorded evidence to show that I was at Kakinada on the date of Ex.A-1 and I was having Rs.10,00,000/- with me 24 on that date. I gave Rs.10,00,000/- to the defendant got by me from the sale proceeds of paddy of me and as such there is no documentary evidence to show that I was having Rs.10,00,000/- with me by the date of Ex.A-1. In

Panangipalli village, commission agents had taken my paddy and gave the cash for the paddy sold by me. I am having 30 acres of land with a yield of 1000 paddy bags for crop. I do cultivation of my lands on my own”.

b) P.W.2 stated in his cross examination that he is native of

Gangavaram village and live by doing cultivation of lands in Gangavaram, but he is residing in Kakinada for the last 10 years. In the chief examination he mentioned that he is resident of Kakinada. He also stated in his cross examination that “Chitikina Suryarao signed in Ex.A-1 as 2nd attestors. At the request of defendant, I signed in Ex.A-1 as 1st attestor. The defendant signed in Ex.A-1 pronote as executant after the same was scribed by the scribe. The defendant did not scribe Ex.A-1 pronote in his own handwriting. Ex.A-1 was executed by defendant in the house of plaintiff situated in Sriramnagar nearby to Railway Station in the evening. All the persons including defendant who signed in Ex.A-1 used the pen of defendant. Ex.A-1 was scribed in total by hand writing”.

c) P.W.3 stated in his cross examination that he is residing in a rented house near Balaji Cheruvu of Kakinada and in Ex.A-1 after his signature it is mentioned as “�� ”. He also stated that “After the thumb impression he signed across the stamp in continuation of the said thumb impression but the thumb impression is not affixed on the stamp. There is no mention of anything after the thumb impression about the same. He generally get left hand thumb impression affixed. Nobody by name Chittineni Suryarao was present at the time of execution of Ex.A-1. Ch.Surya Prakasarao signed in Ex.A-1 as an attestor. I do not remember whether Ex.A-1 was executed on a festival day.

Ex.A-1 was executed at 5.30 p.m. I signed in Ex.A-1 after all other who signed in it completed of their making signatures. I have scribed about 50 or 60 pronotes. I am aged about 66 years”.

d) Basing on the above evidence of P.Ws.1 to 3, though Chitikina Surya

Rao whose name P.W.2 stated as the person signed as 2nd attestor is not examined and the 2nd attestor’s name is clearly mentioned as Ch.Suryarao in

Ex.A-1 pronote, but signature of 2nd attestor is there, it cannot be held that

Ch.Surya Prakasarao is the 2nd attestor and not Ch.Suryarao and there are two different persons namely Ch.Suryarao and Ch.Surya Prakasarao and due to that in view of P.W.1 deposed that one Ch.Surya Prakasarao attested in his chief examination that are two different persons namely Ch.Suryarao and

Ch.Surya Prakasarao and as such there is discrepancy in the evidence in respect of 2nd attestor and thereby execution of Ex.A-1 is not believable. In this regard the learned counsel for the plaintiff submits that Chettipothula

Surya Prakasarao is also called as Chitikina Surya Rao since it is alias and calling name and due to that in the chief examination of P.Ws 1 and 2 at one place it is mentioned that Chitikina Suryarao was also present, at the time of execution and at other place it is mentioned that Chettipothula Surya

Chettipothula Surya Prakasarao is also called as Chitikina Surya Rao and in

Ex.A-1 the 2nd attestor’s name is mentioned as Ch.Suryarao, the defendant cannot claim that there are two different persons namely Ch.Suryarao and

Ch.Surya Prakasarao due to which since the 2nd attestor is not examined, the execution of Ex.A-1 is not believable.

e) The defendant in the written statement pleaded that the scribe has not filled the promissory note in the presence of the defendant nor the attestors present at the time of transaction and that the attestors are the henchmen of plaintiff and Pathuri Satyanarayana Murthy and no consideration is passed under the promissory note to the defendant on the alleged date 15.1.2011 from the plaintiff and it is prepared for the purpose of the suit. But nothing contra is elicited in the cross examination of P.Ws.1 to 3 to prove any 26 of these facts pleaded in the written statement by the defendant. Basing on the evidence of P.Ws.1 to 3, though no documents are filed that P.W.1 was present at Kakinada on the date of Ex.A-1 and he was having cash of

Rs.10,00,000/- with him on that date, but because of that it cannot be held that Ex.A-1 was not executed at Kakinada in the house of P.W.1 and the plaintiff was not having capacity to lend that amount as not only P.Ws.1 to 3 in one voice have stated that all these facts both in their chief examination and cross examination and nothing contra is elicited in that regard from them, and also D.W.1 himself admitted about his having transactions and making payment of Rs.10,00,000/- which he borrowed from D.W.1 after 3 months from 15.1.2011. Hence, the defendant cannot claim that the plaintiff is not having capacity to lend that amount. In view of that there is force in the contention of learned counsel for the plaintiff that there is no pleading in the written statement that plaintiff has no capacity to lend a sum of

Rs.10,00,000/- on the date of Ex.A-1 and further defendant as D.W.1 admitted in the cross examination that he borrowed Rs.10,00,000/- on the date of Ex.A-1 but claiming that he repaid that amount and as such the defendant cannot claim that plaintiff has no capacity to lend a sum of

Rs.10,00,000/- on the date of Ex.A-1. In view of that the evidence of P.Ws.1 to 3 coupled with the contents in Ex.A-1 and the admissions of D.W.1 clearly prove that a sum of Rs.10,00,000/- is borrowed by the defendant from the plaintiff on 15.1.2011 agreeing to repay the same with interest at 24% yearly compound on demand to the plaintiff or his order and executed a demand promissory note in favour of the plaintiff at Kakinada.

20. a) The learned counsel for defendant cited the decision in between

Shipping Corporation of India Ltd., Appellant Vs. Machado Brothers and

others, Respondents reported in AIR 2004 Supreme Court 2093, in which the

Hon’ble Supreme Court held at Para-25 as follows:

“25. Thus it is clear that by the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the Court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application under Section 151 of CPC to bring to the notice of the Court the facts and circumstances which have made the 27 pending litigation infructuous. Of course, when such an application is made, the Court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not.”

b) As per the principle laid down in the above decision, the defendant is entitled to bring notice of the Court, the facts and circumstances and subsequent events relating to and mentioned in C.C.428/2014, in order to show that in list of documents the date of pronote is mentioned as 10.5.2011 and in the chief affidavit of P.W.1 cheque number mentioned is different than the cheque number mentioned in Ex.P-2.

c) The defendant is claiming that chief affidavit of P.W.1 is given after giving evidence in C.C.428/2014 and the plaintiff is in the habit of giving wrong information and wrong particulars to the Court and whenever questioned and disputed claiming that it is a typographical mistake. The defendant is also claiming that as P.W.1 did not deny about return of cheque on 25.3.2011, but claiming that it is related to previous transaction and it is settled prior to Ex.A-1, but Ex.A-1 is dated 15.1.2011 as per plaint and the pronote date is 10.5.2011 as per document list in Ex.A-1, the suit transaction is in existence prior to 23.4.2011 i.e. date of obtaining of cheque by the plaintiff. The defendant is also claiming persons mentioned in Ex.A-1 are of different places and there is no possibility to unite at one place. He is also claiming that Ex.A-1 was not written on 15.1.2011 and it might be created prior to filing of notice under Ex.A-2, which is not relevant to the suit transaction, but it is only notice U/s 138 of N.I.Act. In this regard it is pertinent to note that the evidence of P.Ws.1 to 3 in one voice clearly prove that the defendant executed Ex.A-1 pronote on 15.1.2011 after borrowing a sum of Rs.10,00,000/- from P.W.1. Nothing contra is elicited in the cross examination of any of them. Merely because P.Ws.1 to 3 are of different places there is no force in the contention of learned counsel for defendant that there is no possibility to be present by all of them at one place on the date of execution of Ex.A-1. P.W.1 admitted of his giving evidence in C.C.428/2014 28 and his stating that he is having ration card at Panangipalli village, but because of that fact and also he has no household supply card, but he has got

Aadhar card and voter card in Kakinada address of him and does not remember about whether by the date of Ex.A-1 he was having Aadhar card, but he had got voter card by that date, it cannot be held that due to not filing of any document to show that Kakinada address of P.W.1, Ex.A-1 is not executed by defendant at Kakinada as stated by P.W.1.

d) No evidence is placed to show that there are two persons namely

Ch.Suryarao and Ch.Surya Prakasarao. Merely because there is discrepancy in evidence in respect of 2nd attestor, it cannot be held that execution of Ex.A-1 is not believable. As stated earlier as contended by the learned counsel for plantiff Ch.Suryarao and Ch.Surya Prakasarao are not two different persons and the 2nd attestor’s name is mentioned as Ch.Suryarao in Ex.A-1. Hence, in the absence of any evidence placed by defendant, it cannot be held that there are two different persons namely Ch.Suryarao and Ch.Surya Prakasarao.

21. a) The learned counsel for defendant cited the decision in between

C.Venkata Rao and others Vs. C.Vasudevarao and others reported in 2005 (1) ALD (NOC) 71, in which the Hon’ble High Court held as follows:

“An admission is a statement made by any person which suggests any inference as to any fact in issue. Such admissions may be against any person who makes them. But when a person, even a party to a suit, makes a statement in answer to a question and denies any suggestion made in relation to a similar question, it cannot be said that the persons admitted to the existence of certain relevant facts themselves especially when the person in cross examination makes a statement which goes contrary to the case set up in the pleadings. We must not forget that any amount of evidence without pleading has no evidentiary value and in such an event it is the duty of the court to ignore stray and causal utterances in the oral evidence and take a holistic view of the entire evidence before arriving at a conclusion that a witness has admitted the case against him. Therefore, in the considered opinion of this court, the above statement of D.W.1 cannot be taken as admission of plaintiff’s case. Except saying that he has not as on the date of cross examination produced evidence, he did not give up his case on his own volition as set up in the written statement. As a matter of fact, subsequently, he took necessary steps to examine D.Ws. 2 and 7 and to mark necessary account registers and ledgers and other documents to prove his case that he was drawing salary and that he has raised loans. Further, an admission made by a party to a suit relevant to the issue in controversy alone that matters. If D.W.1 in the written statement as well as in evidence states that he is absolute owner of H.No.15, East Marredpally in addition to the two houses in A-Schedule which he claims to be nenami in the name of his mother, the same cannot be taken that D.W.1 has admitted that Items 1 and 2 of A-schedule are joint family properties.” 29

b) As per the principle laid down in the above decision, the admissions if any made by P.Ws.1 to 3 have to be taken into consideration and further the evidence without pleading has no evidentiary value. Even though it is not pleaded in the plaint that Ch.Suryarao and Ch.Surya Prakasarao are one and the same, but due to that merely because there is discrepancy in the evidence in respect of 2nd attestor it cannot be held that the evidence of P.Ws.1 to 3 in respect of execution of Ex.A-1 is not believable. As stated earlier no evidence is placed to prove that there are two different persons namely Ch.Suryarao and Ch.Surya Prakasarao. In those facts and circumstances as stated earlier, it can be safely held that the plaintiff has proved that the defendant for the purpose of his necessities i.e. for business purpose borrowed a sum of

Rs.10,00,000/- from the plaintiff on 15.01.2011 agreeing to repay the same with interest at 24% yearly compound on demand to the plaintiff or his order and executed a demand promissory note in favour of the plaintiff at Kakinada.

22. D.W.1 in the chief examination sought to mark the deposition of P.W.3 and P.W.1 in C.C.428/2014 dated 18.9.2015 and 19.6.2015 respectively as

Exs.B-2 and B-3. But as the plaintiff and Ch.Suryarao are alive and no valid reasons and grounds enshrined in Sec.33 of E.Act are given for marking them, they were not permitted to be marked being depositions of living persons. It is also held that the defendant is at liberty to take appropriate steps in respect of those documents, but the defendant did not take any steps to place evidence in respect of said documents sought to be marked as Exs.B-2 and

B-3. As such the defendant is not entitled to rely upon the depositions which are sought to be marked which are of P.W.3 and P.W.1 in C.C.428/2014. The defendant has not examined any independent witnesses including other attestor who is not examined by the plaintiff to rebut the presumption drawn

U/s 118 (a) N.I.Act that consideration under Ex.A-1 is passed. Ex.A-1 pronote is not compulsorily attestable document. As such examination of attestor to prove attestation of Ex.A-1 pronote is not compulsory, but the plaintiff 30 examined one of the attestors and scribe as P.Ws.2 and 3 who corroborated the evidence of P.W.1. In those facts and circumstances, merely because the plaintiff has not examined the other attestor Ch.Surya Prakasarao, whose name is signed as Ch.Suryarao in Ex.A-1 it cannot be held that the evidence of

P.Ws.1 to 3 is not believable and there are two persons one is Ch.Suryarao and the other is Ch.Surya Prakasarao. The defendant also not placed any evidence to prove any of these facts and not examined the said 2nd attestor to prove claims of him without any valid reason. Since the plaintiff discharged the initial burden of proving execution of Ex.A-1 and passing of consideration it is for the defendant to place evidence to rebut the same, but he has not placed any evidence to prove any of his defences, more so the evidence to rebut the presumption U/s 118 of N.I.Act. Merely because Ex.A-1 is printed pronote and P.W.1 stated that Ex.A-1 was scribed in total by handwriting it cannot be held that the evidence of P.W.1 is not believable. The evidence of

P.Ws.1 to 3 clearly prove that the defendant executed Ex.A-1 pronote. The evidence of P.Ws.1 to 3 did not show that any new person Ch.Surya

Prakasarao is introduced in the evidence of P.W.1 as it is quite natural that a person may be having two names, but because of that it cannot be held that there are two different persons. The defendant not placed any evidence to prove that there are two persons namely Ch.Suryarao and Ch.Surya

Prakasarao. In view of that there is force in the contention of learned counsel for plaintiff. Thereby the defendant miserably failed to place evidence to rebut the presumption U/s 118 (a) of N.I.Act that consideration is passed. Hence, it can be safely held that the rebuttable presumption in favour of the plaintiff U/s 118 (a) of N.I.Act that consideration of Rs.10,00,000/- is passed under Ex.A-1 is not rebutted by the defendant.

23. The agreed rate of interest as per Ex.A-1 is 24% p.a. compound interest with yearly rests. The defendant pleaded in the written statement that the defendant is doing business on the construction of flats is true. But the 31 defendant is not doing the said business on his own but is running a partnership firm under the name and style of M/s P & N Associates, Kakinada which is Regd. Partnership firm No.40/2009 registered under Registrar of

Firms, Kakinada dt.24.02.2009. The defendant is doing business with his partner Sri Pathuri Satyanarayana Murthy of Velangi and both of them executed Memorandum of Partnership Deed dt.16.02.2009 with main course of business is to purchase sites, act as property Developers and obtain permissions from necessary departments for making construction of apartments. In view of that plaintiff proved that the amount is borrowed for business purpose. In those facts and circumstances, the plaintiff is entitled for claiming compound interest on yearly rests at 24% p.a. The defendant is not an agriculturist and as such he is not entitled to the benefits of Act 4 of 38 and

Act 7 of 77. The plaintiff calculated the suit amount basing on the compound interest at 24% p.a. with yearly rests. In those facts and circumstances, the plaintiff is entitled for the suit amount in the absence of any valid reasons explained by the defendant that the plaintiff is not entitled to claim compound interest in pronote debts. The defendant pleaded in the written statement that the plaintiff is not entitled to claim any compound interest on the pronote debts, since the promissory note is fabricated for the purpose of the suit and that there is no alleged contract for payment of compound interest payable in favour of plaintiff. No contra evidence is placed by the defendant to prove any of the facts pleaded in the written statement about there being no contract for payment of compound interest payable by the defendant to plaintiff. The plaintiff has proved the execution of Ex.A-1 by defendant after borrowing a sum of Rs.10,00,000/- agreeing to repay the same with compound interest at 24% p.a. with yearly rests.

24. Hence, the plaintiff has proved that the Ex.A-1 suit promissory note dt.15.1.2011 was executed by the defendant in favour of plaintiff and that the suit pronote is true, valid and binding on the defendant and the plaintiff is 32 entitled for recovery of the suit amount along with subsequent interest from the defendant. Accordingly, the issues 1 to 2 are answered. Basing on the answers to issues 1 to 2, the issue No.3 is answered.

25. ISSUE NO.3:- In the result, the suit is decreed with costs in favour of the plaintiff and against the defendant directing the defendant to pay the plaintiff the suit amount of Rs.17,28,262/- by awarding subsequent interest at contract @ 24% p.a. yearly compoundable from the date of suit i.e., 22.07.2013 till realization on the amount of Rs.15,37,600/-.

Dictated to the Stenographer Grade-II, transcribed by him, corrected

and pronounced by me in the open court this the 9 th day of February, 2018.

III ADDITIONAL DISTRICT JUDGE,

KAKINADA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:

P.W.1: Prathipati Srihari. P.W.2: Nemani J.J.Ramprasad. P.W.3: Chamarthi Suryarao.

For Defendant:

D.W.1: Nanipalli Siva Ramakrishna.

DOCUMENTS MARKED

For Plaintiff:

Ex.A-1: Promissory note executed by the defendant dt.15.1.2011. Ex.A-2: Office copy of legal notice dt.4.7.2013 got issued by plaintiff. Ex.A-3: Returned postal cover.

For Defendant:

Ex.B-1: Certified copy of complaint in C.C.428/2014 on the file of V Addl. J.F.C.Magistrate’s Court, Kakinada.

III A.D.J.

FAIR COPY OF JUDGMENT

IN O.S.152/13, DT.09.02.2018

AS/100199/2012

Arumilli Kasi Viswanadham vs Arumilli Krishna Bhaskararao and another

29 Jan 2018

IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE

EAST GODAVARI AT KAKINADA

Present: SRI N.MALYADRI III Addl. District Judge

Monday, the 29th Day of January, 2018

APPEAL SUIT No.199 of 2012

Between:

Arumilli Kasi Viswanadham ... Appellant/Defendant.

AND

1.Arumilli Krishna Bhaskararao

2.Arumilli Satyavathi ... Respondents/Plaintiffs.

On appeal against the decree and Judgment dated 28.9.2012 in

O.S.No.625/2010 on the file of I Additional Junior Civil Judge’s Court,

Kakinada in

Between:

1.Arumilli Krishna Bhaskararao

2.Arumilli Satyavathi ... Plaintiffs.

AND

Arumilli Kasi Viswanadham ... Defendant.

This appeal suit coming on the 22.6.2017 for final hearing before me in the presence of Sri P.Rajesh Babu, Advocate for Appellant and Sri K.Venkateswara Rao, Advocate for Respondents, and the matter having stood over for consideration, this Court delivered the following:-

J U D G M E N T

This appeal is filed against the decree and Judgment dated 28.9.2012 in

O.S.No.625/2010 on the file of I Additional Junior Civil Judge’s Court,

Kakinada.

2. The suit in O.S.No.625/2010 is filed by the plaintiffs against the defendant directing the defendant to pay a monthly maintenance of

Rs.2,000/- each to the plaintiffs by creating charge over the plaint schedule property and for costs of the suit.

3. The brief and relevant facts pleaded in the plaint are as follows:

a) The 2nd plaintiff is wife of the 1st plaintiff and the defendant is adopted son of the plaintiffs. The plaintiffs have not blessed with children.

Therefore, at the instance of 2nd plaintiff, the 1st plaintiff agreed to adopt the defendant, who is no other than the sister’s son of 2nd plaintiff. The plaintiffs adopted the defendant while he was aged 4 years through a registered adoption deed dt.15.2.1990 vide doc.No.102/1990 of Sub Registrar Office,

Kakinada. The plaintiffs hailed from agricultural family and they are not worldly-wise. The 1st plaintiff with his hard labour acquired property of an extent of Ac.2-50 cents in Pedapudi village.

b) The 1st plaintiff at the instance of defendant started construction of house in the year 2003 in the vacant site purchased by 1st plaintiff with the monies given by his in-laws of his first wife in the year 1965. The 1st plaintiff borrowed amounts from the third parties and also loans and completed construction of RCC house.

c) The plaintiffs at the instance of defendant settled the marriage of defendant with daughter of Seva Venkatarao of Vetlapalem village in June, 2004. At the time of marriage settlement, the in-laws of defendant insisted to specify the share of property of defendant and the defendant also requested the plaintiffs to separate his share of property. The plaintiffs agreed to take only Ac.0-50 cents of land towards their share as house property stands in the name of 1st plaintiff and agreed to give Ac.2-00 cents of wet land worth

Rs.18,00,000/- towards share of defendant and said Ac.2-00 cents of land also included Ac.0-50 cents of land which was directly purchased by 1st plaintiff in the name of defendant under registered sale deed dt.14.12.1992. The 1st plaintiff and defendant executed a registered partition deed dt.29.7.2004.

d) The plaintiffs performed the marriage of defendant in August, 2004 by spending nearly Rs.2,00,000/- by borrowing amounts as per the wish of defendant. After the marriage, there is a change in the attitude of defendant and started harassing the plaintiffs to convey small extent of property to him and he also secreted the income from the landed property without discharging the debts and when the 1st plaintiff demanded, the defendant shifted his 3 family to Kaikavolu village in the month of September, 2009. As the creditors are pressing for discharge of debts, the 1st plaintiff having no alternative sold away the house property to Rimmalapudi Krishnaveni under registered sale deed dt.14.10.2009. The plaintiffs on a monthly rent of Rs.600/- subsequent to sale are residing in the said property as tenants. After the sale, the defendant along with his wife and natural parents abused 2nd plaintiff in filthy language on 23.11.2009 and assaulted the 2nd plaintiff in black and blue and the S.H.O, Pedapudi P.S registered a case in this regard.

e) Suppressing all the facts, the defendant filed suit in O.S.1005/2009 on the file of II Addl. Junior Civil Judge, Kakinada falsely claiming rights in the half share of house property. The defendant also filed I.A.1737/2009 for temporary injunction and the same is dismissed. Thereafter the defendant grew wild and attempted to do away with the life of 2nd plaintiff and the defendant hacked 2nd plaintiff with a knife and the Pedapudi Police also registered a case against the defendant.

f) The plaintiffs after discharging the debts by selling away their properties are left with no properties. The 1st plaintiff due to advancement of age is not in a position to attend any work and he is suffering from high blood pressure. The 2nd plaintiff is suffering from Kidney stones and suffering severe pain and even not in a position to attend household work. The plaintiffs are not in a position to maintain themselves and due to lack of means they are starving. The defendant is cultivating the land of Ac.2-00 cents besides that his wife is having Ac.1-30 cents of land in Vetlapalem village. Besides that the defendant with the properties derived from the plaintiffs is cultivating the land by taking on lease not less than Ac.15-00 cents of land. In all together, the defendant is getting income of not less than Rs.1,80,000/- per annum. The defendant is supposed to maintain the plaintiffs at the old age legally and morally. But the defendant after taking away the property from the plaintiffs now willfully neglected to maintain the plaintiffs. The plaintiffs taking into the present days cost of living required not less than Rs.2,000/- each per month 4 towards their maintenance and medical expenses. Hence, the suit may be decreed with costs.

4. The defendant filed written statement under Order VIII Rule 1 of C.P.C.

The brief and relevant facts pleaded in it are as follows:

a) The plaintiffs suit is not just and maintainable in law and the material averments in the plaint are all false.

b) The plaintiffs are worldly wise people and they appear to be not worldly wise. They used so many third degree methods to forcibly evict the defendant from the house property and they also denied physical possession of house property by the defendant with his family. The 1st plaintiff and defendant with their hard labour and also by obtaining two separate housing loans from the bank, jointly constructed the house property, in which the plaintiffs and defendant are having equal rights. No loans were obtained from third parties for construction of house.

c) The partition was effected with regard to lands only and at that time the house property was not partitioned as it was constructed jointly by obtaining two separate housing loans and the same are not discharged. Some more landed property is also standing in the name of 2nd plaintiff, which was purchased with the family earnings and hence, they are in possession of that land. Thus, both the 1st plaintiff and defendant are holding equal landed properties and no excess land was given to the defendant. The fact of sanction of housing loan in the name of the defendant clearly shows that the defendant is having joint right in the house property.

d) The Ac.0-50 cents purchased in the name of defendant is shown as item No.1 of plaint schedule and remaining Ac.1-50 cents given to defendant under the above said partition deed is shown as item No.2 of plaint schedule is not true and correct. The natural parents gave money to the defendant and with that amount, the property was purchased and the same was registered in the name of defendant and it is his separate property.

e) The defendant never shifted to Kaikavolu at any time. The defendant is always residing in the northern portion of house due to misunderstandings in between the plaintiffs and wife of the defendant. When the plaintiffs are trying to interfere with defendant’s peaceful possession and enjoyment of house portion, the defendant filed suit in O.S.1005/2009 on the file of II Addl.

Junior Civil Judge, Kakinada and the Court dismissed the injunction petition holding that documents filed by the defendant are not sufficient to prove the possession and the defendant filed C.M.A and the same is pending on the file of IV Addl. District Court, Kakinada.

f) There are no debts at all and there is no necessity to borrow any amount from anyone to plaintiffs. No one issued notice demanding to discharge the debt and no suits are filed and the alleged debts are created for the purpose of execution of sale deed. In the suit in O.S.1005/2009, the plaintiffs pleaded in the written statement that after sale, the defendants by requesting the vendee are residing in southern part of the property by paying rent and that after disposal of injunction petition, the vendee got issued a notice dt.14.2.2010 stating that after sale of schedule property, the 1st plaintiff requested the vendee to permit him to reside in the northern side of house on paying monthly rent of Rs.600/- for four months and the other portion was locked by the vendee. The 2nd plaintiff being lady raised dispute and she got lodged a complaint by influencing the police to harass the defendant to leave the house. The plaintiffs also disconnected the electricity and water connection and this suit is filed only to harass the defendant.

g) In the partition of the landed property, the 1st plaintiff got landed property and 2nd plaintiff is also in possession of landed property and they are having sufficient means to maintain themselves. There are no family debts.

The alleged sale of property to Rimmalapudi Krishnaveni is also false and said

Krishnaveni is the daughter of 1st plaintiff’s brother. The defendant is in possession of northern portion and the plaintiffs are residing in southern portion till today. The plaintiffs also got filed a suit in O.S.171/2010 by the alleged vendee on the file of Prl. Senior Civil Judge, Kakinada for possession of 6 entire house property, which shows that no portion of the property was delivered to the alleged vendee and the alleged sale is only nominal and sham to defeat the rights of the defendant.

h) The defendant never neglected the plaintiffs and due to disputes between the defendant’s wife and 2nd plaintiff, they themselves are living separately. The plaintiffs are not entitled to claim any separate maintenance.

The defendant has no objection to maintain them if they are ready to live with the defendant. The defendant is not in a position to maintain them separately by spending Rs.2,000/- per month and he is living by doing cultivation without regular income over the property. There is no cause of action for this suit.

Hence, the suit may be dismissed with costs.

5. The following issues are settled for trial:

1) Whether the plaintiffs are unable to maintain themselves?

2) Whether the defendant got landed property and getting sufficient income to pay maintenance to the plaintiffs?

3) Whether the plaintiffs contracted debts for the purpose of constructing the house and for performing marriage of the defendant?

4) Whether the plaintiffs are entitled to seek maintenance from the defendant?

5) To what relief?

6. In the trial Court during the course of trial, on behalf of plaintiffs,

P.Ws.1 to 4 are examined and Exs.A-1 to A-3 are marked. On behalf of defendant, D.Ws.1 to 5 are examined and Ex.B-1 is marked.

7. After conducting due trial, the trial Court decreed the suit with costs directing the defendant to pay Rs.2,000/- from the date of filing of the suit for every month to each plaintiffs be paid by the defendant on or before 5th of every month.

8. As against the said decree and judgment in O.S.625/2010 the present appeal is filed under Section 96, Order 41 Rule 1 of C.P.C. The brief and relevant grounds of appeal are as follows:

a) The decree and judgment of the trial Court is contrary to law, weight of evidence and probabilities of the case.

b) The trial Court erred in disposing the case not on merits in the suit, without considering the evidence adduced by both parties and documents filed by both parties has given its own version which is not urged by both sides.

c) The trial Court started its judgment stating that the defendant has capacity to maintain their parents as he is getting income of Rs.90,000/- to

Rs.1,00,000/- per annum from his landed property.

d) The trial Court failed to consider the expenditure for cultivating the land and without deducting the expenditure came to the conclusion that the defendant is getting Rs.90,000/- to Rs.1,00,000/- income per annum on the imaginary ground that the land yield two crops for year and the yield would be 90 to 100 bags per two crops.

e) The trial Court failed to see that the plaintiff can only succeed only strength of his case but not on other grounds. The specific case of the plaintiffs is that they incurred debts and for discharge of debts they sold away all their properties and discharged the debts and they became paupers and the defendant has to maintain them.

f) The trial Court failed to see that along with the suit the plaintiffs filed

I.A. for interim maintenance and the same was dismissed, but the plaintiffs did not prefer any appeal and it shows that they are having sufficient means for their maintenance.

g) The trial Court failed to see that the defendant is only depending on agriculture and he is not having any regular income and how can the defendant will pay the maintenance regularly every month when the yield is not sufficient for his maintenance and the expenses for raising the crop.

h) The trial Court failed to consider during the pendency of the suit , the plaintiffs got cash and gold of 8 sovereigns and Ac.0-30 cents of land towards their share after death of 2nd plaintiff’s mother and elders also gave evidence to that effect and it shows that the plaintiffs are having sufficient means for their maintenance.

i) For the above and other grounds of appeal that may be urged at the time of hearing, the appellant prays to allow the appeal with costs by setting 8 aside the decree and Judgment dated 28.9.2012 in O.S.No.625/2010 on the file of I Additional Junior Civil Judge’s Court, Kakinada and dismissed the suit with costs.

9. For the sake of brevity and convenience here after the parties and evidence will be referred as referred in the suit in O.S.625/2010.

10. a) The learned counsel for the defendant submits the brief and relevant facts pleaded in the plaint and written statement and also the brief and relevant grounds of appeal referred supra.

b) The learned counsel for the defendant submits that the plaintiffs miserably failed to prove that the family was having any debts and defendant proved that the plaintiffs transferred the properties to their kith and kin and wrongfully claiming suit reliefs as if they require maintenance.

c) The learned counsel for the defendant submits that issue No.3 was answered in favour of the defendant holding that the plaintiffs are not having any debts and the interim petitions filed for granting maintenance is dismissed in I.A.468/2010 and I.A.469/2010 and there are no valid reasons to sell the properties and the properties are sold as shown in Exs.A-2 to A-3 and Ex.B-1 on one day i.e. 14.10.2009 to the kith and kin of plaintiffs and the contents in them shows that those properties were sold for development, but the evidence is that they are having debts and to discharge the debts, the properties were sold and that not only the trial Court held that they were not having any debts, but also the plaintiffs miserably failed to prove the debts to them and that is the cause and reason for selling the properties by them.

d) The learned counsel for the defendant submits that the purchasers are the henchmen of the plaintiffs and even now his parents are residing in one portion and defendant is residing in another portion of the property already sold and the plaintiffs are claiming falsely that they are tenants of the property already sold and if really they are tenants there is no reason why rent is not paid for sufficient long period by the plaintiffs to the alleged vendee and no steps such as filing suit or issuing notice is taken by the vendee 9 against the plaintiffs, which shows that sale of the property claimed by the plaintiffs under the original of Ex.B-1 is absolutely false and the plaintiffs are not entitled for any maintenance.

e) The learned counsel for the defendant submits that the alleged purchasers are henchmen of the plaintiffs and the housing loans are not discharged by 1st plaintiff, and that the plaintiffs are having sufficient means and capacity and own properties and consideration amounts mentioned in those documents if really they sold the properties, and as they failed to prove the discharge of debts, they do not require any maintenance, but the trial

Court without considering evidence on record and also expenditure required to be spent for cultivation, wrongly held that defendant is not having regular income from the lands and that though he is not getting any regular income from the said property but the trial Court granted maintenance contrary to law and hence, in the interests of justice this appeal is A.S.No.199/2012 may be allowed with costs and decree and judgment in O.S.625/2010 dt.28.9.2012 of

I Additional Junior Civil Judge, Kakinada may be set aside and the said suit may be dismissed with costs.

11. a) The learned counsel for the plaintiff submits the brief and relevant facts pleaded in the plaint and written statement and also the brief and relevant grounds of appeal referred supra.

b) The learned counsel for the plaintiff submits that the defendant is not natural son, but he is son of 2nd plaintiff’s sister, who was adopted with a fond hope that he will look after the plaintiffs and brought him up and the plaintiffs constructed big house by borrowing money and performed marriage of the defendant on large scale and registered partition deed is also executed and the plaintiffs are having old age and after retaining Ac.0-50 cents, had given

Ac.2-00 cents to defendant which included Ac.0-50 cents directly purchased by 1st plaintiff in the name of defendant, and that D.W.1 admitted about sale of properties for discharge of debts under Exs.A-2 to A-3 and Ex.B-1 and merely because in those documents there is no mention about sale of the properties 10 for discharge of debts and the same is due to the wish of the purchasers, the scribe did not write about the debts of them in the sale deeds, the plaintiffs have proved that they are not having properties, means and capacity to maintain themselves and the trial Court after careful consideration of the entire evidence on record rightly decreed the suit with costs and there are no grounds to interfere with the judgment and decree of the trial Court in

O.S.625/2010 dt.28.9.2012 of I Additional Junior Civil Judge, Kakinada and

hence the appeal may be dismissed with costs.

12. Basing on the pleadings, evidence and the contentions of learned counsel for all the parties the following points emerge for consideration:

1)Whether the plaintiffs are unable to maintain themselves?

2)Whether the defendant got landed property and getting sufficient income to pay maintenance to the plaintiffs?

3)Whether the plaintiffs contracted debts for the purpose of constructing the house and for performing marriage of the defendant?

4)Whether the plaintiffs are entitled to seek maintenance from the defendant?

5)Whether the plaintiffs are entitled for grant of maintenance, even if they failed to prove that they contacted debts and sold property for discharge of those debts?

6)Whether the plaintiffs are entitled for grant of maintenance @ Rs.2,000/- each as granted by the trial Court?

7)Whether the decree and Judgment dated 28.9.2012 in

O.S.No.625/2010 on the file of I Additional Junior Civil

Judge’s Court, Kakinada require varying or modification or

confirmation?

8)To what relief?

13. POINTS 1 TO 7: These points are interrelated and very close to each other. Hence, in order to avoid repetition of discussion of the evidence and for the sake of convenience and brevity, they are discussed in common.

14. The plaintiffs to prove the suit claims examined themselves as P.Ws.1 and 2, who are husband and wife and adopted parents of defendant and also third party witnesses, residents of Pedapudi village as P.Ws.3 and 4. The defendant to disprove the suit claims examined himself as D.W.1 and his natural parents as D.Ws.2 to 3 and 3rd party witnesses, residents of Kaikavolu and Pedapudi villages as D.Ws.4 to 5. P.Ws.1 and 2 and D.W.1 being parties 11 to the suit deposed in their chief examinations as per their respective pleadings, claims and contentions.

15. a) P.W.1 got marked Exs.A-1 to A-3 which are registration extract of partition deed dt.29.7.2004, registration extract of sale deed dt.14.10.2009 bearing doc.No.7200/2009 and registration extract of sale deed dt.14.10.2009 bearing doc.No.7201/2009.

b) P.W.1 in the cross-examination stated that the defendant is his adopted son and he was living with them from the age of 4 years and that they have been living as joint family and by the date of constructing house in 2003, the defendant was not married. He also admitted and stated that loan was sanctioned by the government in the name of himself and D.W.1 and by the date of constructing house there is no partition. He admitted that he did not mention in the plaint or in chief affidavit about the details of the person from whom the amount has been borrowed and how much amounts were borrowed. He also admitted and stated that “the marriage of defendant was performed in the year 2004. At the time of availing loan either in 2003 or in 2004 I did not mortgage the property. I only borrowed amount basing on the promissory notes. None of my creditors gave either legal notice or filed any suits for recovery of amounts borrowed by me”. He further stated that “I have not filed any documents to show that by selling the house and landed property, I discharged the loan. There is Ac.0-77 cents of land in the name of my wife. It is true I filed documents claimed that my house and landed property as well as the landed property of my wife were sold on 14.10.2009. I do not know that in the sale deed executed by my wife it is mentioned that the property is sold for developing other property, but it is no where mentioned that the property was sold for discharging the loan. It is true Ex.B-1 is the copy of sale deed under which I sold the house property”. He further stated that “I do not know in Ex.B-1 it is mentioned that out of the sale consideration, I will discharge the loan and obtain acknowledgments and give the same to my vendees as voucher document. It is true the vendee under

Ex.B-1 is daughter of my elder brother. It is true my wife sold the property to 12 son of my elder sister. It is true after marriage of the defendant nearly for two years, the defendant, his wife and myself lived together. It is true when the disputes arose between wife of defendant and my wife, the defendant and his wife separated their mess and living in the portion of the same house”. He also admitted and stated that “It is true there is a sale deed in the name of defendant for an extent of Ac.0-50 cents”. He also stated that “It is true at the time of partition I gave Ac.1-50 cents of land to defendant. It is true by the date of partition 50 cents of land is in my name and 77 cents of land is in the name of my wife. It is true since the date of quarrels the defendant is cultivating his land and we are cultivating our lands separately”.

c) P.W.2 in the cross-examination stated that “It is true we got a house at Pedapudi, which was got constructed by my husband and the defendant. It is true the loan availed for construction of the said house is not yet discharged. It is true in the same house in one portion the defendant is living and in another portion we are living. To my counsel I have informed the names of the persons from whom we borrowed amount and the amount borrowed, but I do not know whether the said details are mentioned in the plaint or in my chief examination. I have not mentioned in my sale deed that I sold the property to discharge the loan. Veerraju is son of my elder sister of my husband. So far none of the creditors gave notice demanding us to repay the borrowed amount”. She also stated that “It is true there is no power supply in portion of the house in which the defendant is living”.

d) P.W.3 in the cross-examination stated that “I have no agricultural land in my name. It it true the house in which presently I am living is given by the government. To my remembrance, the 1st plaintiff borrowed amount from me in 1982. One year thereafter the 1st plaintiff made part payment of

Rs.10,000/-. About 2 years back, the purchaser of the property from the plaintiffs discharged the loan due from the 1st plaintiff. By the date of giving loan to the 1st plaintiff I was informed that the 1st plaintiff got some land and at present there are not lands in the name of the 1st plaintiff”.

e) P.W.4 in the cross-examination stated that “I got own agricultural land of an extent of Ac.6-00 cents. I did not bring any document to prove the same. I do not remember the exact date on which I advanced Rs.1,80,000/- to the 1st plaintiff. I cannot say the exact date on which the 1st plaintiff made part payment of Rs.5,000/-. It is true I cannot say the exact date on which the 1st plaintiff discharged the remaining amount. The 1st plaintiff paid

Rs.1,50,000/- towards interest for the amount borrowed by her. I did not obtain any security from 1st plaintiff at the time of advancing the loan. No legal notices were issued by me to the 1st plaintiff demanding that 1st plaintiff borrowed amount from me”.

f) D.W.1 in the cross-examination stated that “It is true 1st plaintiff got account in Agricultural Cooperative Bank. It is true the 1st plaintiff used to borrow amount and regularly repaid the same”. He also stated that “For the purpose of construction of the house, we incurred nearly one lakh rupees both including our saved amount and loan availed from the bank. We constructed the house in an extent of 5 cents of land. Out of the house constructed, the two big rooms are facing towards western side. There are three rooms in the house constructed and out of them one room is the kitchen and it also contains Puja Mandiram. There is hall in between the two big rooms and the kitchen. We also constructed a small room on the northern side of the two big rooms”. He also stated that “My marriage was performed on 29.8.2004.

Before the marriage, my wife is not related to me. It is true presently there is

scarcity of bride unless and until costly gifts were offered it is difficult to find a match for a boy”.

g) D.W.2, natural father of defendant stated in his cross-examination that “I do not know whether the plaintiff purchased the property where he constructed his house with the money given at the time of his ‘manugudupulu’ during his marriage with his first wife. I cannot say the detail list to the assets of my sons and his contribution for the constructing the house situated at

Pedapudi village. The plaintiff got debts”. He also stated that “After executing a sale deed pertaining to the house later plaintiff and his wife got executed 14 sale deed in respect of land. The plaintiff with a view to screen away the property got executed documents with a view to avoid share to the adopted son”.

h) D.W.3 stated in his cross-examination that “I do not know the full affairs of the plaintiff as I am residing in Kaikavolu village, as they are residing at Pedapudi village, which is distant. It is true 1st plaintiff started constructing building in 2003. The 1st plaintiff constructed along with her husband. It is true at the time of constructing building 1st plaintiff borrowed housing loan by him from housing board”. He also stated that “The 1st plaintiff got performed the marriage of defendant after 8 years from the construction of house. About years back 1st defendant marriage was taken from this date”.

i) D.W.4 stated in his cross-examination that “I know family affairs of 1st plaintiff. It is true 1st plaintiff performed his son’s marriage one year after the date of completion of house. I do not know the 1st plaintiff whether he borrowed loans while constructing building and also for performing marriage of defendant. There is a criminal case registered against defendant when he hacked 2nd plaintiff and I do not know whether defendant mixed poison substance ‘Endrin’ in the buttermilk to be consumed by the plaintiffs. I do not aware by the date of filing of this suit, the plaintiffs sold their properties and discharged debts in connection of marriage and constructing building, they are unable to maintain themselves. The 2nd plaintiff got properties after the death of my sister”.

j) Even though D.W.5 deposed in the chief affidavit about the plaintiff not selling any land or house property and delivering possession and further stated that the plaintiffs are in possession of the same, nothing contra is elicited in the cross-examination of D.W.5 in respect of plaintiffs contacting debts for the purpose of constructing house and for performing marriage of defendant”.

k) The plaintiffs have not filed any promissory notes or discharge receipts and also not examined persons from whom they borrowed the amounts. In Ex.B-1 it is mentioned that 2nd plaintiff borrowed amount from 15

Rimmalapudi Radhakrishna, Randhi Apparao, Rimmalapudi Baburao and Putta

Veerraju and executed promissory notes. Further as part payments she paid some amounts on 12.3.2007 and excluding that amount, there is final settlement of debts of her. It is also mentioned that she received entire sale consideration amount of Rs.5,20,000/- and she also undertook to pay amounts due as per final settlement to the said persons and got endorsement of payment on the pronotes and will give as voucher to the buyer. But the evidence of P.W.3 clearly prove that he lent amount in the year 1982 and one year later part payment is made and about 2 years back the debt is discharged. This suit is filed in the year 2010. So, the debt is discharged according to P.W.3 in the year 2008. Ex.B-1 is dated 14.10.2009. There are no details mentioned in Ex.B-1 about the quantum of debts and how much was paid by the date of Ex.B-1 and what was total amount due by that date to the above said four persons. No vouchers are filed and no documents are enclosed to Ex.B-1. If really debts of P.Ws.3 and 4 and other two persons i.e.

Rimmalapudi Baburao and Putta Veerraju are discharged from out of the sale proceeds of Ex.B-1, the plaintiffs should have placed evidence to show that the pronote debts are discharged and endorsements are made on the said pronotes and they were returned to the plaintiffs as vouchers as mentioned in

Ex.B-1, but they did not do so.

16. a) The learned counsel for defendant cited the decision in between

Bonam Venugopal Rao and others, Appellants Vs. Tavvala Veerabhadra

Rao and others, Respondents reported in 1989 (1) ALT 91, wherein the

Hon’ble High Court Court held at Paras-11 to 12 as follows:

11. Section 55 (2) of Transfer of Property Act reads:

55. “In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:— (1) …….. (2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same”.

Unless there is an express, specific and unambiguous stipulation between the parties, there is statutory presumption that the vendor has interest in the property and he has power to transfer the same comes into play. The implied convenant for title incorporated in Sec.55 (2) cannot be set at naught except in caes where there is express contract to the contrary. On this touch stone the contract has to be tested. The recitals in Ex.A-1 do not constitute clear and unambiguous expression that the vendor (D-1) has not guaranteed about his title in the property sold to the plaintiff. It is only an offer to compensate the purchaser for any defects in the title: it is not an express contract overriding the effect of the implied covenant statutorily incorporated in Sec.55 (2). The sale deed Ex.A-1 specifically mentions that the entire sale consideration of Rs.6,000/- has been received by the plaintiff and the property “has been delivered possession”. The extent of the property recited in the document is Ac.4-55 cents. The plea of the plaintiff is that physical possession was notgiven to him and in support of this, he gave evidence as P.W.1. His evidence is to the effect that after he purchased property, he tried to get it partitioned. He contacted on Pothula Ramakrishna Rao, the alleged co-sharer who informed him that the property belonged to his mother and Smt.Ammajirao had no right in or possession of the property. The scribe of the document one Kameswara Rao in his evidence as P.W.2 testified in the chief examination that actual possession was not given. In the cross-examination P.W.2 admitted “I know very well. As per instructions given by P.W.1, I wrote the contents of Ex.A-1”.

12. The evidence regarding possession not being given at the time of the execution of the document is clearly inadmissible. When the terms of a transaction have been reduced to writing, the same must be proved by producing the document itself. As a consequence of this Sec.92 enjoins that no oral evidence shall be admitted as between the parties to any such instrument to contradict, vary, add to or subtract from its terms. The suit was not for a declaration that Ex.A-1 was vitiated due to fraud or mistake in law as provided in the first proviso to Sec.92. When the validity of the document Ex.A-1 has not been impeached, it is not open to the plaintiff to lead any evidence contrary to the express recitals therein. On this ground the plaintiffs case must fail.”

b) As per the principle laid down in the above decision, the plaintiffs are precluded to place oral evidence contra to Ex.B-1 in respect of the debts and also delivery of possession of property. The plaintiffs are not entitled to place oral evidence contrary to the terms of Ex.B-1. As such the plaintiffs have to prove that 2nd plaintiff as mentioned in Ex.B-1 borrowed amount from

Rimmalapudi Radhakrishna, Randhi Apparao, Rimmalapudi Baburao and Putta

Veerraju and executed promissory notes and further as part payments she paid some amounts on 12.3.2007 and excluding that amount, there is final settlement of debts of her. In Ex.B-1 it is also mentioned that she received entire sale consideration amount of Rs.5,20,000/- and she also undertook to pay amounts due as per final settlement to the said persons and got endorsement of payment on the pronotes and will give as voucher to the buyer. So the plaintiffs have to prove the same. But they failed to do so.

c) P.W.1 admitted that the vendee under Ex.B-1 is daughter of his elder brother. The evidence of P.Ws.1 and 2 clearly prove that no notices are given 17 or suits are filed for the amounts alleged to have been borrowed by P.Ws.1 and 2. D.W.1 admitted of 1st plaintiff borrowing amount and regularly paying to Agricultural Cooperative Bank and some loan is taken from the Bank for constructing the house. The evidence of D.W.3 shows that 1st plaintiff borrowed housing loan from the housing board. Basing on these facts, it cannot be held that the debts contacted by the 1st plaintiff are for the purpose of constructing the house which is constructed in the year 2003 while the plaintiffs and defendant were living jointly were still there by the dates of

Exs.A-2, A-3 and B-1 or by the date of filing of suit and the plaintiffs are in debts in view of construction of house by taking housing loan from the bank.

d) Plaintiffs are claiming of borrowing of amount for performing the marriage of defendant. But there is no evidence to prove that the plaintiffs incurred debts to perform the marriage of defendant. D.W.1 admitted of performing of his marriage on 29.8.2004 and there is scarcity of brides and costly gifts have to be offered or otherwise, it is difficult to find match for a boy. But due to that it is difficult to believe the version of the plaintiffs that they borrowed money for performing the marriage of defendant on 29.8.2004 and those debts were still there by the dates of Exs.A-2, A-3 and B-1 or by the date of filing of suit.

e) The trial Court answered issue No.3 holding that the plaintiffs failed to place evidence to prove that they contacted debts for the purpose of constructing the house and for performing marriage of the defendant. The trial Court observed that generally speaking in case of marriage of groom one cannot say huge amount will be incurred for marriage purpose. The trial Court also observed that it is not the case of the plaintiff that they invested huge amount for purchasing gold ornaments and further the expenditure of marriage was not placed before the Court. As against the judgment of the trial Court, the defendant did not prefer any appeal. Thereby the issue No.3 is answered against the plaintiffs. On careful consideration, it can be safely held as stated earlier that the plaintiffs have proved of 1st plaintiff availing loan from the bank for construction of the house. But the plaintiffs have not placed 18 any evidence to prove that there were any debts to them by the dates of

Exs.A-2, A-3 and B-1 or by the date of filing of suit in respect of amounts borrowed for the purpose of construction of the house. They also failed to prove that they incurred any debt to perform the marriage of defendant and the said debts were there by the dates of Exs.A-2, A-3 and B-1 or by the date of filing of suit.

17. a) In Exs.A-1 and A-2 it is mentioned that the property is sold as there is no sufficient income from the property and also with an intention to purchase some land at some other place. The plaintiffs are admittedly residing in the property which is sold by them, but they are claiming that the same is due to mercy of their vendee. Exs.A-1 to A-3 are executed in favour of relatives of plaintiffs. The plaintiffs have not placed any evidence to prove that they have been paying rents subsequent to sale of the property by them.

But because of that the defendant cannot claim that sale of the property under

Ex.B-1 is not correct and the plaintiffs did not approach the Court with clean hands and they are secreting Ex.B-1.

b) The trial Court observed because there is no issue regarding whether the plaintiff disposed of the property as on the date of filing of the suit and the alienations made by the plaintiff is true and consideration is passed or not, the only fact to be decided is whether the plaintiffs are entitled to seek maintenance or in a position that they are unable to maintain themselves. The plaintiffs are claiming that they discharged the debts by selling away their properties and they are left with no properties. The said allegation is denied by the defendant in the written statement by pleading that the same is not true and correct. It is also pleaded that the alleged sale of sale of property to

Rimmalapudi Krishnaveni is also false and said Krishnaveni is the daughter of 1st plaintiff’s brother and that the defendant is in possession of northern portion and the plaintiffs are residing in southern portion till today and that the plaintiffs also got filed a suit in O.S.171/2010 by the alleged vendee on the file of Prl. Senior Civil Judge, Kakinada for possession of entire house 19 property, which shows that no portion of the property was delivered to the alleged vendee and the alleged sale is only nominal and sham to defeat the rights of the defendant. In view of these pleadings, though no issue is subsequently framed as observed by the trial Court about whether the plaintiffs disposed of the property by the date of filing of the suit and alienations made by the plaintiffs is true and consideration is passed or not, but the evidence on record proves that the purchasers of the properties under

Exs.A-2, A-3 and B-1 are admittedly relatives of the plaintiff. But because of the said fact only it cannot be held that the sale of the properties under those documents is not proved by the plaintiffs. The defendants specifically pleaded in the written statement as stated earlier that the plaintiff also got filed a suit in O.S.171/2010 by the alleged vendee on the file of Prl. Senior Civil Judge,

Kakinada for possession of entire house property, which shows that no portion of the property was delivered to the alleged vendee and the alleged sale is only nominal and sham to defeat the rights of the defendant. In those facts and circumstances, if the documents are nominal and sham and executed to defeat the rights of defendant, it is for the defendant to place evidence to prove the same, but he did not do so. In the absence of the same, it can be safely held that while the plaintiffs are residing in southern portion, the defendant is residing in northern portion of the house and the plaintiffs not placed evidence to prove that they have been paying rents. But mere non- payment of rents itself cannot be ground to claim that the defendant has proved that the sale of the properties by the plaintiffs is nominal and Exs.A-2,

A-3 and B-1 are nominal and sham documents and they are executed to defeat the rights of defendant. Hence, the defendant failed to place evidence and prove that Exs.A-2, A-3 and B-1 are nominal and sham documents.

18. a) Plaintiffs have to prove that they are entitled for maintenance from the defendants as prayed in the plaint.

b) The trial Court by considering the age of the plaintiffs 1 and 2 as 63 years and 50 years and that the plaintiffs brought up the defendant after 20 adopting him and performed the marriage and given property to an extent of

Ac.1-50 cents and purchased another extent of Ac.0-50 cents to him, granted maintenance of Rs.2,000/- to each of the plaintiffs 1 and 2. There is no dispute in respect of defendant being adopted son of plaintiff and defendant residing in northern portion of the house. Nothing contra is elicited in the cross examination of P.Ws.1 and 2 in order to prove that they are having any income with which they are able to maintain themselves. P.W.1 admitted that after selling properties by himself and his wife they did not purchase any new property they have not proved that they were having any debts by the date of suit. But due to that it cannot be held that they are able to maintain themselves. It is true by the date of partition, Ac.0-50 cents of land is in the name of 1st plaintiff and Ac.0-77 cents of land is in the name of 2nd plaintiff, and from the date of quarrels, the plaintiffs and defendant are separately cultivating their respective lands, but because of that in the absence of evidence to prove that the plaintiffs are having any income from any source, the defendant cannot claim that the defendant is not liable for making payment of maintenance to the plaintiffs.

c) D.W.1 categorically admitted in his cross examination that “The plaintiff in order to disburse the loan sold away his house property as well as landed property. We got partitioned only the landed property. It is true I filed a suit against the plaintiff. In the said suit I averred that the house property is also got partitioned i.e. plaint schedule property in that suit in

O.S.1005/2009 on the file of II Addl. Junior Civil Judge, Kakinada. He also

stated that “The plaintiff got lands of Ac.1-30 cents and yielding paddy is 35 bags under the said land and also the plaintiff got money. As I got four lakhs loan, as such I am unable to maintain my parents. As there is no sufficient agricultural income I borrowed the amount towards maintenance of my family and education of children”. He also stated voluntarily that he is failing to maintain his family. D.W.1 also stated that his adopted father never informed about purchase of Ac.0-50 cents of land in his name.

d) The defendant has not placed any evidence to prove that plaintiffs are having any income to maintain themselves. In the light of above facts stated by D.W.1, it can be safely held that in the absence of evidence placed by defendant that defendant failed to prove that he is unable to maintain his family and he has no sufficient agricultural income, and he borrowed any money for maintenance of his family and education of his children.

19. a) The learned counsel for plaintiff cited the decision in between

T.A.Lakshmi Narasamba, Appellant Vs. T.Sundaramma and others,

Respondent reported in AIR 1982 Andhra Pradesh 88, wherein the Hon’ble High Court held at Paras-64 to 66, 73 & 75 as follows:

64. All the above texts of Hindu Law point out that there is a moral obligation on the father-in-law to maintain the daughter-in-law and that the heirs who inherit the property are liable to maintain the dependants. It is the duty of the Hindu heirs to provide for the bodily and mental or spiritual needs of their immediate and nearer ancestors to relieve them from bodily and mental discomfort and to protect their souls from the consequences of sin. They should maintain the dependants of the persons of property they succeeded. Merely because the property is transferred by gift or by will in favour of the heirs the obligation is not extinct. When there is property in the hands of the heirs belonging to the deceased who had a moral duty to provide maintenance, it becomes a legal duty on the heirs. In our view it makes no difference whether the property is received either by way of succession or by way of gift or will, the principle being common in either case. The reasoning adopted by Ameer Ali, J. in Foolcomari Dashi v. Debendra Nath (AIR 1942 Cal 474) as to how the moral obligation ripens into legal obligation is very logical. We are in agreement with the process of reasoning of Ameer Ali, J. in arriving at the conclusion that the legal liability upon a Hindu heir to provide maintenance to the daughter-in-law exists whether he takes upon the property by intestacy or by will or gift.

65. We are unable to agree with the reasoning of the Bombay High Court. The Bombay High Court mainly proceeded on the ground that the father-in-law has absolute power over his self-acquired property to deal with the same. He has a power to execute will or gift and deprive the daughter-in-law of her maintenance. When the absolute owner has exercised that power and transferred the property under gift or will, the question of enforcing her right against the transferees would not arise at all. The Bombay High Court put it on the ground that the property acquired by valid testamentary disposition is not governed by the rules of the Hindu Law of inheritance and when the power of making such disposition is unrestricted, it is difficult to conceive any consistent ground on which the devisee could be held bound by an obligation from which the testator had power to relieve him and by the bequest had actually relieved him. With great respect, we are not able to agree with this view. The learned

Judges there have not taken into consideration the duty of the Hindu heirs to

provide for the bodily, and mental or spiritual needs of their immediate and nearer ancestors, and also the fact that there was no rigid distinction between the moral duty and legal duty as there is in the modern society. They have also not considered the concept of 'duty' to be performed by the head of the family and that if he died without performing that duty he had committed sin and that the sons have to discharge that obligation to relieve him from that sin. The Madras High Court in Sankaramurthy v. Subbamma (AIR 1938 Mad 914) followed the view of the Bombay High Court expressed in Yamunabai v. Manubai, (1899) ILR 23 Bom 608; Bhagirathibai v. Dwarakabai (AIR 1933 Bom

135) and of the Lahore High Court in Bhagwanti v. Thakur Mal (AIR 1926 Lah 198). but with great respect we are not in agreement with that view.

66. In the result, we are in agreement with the view expressed in Rangammal v. Echammal, (1899) ILR 22 Mad 305; Gopal Chandrapal v. Kadimbini Das (AIR 1924 Cal 364) and Fooloomari Das v. Debendra Nath, (AIR 1942 Cal 474) wherein it was held that the legal liability upon a Hindu heir to provide maintenance to daughter-in-law exists irrespective of the fact whether the heir takes the property by intestacy or under a will or gift.

73. There is yet another aspect that needs to be considered. The head of the family in Hindu society whether he possessed of ancestral property or self- acquired property treats himself as the head of the family and provides maintenance to all the dependants. He voluntarily treats himself as the trustee of the property and fulfils his moral obligation to provide maintenance to the dependants. Even in the absence of any property it was considered that there is a moral obligation on him to maintain the dependants out of his own earnings. Even it is so when the property is in the hands of the heirs of the deceased father-in-law. As a natural corollary, when the property is bequeathed by a will or made over by a gift, the person who takes the property would himself step into the shoes of the deceased and shall discharge the obligations attached to the property during the lifetime of the 'karta'. This no doubt appears to be peculiar to the Hindu system. That is the reason why in Foolcomari Das v. Debendra Nath (AIR 1942 Cal 474) even Ameer Ali, J. expressed the view that:

"If strangers are to be affected the liability must be visualised as something which attaches to the property rather than to the person or capacity of the devisee or donee -- something in the nature of charge or implied trust affecting transferees."

Keeping in view the background of the Hindu Society as it existed and also having regard to the fact that there is no difference between a moral obligation and legal obligation in so far as the head of the family is concerned, the only inference that could be drawn is that the property, even if self-acquired, was treated as trust property for maintenance of the family members including the dependants. To put it in other words, the head of the family visualised that there is a charge attached to the property to maintain the family members. If that is so, the transferees are affected by such charge and they would also constitute as trustees to maintain the dependants when the property is in their hands.

75. Keeping in view the above discussion, we do not find any distinction in so far as the attitude of the donor or testator in transferring the property between the donee or devisee stranger and donee or devisee heir. Accordingly we hold that the donee or devisee strangers are liable for maintenance of the widow ed daughter-in-law.

b) The learned counsel for plaintiffs also cited the decision in between

Kothamasu Nagavenkata Suresh Babu Vs. Kothamasu Suneetha and

others reported in 2009 (2) ALD (Crl.) 972 (AP), wherein the Hon’ble High Court Court held at Paras-64 to 66, 73 & 75 as follows:

8. The Hindu Marriage Act, 1955 codifying the law relating to marriage among Hindus, provided for petitions for restitution of conjugal rights under Section 9, judicial separation under Section 10, divorce on specified grounds under Section 13 and divorce by mutual consent under Section 13-B. The jurisdiction and procedure are prescribed by Chapter V of the Act. Section 24 provides for maintenance pendente lite and expenses of proceedings where it appears to the Court in a proceeding that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding. Section 25 provides for the Court exercising jurisdiction under the Act ordering that the respondent shall pay to the applicant, who may be the wife or the husband, for her or his maintenance and support, such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant having regard to the income and other property of the parties, their conduct and other circumstances of the case. The Court may also create a charge on the immovable property of the respondent 23 and under Sub-section (2) thereof, the Court may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just, if there is a change in the circumstances of either party. Sub- section (3) provides for such variance, modification or rescinding in case of remarriage or unchastity of the wife or the husband. Section 26 provides for interim or final orders in respect of custody, maintenance and education of minor children.

24. Thus, the legal scenario presents the scope for multifariousness in reliefs and proceedings concerning the same rights and liabilities arising out of relationship by matrimony or by blood or by adoption and the grievance herein is against simultaneous prosecution of different proceedings in respect of the same sequence of events, but the same does not appear impermissible in law.

25. The Apex Court in Bhagwan Dutt v. Kamla Devi, AIR 1975 SC 83 (1), pointed out that Section 488 of the Code of Criminal Procedure, 1898/Section 125 of the Code of Criminal Procedure, 1973 and Section 23 or other provisions of the Hindu Adoptions and Maintenance Act, 1956 are not inconsistent as held in Nanak Chand v. Chandra Kishore Aggarwal, AIR 1970 SC 446, and the scope of the two laws is different. It was pointed out that Section 488/Section 125 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties and is intended to serve a social purpose by providing a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not, out of sheer destitution, become a hazard to the well-being of orderly society. It was made clear that as against this, the provisions of the Hindu Adoptions and Maintenance Act, 1956 provide for the enforcement of the rights of Hindu wives or dependents under their personal law.

30. The issue is more or less directly in question in Vallabhaneni Yedukondalu v. Vallabhaneni Nageswaramma,1999 (5) ALD 298=2000 Crl.L.J 333, wherein grant of interim maintenance under Section 24 of the Hindu Marriage Act was held to be in itself not a ground for rejecting a petition filed under Section 125 of the Code of Criminal Procedure. It was pointed out that if passing of an order granting maintenance under Section 24 of the Hindu Marriage Act calls for any alteration of the quantum of maintenance allowed under Section 125 of the Code of Criminal Procedure or justifies its cancellation during the period of pendency of the main proceedings before the Court, it is for the aggrieved to approach under Section 127 of the Code of Criminal Procedure for alteration in the maintenance ordered under Section 125 of the Code of Criminal Procedure.

35. While none of the other legislations referred to in this order appear to debar pursuance of different remedies under different statutes independent of each other either simultaneously or successively, the principles laid down by various precedents referred to also appear to exclude any application of the doctrine of election in its strict rigour to such contingencies, more so in view of the need to interpret the relevant provisions to effectuate the purpose and object of the beneficial legislations and to serve the cause of substantial justice to the persons for whose protection the laws are intended.

36. That this is so is also clear from Section 127 of the Code of Criminal Procedure, which provides in Sub-section (1) for alteration in maintenance or interim maintenance on proof of a change in the circumstances of either party and in Sub-section (2) for cancellation or variance of an order under Section 125 in consequence of any decision of a competent civil Court. Sub-section (3) provides for cancellation of the order in case of a divorcee under specified circumstances. Like the Magistrate having to take into account any decision of competent civil Court under Sub-section (2), the civil Court also shall have to take into account the sum which has been paid to or recovered by a person as maintenance or interim maintenance under Section 125, at the time of making any decree for recovery of any maintenance or dowry, as per Sub-section (4). Section 127 is, thus, explicit that the Magistrate acting under Section 125 or the competent civil Court acting otherwise will have to necessarily take into account any order made by the other or its consequences while granting any relief.

37. The Protection of Women from Domestic Violence Act, 2005 states in Section 36 that the provisions of the Act shall be in addition to and not in 24 derogation of any other law for the time being in force and therefore, the rights, liabilities and proceedings under any other law in force remained unaffected by the Act. Section 26 of the Act states in Sub-section (1) that any relief available under Sections 18 to 22 may also be sought in any legal proceeding before a civil Court, family Court or a criminal Court affecting the aggrieved person and the respondent whether such proceeding was initiated

before or after the commencement of the Act. Thus, the right to reliefs under

Sections 18 to 22 of the Act is made available even in other legal proceedings not prosecuted under this Act before Courts not exercising jurisdiction under this Act.

38. Similarly, Sub-section (2) of Section 26 enables any relief referred to in Sub-section (1) to be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court. Thus, apart from the right to relief under the Act under the specified provisions, the same reliefs are made available in suits or legal proceedings before the civil and criminal Courts also apart from the regular reliefs, which such Courts may grant. The only responsibility placed on the aggrieved person by Section 26 is under Sub-section (3), which made the aggrieved person bound to inform the Magistrate exercising jurisdiction under the Act, of the grant of any relief obtained by the aggrieved person in any proceeding other than the proceeding under the Act. It is, thus, clear that such other proceedings and a proceeding under the Act are independent of each other, becoming relevant to each other only for the purpose of moulding the ultimate relief to be granted respectively by taking note of the relief granted in the other proceedings.

41. Thus, the very nature of such rights, liabilities and proceedings arising out of relationships in matrimony, blood and adoption as illuminated by the legislative scheme, policy, purpose and object, obligates the Court to adopt an interpretation permitting the pursuit of various alternative remedies simultaneously or successively with the only duty for the respective Courts being to note the scope, content and nature of the other proceedings and to mould the grant of respective reliefs with reference to the reliefs granted in such other proceedings or the change of circumstances brought about on the reliefs granted or the subsequent grant of reliefs in the other proceedings. Hence, in respect of such rights and liabilities, the filing, pendency and pursuit of the proceedings under a different provision under a different law are not per se a disabling factor against the prosecution of the proceedings under another provision under another law simultaneously or successively.

42. However, there may be cases where rights and liabilities arising out of relationship in marriage or by blood or by adoption crystallized into a final and irrevocable judicial decision concluding and foreclosing the legal obligations sought to be enforced through the subsequent proceedings, which may militate against the maintainability or continuance of the subsequent proceedings on established principles of law like, res judicata or constructive res judicata or estoppel or that the decision of a civil Court is binding on the criminal Court, and the like. The impact of finality of an earlier adjudication of the same issues on the legality and sustainability of such subsequent proceedings may make them amount to an abuse of the process of the Court. Interference with such proceedings to secure ends of justice will be on an altogether different legal premise, but not on the mere inconvenience of multiplicity of proceedings with the same factual background, if they are otherwise permissible in law.

c) The learned counsel for plaintiffs also cited the decision in between

Pokuru Rangaiah, Appellant Vs. Pokur Chinnaiah and another,

Respondents reported in AIR 1970 Andhra Pradesh 33, wherein the Hon’ble High Court held at Paras-12 and 20 as follows:

12. On the basis of the aforesaid authorities, Mr. Seetharamaiah for the appellant contends that the plaintiff being only the step-son of the 2nd defendant, is not legally bound to maintain the 2nd defendant, is knot legally bound to maintain the 2nd defendant, as he has not taken or is asking for any share or interest in the properties that are to be allotted to his father who has to maintain the 2nd defendant, after the partition. I am entirely in agreement 25 with the legal principle that step-son is not bound to maintain his stepmother, as long as he has not taken or asking for the share of her husband who is alive. It is also well settled that a son has to maintain his mother irrespective of the fact whether he inherits any property or not from his father, as he has, on the basis of relationship, the obligation to maintain his mother who has given life to him; where as the position of a step-son is altogether different. equally so, there can be no dispute with the proposition that the obligation to maintain the Hindu widow depends on the taking of the deceased husband's share in the family estate and to whomsoever her husband's share is allotted, that person will have to maintain her.

20. From the aforesaid discussion, the following principles of law emerge;- (1) where one of the members of an undivided Hindu family ides leaving a widow and other coparceners, the widow shall have a right of maintenance against the surviving coparcener or coparceners for the share or interest of her deceased husband in joint family property which was in his hands. (2) The obligation to maintain a widow depends upon the taking of the deceased husband's share in the family estate and she will have no right to claim maintenance out of the shares that fall to the other members. (3) The right of a Hindu woman or widow to maintenance is founded on relationship. (4) Where there are several groups of sons, the maintenance of their mothers must, so long as the estate remains joint, be a charge upon the whole estate, but when a partition is made, their maintenance is distributed according to relationship, the sons of each mother being bound to maintain her. (5) A step-son has no statutory obligation to maintain his step mother unless any portion or share of his father in the joint family property is allotted, devolved or taken by him, whereas in the case of a son, natural or adopted, and a husband, the primary liability to maintain his mother or wife as the case may be is a matter of personal obligation arising out of relationship, irrespective of their possession of ancestral or self-acquired property. (6) A maintenance holder can obtain a decree for maintenance against a member of the undivided family and create a charge over the joint property when their family was joint. (7) When once her right to maintenance has been declared, defined and reduced to a certainty by a decree of Court, such rights cannot be taken away by any subsequent alienation of such property by, or partition of such property effected amongst, the members of that family. (8) The heart of the matter is that the charge secured in lieu of maintenance by a Hindu woman or a widow on the joint family properties is not defeated by any subsequent alienation or partition of those properties, but it is liable to be enforced in respect of such properties in whosoever hands they may be. (9) Any person including the step-son of a maintenance holder, who was a member of the Hindu joint family at the time of the institution of the maintenance suit and the creation of a charge towards the decree obtained by her on the joint family properties, cannot question her right over such properties, in case such properties or any portion of the same are allotted to him in a subsequent partition or devolved on him. (10) The charge created on those properties prior to the division of the family will be subsisting and continue till the lifetime of the maintenance holder and the rights of any third party, if any, in such priorities will be only subject to the charge created in her favour.

d) As per the principles laid down in the above decisions, as observed by the trial Court there is personal obligation to the defendant though he is adopted son to maintain old parents in view of the relationship quite independent to that of possession of any property either ancestral or acquired by the plaintiffs. In those facts and circumstances, in the light of the fact that the plaintiffs are unable to maintain themselves and as the defendant has got 26

Ac.1-50 cents of land got under partition and another Ac.0-50 cents of land given by the plaintiff to him, it can be reasonably presumed by considering the age of defendant being 25 years by the date of suit, and he is under obligation to maintain the plaintiffs since they are unable to maintain themselves from out of their own earnings or other property as the plaintiffs proved that they are not having any income of their own. Because the plaintiffs failed to prove that they were having debts either by the dates of Exs.A-2, A-3 and B-1 or by the date of filing of suit, it cannot be held that the defendant is not liable to pay maintenance to them.

e) The trial Court granted Rs.2,000/- each to the plaintiffs 1 and 2 by holding that the same is reasonable by observing that whether the defendant has got income or not, he has obligation. In the light of the fact of defendant possessing properties and failed to prove he is not having any obligation and unable to maintain himself and has no income, the amount of Rs.2,000/- granted to each of the plaintiffs 1 and 2 as maintenance amount liable to be paid by defendant is found as reasonable considering the ages of plaintiffs and their requirement for the daily needs, more so by keeping in view of cost of living and property given by plaintiffs to defendant and that the defendant is an adopted son of them. Hence, the plaintiffs have proved that they are unable to maintain themselves and defendant got landed property and getting income sufficient to pay maintenance to the plaintiffs. The plaintiffs have proved that 1st plaintiff has taken housing loan for the purpose of constructing house but failed to prove that he took any loan for performing the marriage of defendant. The plaintiff also failed to prove that they were having any debts either by the dates of Exs.A-2, A-3 and B-1 or by the date of filing of suit. The plaintiffs proved that they are entitled to seek maintenance from the defendant. The plaintiffs have proved that they sold properties under Exs.A-2,

A-3 and B-1, but the same is not for discharging the debts. The plaintiffs also proved that they are unable to maintain themselves, since they do not have any income and the defendant is liable to pay maintenance to them even though they have not proved that they were having debts by the date of suit 27 and they sold away the properties for discharging the debts. The plaintiffs are entitled for the reliefs granted by the trial Court of Rs.2,000/- each per month as maintenance. Hence, the decree and Judgment dated 28.9.2012 in

O.S.No.625/2010 on the file of I Additional Junior Civil Judge’s Court,

Kakinada are confirmed. Accordingly, point Nos.1 to 7 are answered. Basing on the answers to Point Nos.1 to 7, the point No.8 is answered.

19. POINT No.8 : In the result, the appeal is dismissed with costs, confirming the decree and judgment dated 28.9.2012 in O.S.No.625/2010 on the file of I Additional Junior Civil Judge’s Court, Kakinada.

Dictated to the Stenographer Grade-II, transcribed by him, corrected

and pronounced by me in the open court this the 29 th day of January, 2018.

III ADDL. DISTRICT JUDGE,

KAKINADA.

No oral or documentary evidence is adduced on either side.

III A.D.J.

FAIR COPY OF JUDGMENT

IN A.S.199/12, DT.29.01.2018

OS/100030/2014

Kunapareddy Kameswara Rao vs Kanakala Satyaveni

09 Feb 2018

IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE

EAST GODAVARI AT KAKINADA

Present: SRI N.MALYADRI III Additional District Judge

Friday, the 9th Day of February, 2018

O.S.No.30 of 2014

Between:

Kunapareddy Kameswara Rao ... Plaintiff.

AND

Kanakala Satyaveni ... Defendant.

This suit coming on 17.10.2017 for final hearing before me in the presence of Sri O.Sudhakar, Advocate for Plaintiff of Sri S.David Samuel,

Advocate for Defendant and the matter having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

This suit is filed to pass a decree in favour of the plaintiff for specific performance of agreement of sale dt.8.9.2013 directing the defendant to execute the necessary registered sale deed conveying the plaint schedule property in favour of the plaintiff at his expenses as per the terms of the agreement and put the plaintiff in possession of the plaint schedule property and to receive of sale consideration and in case of failure of defendant for execution of sale deed, the Court to execute the registered sale deed on behalf of defendant conveying the plaint schedule property in favour of the plaintiff as per the terms of agreement of sale and alternatively if the Court comes to a conclusion that relief of specific performance cannot be granted, to pass a decree for Rs.2,11,046/- with subsequent interest @24% p.a. on

Rs.2,00,000/- being advance sale consideration paid by the plaintiff to the defendant from the date of decree till repayment with a charge over the plaint schedule property and for costs of the suit.

2. For the sake of brevity and convenience, The Code of Civil Procedure 1908, The Indian Evidence 1872, The Specific Relief Act, 1963 and The

Limitation Act, 1963 hereinafter are referred as C.P.C, E.Act, S.Act and L.Act.

3. The brief and relevant facts pleaded in the plaint presented under Order

VII Rules 1 and 2 and Section 26 of The Civil Procedure Code are as follows:

a) The defendant is the owner of the plaint schedule property. The defendant for the purpose of her necessities and informing that she is the exclusive owner of the plaint schedule property and the property is free from encumbrances and it is in her possession, put the plaint schedule property for sale and gave Photostat copy of her title deed to the plaintiff. The plaintiff believed the words of the defendant offered highest market price of

Rs.16,50,000/- on 8.9.2013 and the defendant agreed for the same and after fully accepting the terms executed an agreement of sale in favour of the plaintiff on 8.9.2013 after receiving a sum of Rs.2,00,000/- as advance amount which is filed herewith. As per the terms of agreement of sale the balance of the sale consideration is agreed to be made ready within a week from the date of opening of sub registrar’s office, Tallarevu Since the Sub-

Registrar’s office was not functioning due to the strike of NGO’s on account of

Samaikyandhra agitation. Further the defendant agreed to remove the floor mill situated on the western side of the schedule property on or before 14.09.2013 and after such removal, the plaintiff has to discharge the loan in

Andhra Bank, Tallarevu in the name of the defendant in presence of elders.

The defendant further agreed to put the plaintiff in vacant possession of the plaint schedule property on that day for enabling the plaintiff to get repairs of the plaint schedule property after getting the same measured up to the wall situate to the east and execute a registered sale deed or sale deeds in favour of the plaintiff or his nominees at the expense of the plaintiff and to receive the balance of sale consideration, if any after discharge of the bank loan.

b) As per the terms of agreement of sale, the defendant is under the obligation to remove the floor mill situated on the western side on or before 14.09.2013 and the plaintiff has to discharge the Andhra Bank loan after removal of the floor mill, on intimation from the defendant. The defendant has not removed the floor mill even after 14.09.2013 and committed violation 3 of the terms of agreement sale. Thereupon the plaintiff got issued a registered legal notice dated 23.09.2013 to the defendant calling upon her to fulfill the terms of agreement of sale and that he is ready and willing to perform his part of contract. The defendant received the said notice on 24.09.2013 but did not remove the floor mill and even after the Sub Registrar’s Office was opened on 19.10.2013 and the request made by the plaintiff to executed sale deed, the

Defendant has not co-operated to execute necessary sale deed and the defendant got issued a belated reply notice dated 21.10.2013 with false and untenable allegations with all contradictory statements. The plaintiff is always continuously ready and willing to perform his part of the contract and by keeping ready the balance of sale consideration and the money necessary for purchase of stamps and to defray registration charges and even now he is ready to perform his part of contract to obtain necessary sale deed. Therefore the plaintiff is entitled for specific performance of the agreement of sale 08.09.2013. Thus the defendant committed breach of terms of agreement of sale in favour of the plaintiff and the plaintiff is entitled for specific performance of the agreement of sale. Hence, the suit.

c) If for any reason the Court comes to a conclusion that the plaintiff is not entitled for specific performance of the agreement of sale, the plaintiff in the alternative prayed this court to pass a decree for refund the advance amount with interest at 24% p.a. with a charge on the plaint schedule property.

4. The defendant filed written statement under Order VIII Rule 1 of C.P.C.

and the brief and relevant facts pleaded in it are as follows:

a) The various allegations stated in the plaint are neither true nor valid under law. The plaintiff has to strictly prove all the allegations which are not specifically admitted herein.

b) The defendant is absolute owner of the plaint scheduled property it is also true that the defendant is in absolute position and enjoyment of the scheduled property. It is true that defendant put the plaint schedule property 4 for sale and the plaintiff agreed to purchase the same for a sale consideration of Rs.16,50,000/- subject to certain terms and conditions put by the defendant. It is false to allege that the defendant executed an agreement of sale in favour of the plaintiff on 8.9.2013 after receiving a sum of

Rs.2,00,000/- after fully accepting the terms and condition written in the alleged agreement of sale. In fact the defendant was not read over the terms and conditions of the sale and she was induced to sign on the same. It is true that the as per the terms and conditions of the alleged sale agreement, the balance sale consideration has to be made ready within a week from the date of opening of the Sub Registrar office. It is true that the defendant has to remove the floor mill in the schedule property on or before 14.09.2013 and this defendant has removed the floor mill before 14.09.2013 and taken photographs of the same with date also. It is false to allege that the plaintiff has to discharge the bank loan of the defendant after removal of the mill. It is false to allege that the defendant further agreed to put the plaintiff in vacant possession of the plaint schedule property on that day for enabling the plaintiff to get repairs of the plaint schedule after getting same measured up to the wall situated to the east and execute a registered sale deed or sale deeds in favour of the plaintiff or his nominees at the expenses of the plaintiff and to receive the balance of sale consideration is any after discharge of the bank loan is not correct.

c) The defendant removed the mill and intimated the same to the plaintiff on or before 14.9.2013. The plaintiff got issued a registered notice to the defendant but with all false and untenable allegations on 23.9.2013. The defendant received notice and got issued are reply with true and correct facts.

The plaintiff is not entitled either for specific performance of agreement of sale dt.18.9.2013 or for any alternative relief.

d) The defendant is the absolute owner of the plaint scheduled property, and that defendant is in absolute possession and enjoyment of the schedule property. The defendant has obtained loan from Andhra Bank, Tallarevu 5

Branch, and the said bank was insisting defendant for discharge of the loan and fixed date for discharge as 14.09.2013 otherwise to take action under securitization act.

e) So under such circumstances defendant proposed to sell the schedule property referred in the notice and there upon the sale bargain between plaintiff and defendant fixed at Rs.16,50,000/- after negotiation with plaintiff.

As per the terms and conditions, the plaintiff has to pay Rs.2,00,000/- towards advance at the time of negotiations and settlement of bargain and the remaining balance of sale consideration of Rs.14,50,000/- shall be paid by plaintiff within one week of opening of Sub-Registrars office and thereupon defendant has to execute regular sale deed with plaintiff’s expenses and defendant has to deliver possession of the plaint schedule property at the time or registration.

f) The further condition is that if the Sub registrar office, Tallarevu is not opened to execute regular sale deed, the plaintiff has to discharge the entire loan amount due by defendant to Andhra Bank on or before 14.9.2013 by which time on plaintiff’s payment, the defendant has to remove the floor mill situated on the west of the plaint schedule property and on fulfilling the terms and conditions by plaintiff i.e. measuring the property etc, defendant has to execute regular sale deed. So the time is essence of contract and plaintiff shall fulfill the above terms and conditions.

g) The allegations in the plaint that defendant executed an agreement of sale on 8.9.2013 is absolutely false. The plaintiff by misrepresentation and playing fraud taking advantage of the innocence and gullible attitude of defendant, the plaintiff obtained signatures while there is shut down of electricity due power cut at the time of negotiations as there was specified and announced power cut in entire East Godavari and in fact the entire state of

A.P., without disclosing the contents or read over of the same to defendant and the same is not valid and bending on defendant. At the time of alleged payment of Rs.2,00,000/- on 8.9.2013, the plaintiff represented that the same 6 is only receipt. For that even if plaintiff created any document styling it as if agreement, since it is not registered, the same is not valid under the law, and the said document if any is non-exist before the eye of law for want of stamp duty under Sec.17 of Registration Act.

h) The time is essence of the contract and the plaintiff grossly violated the terms and conditions of the contract and the plaintiff has not discharged the Andhra Bank loan on behalf of defendant before the agreed date i.e.,

before 14.9.2013.

i) In fact having highest regard and belief on plaintiff, the defendant got removed the floor mill even by 13.09.2013.

j) In spite of severe pressure made by the bank to defendant, and in spite of the repeated requests and demands made by defendant, the plaintiff who is adamant has grossly violated the terms and conditions of the contract and flouted the conditions of contract.

k) The contract came to an end and the plaintiff has no right to demand the defendant to fulfill the terminated contract under law.

l) The advance amount of Rs.2,00,000/- is already forfeited and more over plaintiff is liable to pay damages for causing mental agony and inconvenience to defendant.

m) There is no privity of contract in existence between plaintiff and defendant, and the contract if any was long bank elapsed and terminated under law as detailed above.

n) The defendant therefore prays to dismiss the suit with exemplary costs.

5. Basing on the above pleadings, the following issues are settled for trial:

1) Whether the agreement of sale dt.8.9.2013 is duly executed and plaintiff paid amount under the agreement as claimed?

2) Whether the time is essence of the contract?

3) Whether the plaintiff is ready and willing to perform his part of contract?

4) Whether the plaintiff is entitled to specific performance of agreement of sale?

5) In alternative, Whether the plaintiff is entitled to refund advance amount with interest?

6) To what relief?

6. During trial, the plaintiff examined himself as P.W.1 and examined the scribe and attestor of agreement of sale dt.8.9.2013 as P.Ws.2 and 3 and got marked Exs.A-1 to A-6. The defendant examined herself as D.W.1 and got marked Exs.B-1 to B-4.

7. a) The learned counsel for plaintiff submits the brief and relevant facts pleaded in the plaint and written statement of defendants referred supra.

b) The learned counsel for plaintiff submits that the evidence of P.Ws.1 to 3 and the admissions of D.W.1 coupled with the contents of Exs.A-1 to A-6 and Exs.B-1 to B-4 and in the light of the admissions in the written statement and as per the terms of Ex.A-1 agreement of sale which is executed after receiving a sum of Rs.2,00,000/- as advance which is admitted by defendant and the defendant agreed for the terms of Ex.A-1 as per which the plaintiff has to make ready the balance of sale consideration within one week from the date of opening of Sub Registrar’s office, Tallarevu since the same was not functioning due to the strike of NGO’s on account of Samaikyandhra agitation and also to remove the floor mill situated on the western side of the schedule property on or before 14.9.2013 and on information of the same by defendant to the plaintiff, the plaintiff has to discharge the loan in Andhra Bank,

Tallarevu in the name of defendant in the presence of elders.

c) The learned counsel for plaintiff submits that on 19.10.2013 the strike of NGOs on account of Samaikyandhra agitation was stopped, but by that date, the defendant did not remove the floor mill though she has to remove it on or before 14.9.2013 resulting the plaintiff got issued Ex.A-2 notice dt.23.9.2013 and the defendant issued reply notice with false 8 allegations under Ex.A-4 after waiting long time subsequent to receipt of

Ex.A-2 notice.

d) The learned counsel for plaintiff submits that neither there is any suggestions to P.Ws.1 to 3 nor the defendant placed any evidence to prove any of the defences except examining herself as D.W.1 and marking photos as

Exs.B-1 to B-3, more so in the light of the fact that husband of D.W.1 is the attestor of Ex.A-1, but not examined and hence, the defendant miserably failed to prove any of the defences including any misrepresentation and playing fraud by the plaintiff taking advantage of innocence and gullible attitude of the defendant by obtaining signatures when there is shut down of electricity due to power cut at the time of negotiations as there was specified and announced power cut in entire East Godavari and in fact the entire state of A.P., without disclosing the contains or read over to defendant is not valid and binding on defendant by representing that the same is only a receipt and that the plaintiff violated the terms and conditions of Ex.A-1 agreement of sale by not performing his part of contract of sale.

e) The learned counsel for plaintiff submits that if really the defendant removed the floor mill by 13.9.2013, the defendant should have placed evidence to prove the same and mentioned in the reply notice immediately after receipt of Ex.A-2 notice but did not do so.

f) The learned counsel for plaintiff submits that the defendant has taken contra pleadings of admitting execution of Ex.A-1 and receiving of

Rs.2,00,000/- and further pleading that the plaintiff obtained signatures by misrepresenting that it is only a receipt when there was shut down of electricity due to power cut, but failed to prove any of the defences and thus the plaintiff has proved that he is entitled for discretionary relief of specific performance of contract of sale as prayed for and hence, the suit may be decreed with costs as prayed for.

8. a) The learned counsel for defendant submits the brief and relevant facts pleaded in the plaint and written statement of defendant referred supra.

b) The learned counsel for defendant submits that the defendant removed the floor mill by 13.9.2013 even though as per Ex.A-1 it has to be removed by 14.9.2013 and the said fact is informed to the plaintiff by defendant orally and later through Ex.A-4 notice dt.21.10.2013 and P.Ws.1 and 3 also admitted that there is no floor mill in existence in the schedule property.

c) The learned counsel for defendant submits that the plaintiff has to discharge the loan of Andhra Bank on behalf of defendant before 14.9.2013 and thus the time is essence of contract, but the plaintiff grossly violated the terms and conditions as admittedly Andhra Bank loan is not discharged.

d) The learned counsel for defendant submits that the plaintiff did not deposit balance amount liable to be paid by plaintiff to defendant and as such not entitled for the suit reliefs.

e) The learned counsel for defendant submits that as the plaintiff did not perform his part of contract of sale, the advance amount of Rs.2,00,000/- is already forfeited, and more over plaintiff is liable to pay damages for causing mental agony and inconvenience to defendant.

f) The learned counsel for defendant submits that the plaintiff miserably failed to prove that he performed his part of contract of sale as per Ex.A-1 agreement of sale, but he did not do so and as such not entitled for the discretionary relief of specific performance of contract of sale and further even though he proved execution of Ex.A-1 still he is not entitled for the said reliefs and at the most he is entitled to refund of Rs.2,00,000/- with bank interest as defendant performed her part of contract of sale by removing floor mill and the plaintiff did not comply with Ex.A-1 terms and neither paid the balance amount to defendant nor deposited into the Court and hence, the suit may be dismissed with costs.

9. ISSUES 1 TO 5 : These issues 1 to 5 are interrelated very closely to each other. Hence, in order to avoid the repetition and discussion of the 10 evidence and for the sake of brevity and convenience they are discussed in common.

10. The plaintiff to prove the suit claims examined himself as P.W.1 and the scribe and attester of agreement of sale as P.Ws.2 and 3. The defendant to disprove the suit claims examined himself as D.W.1. P.W.1 and D.W.1 being parties to the suit deposed in their respective affidavits filed which are treated as chief examination as per their respective pleadings, claims and contentions and cases. P.Ws.2 to 3 corroborated the evidence of P.W.1 in all material aspects. Admittedly, the husband of defendant is attestor of Ex.A-1 and he is not examined by defendant.

11. a) P.W.1 got marked Exs.A-1 to A-5, which are agreement of sale dt.8.9.2013 executed by defendant; office copy of legal notice dt.23.9.2013 got issued by plaintiff; postal acknowledgment, reply notice dt.21.10.2013 issued by defendant; encumbrance certificate dt.13.11.2013 and Photostat copy of Regd. Sale deed dt.8.7.1991 in favour of defendant. D.W.1 got marked Exs.B-1 to B-4, which are photographs with CD.

b) Exs.B-1 to B-4 are marked through D.W.1 subject to objection by the learned counsel for plaintiff that they are not relevant and defendant has to prove the same. The learned counsel for defendant submits that in order to show location and value of the plaint schedule property, these documents are necessary to decide the issue in the suit. D.W.1 also marked C.D of Exs.B-1 to

B-3 as Ex.B-4. Hence, in the facts and circumstances, the objection has no force of law, since these photos relate to the plaint schedule property. Though photographer is not examined, in the light of the evidence of D.W.1, it can be safely held that the defendant has proved photos Exs.B-1 to B-3 which are loaded in Ex.B-4 are that of plaint schedule property. In those facts and circumstances, Ex.B-1 to B-4 are relevant and proved by defendant and they can be looked into.

c) P.W.1 stated in his cross examination that the defendant has to remove the floor mill on or before 14.9.2013 and hand over vacant plaint schedule property to him.

d) P.W.2 stated in his cross examination that he scribed several documents relating to plaintiff.

e) Except the above elicited in the cross examination of P.Ws.1 and 2, nothing contra is elicited in the cross examination of P.Ws.1 to 3 to prove that the plaintiff by misrepresentation and playing fraud taking advantage of the innocence and gullible attitude of defendant the plaintiff obtained signatures while there is shut down of electricity due power cut at the time of negotiations as there was specified and announced power cut in entire East

Godavari and in fact the entire state of A.P., without disclosing the contains or read over to defendant is not valid and bending on defendant and that at the time of alleged payment of Rs.2,00,000/- on 8.9.2013 plaintiff represented the same is only receipt.

12. a) D.W.1 in the cross examination stated that “My husband is now sitting in the Court. My husband was present at the time of entering into agreement to sell the plaint schedule property by me to plaintiff. I executed

Ex.A.1 in pursuance of agreement between me and P.W.1 and handed over

Ex.A.6 to him. The witness adds that she did not read the contents of Ex.A.1.

My husband is one of the attestor out of 4 attestors of Ex.A.1. The witness adds that Ex.A.1 was brought when there was no electricity and she signed in it at the request of P.W.1 without reading the contents of the same. I had taken Rs.2,00,000/- as advance at the time of agreement of sale. It is true that at the time of execution of Ex.A.1 agreement the Sub Registrar Office at

Thallarevu was closed due to the agitation in respect of Samykyandhra. I do not know whether it was agreed at the time of execution of Ex.A.1 that within one week after reopen of the Sub Registrar Office at Thallarevu, sale deed has to be registered by me. It was agreed at the time of execution of Ex.A.1 that

I have to remove the flour mill in the schedule property before 14.9.2013.

The witness adds that she vacated the flour mill by 13.9.2013. It is also agreed at the time of execution of Ex.A.1 that the amount of Rs.12,00,000/- due to Andhra Bank by me for the loan taken by me has to be paid by P.W.1 by 14.9.2013 after vacating the flour mill by me. The sale consideration amount is Rs.16,50,000/-. I have to inform before 14.9.2013 to P.W.1 about vacating of flour mill by me. The witness adds that herself and her husband informed to P.W.1 immediately after vacating the flour mill by 13.9.2013”. She also stated that “I gave instructions to my advocate and got mentioned in my chief affidavit that Ex.A.1 was brought when there was no electricity and I signed in it at the request of P.W.1 without reading the contents of the same.

I know about the suit reliefs. My husband gave instructions to my Advocate for drafting the written statement on my behalf. It is true that I changed the advocate of me after filing the written statement on my behalf”.

b) In the light of the above facts stated by D.W.1 and as the husband of defendant who is attestor of Ex.A-1 is not examined and there is no evidence of any independent witness contra to the contents of Ex.A-1 and as nothing contra is elicited in the cross examination of P.Ws.1 to 3 regarding execution of Ex.A-1 after receiving of Rs.2,00,000/- as advance by the defendant and by considering the pleadings of both parties about the execution of Ex.A-1 after receiving Rs.2,00,000/- by defendant, it can be safely held that the defendant miserably failed to prove that the plaintiff created Ex.A-1 by misrepresenting the same as only receipt taking advantage of shut down of electricity due to power cut at the time of negotiations and as such there is no force in the contention of the defendant that though Ex.A-1 is styled as agreement since it is not registered, the same is not valid and the law and the said document if any is nonest before the eye of law for want of stamp duty. In view of that, it can be safely held that the agreement of sale dt.8.9.2013 is duly executed and plaintiff paid amount under the agreement as claimed of Rs.2,00,000/- at the time of execution of Ex.A1 as advance sale consideration.

13. a) The learned counsel for plaintiff cited the decision in between

Arimanda Vijaya Bhaskara Reddy Vs. Manukonda Rami Reddy (died) by

LRs, reported in 2014 (5) ALD 374 (D.B), in which the Hon’ble High Court held at Para-19 as follows:

“19. Apart from deposing as PW-1, the plaintiff has examined the PWs 2 and

3. PW-2 is the scribe of Ex.A-1, and PW-3 is one of the witnesses to Ex.A-1. Both of them stated that the 1st defendant, i.e. DW-1, has signed upon the document after receiving the consideration. Nothing was elicited from either of the witnesses. The trial Court found that DW-1 is a literate person, and he signed the document only after going through the contents thereof. Therefore, the plea of the 1st defendant that he signed the document under the impression that it is a deed of mortgage; cannot be accepted.”

b) As per the principles laid down in the above decision, in the present suit also in the facts and circumstances in view of the evidence of P.Ws.1 to 3 out of which P.W.2 is scribe and P.W.3 is attestor of Ex.A-1, who corroborated the evidence of P.W.1 in respect of execution of Ex.A-1 and the admissions of defendant as D.W.1 and pleadings in the written statement, as stated earlier in the absence of evidence of husband of defendant who is not examined though he is attestor of Ex.A-1, it can be safely held that the agreement of sale dt.8.9.2013 is duly executed and plaintiff paid amount of Rs.1,00,000/- under the agreement as claimed.

14. a) The plaintiff is claiming that he is ready and willing to perform his part of contract of sale and defendant failed to do so even after demands for executing of registered sale deed by receiving balance sale consideration offered by him. The evidence of P.W.1 clearly shows that he knows about

Andhra Bank loan of defendant and he went to defendant along with cash in order to discharge the bank loan of defendant and he has documents to show that he borrowed monies by executing two pronotes. He admitted of his not pleading in the plaint and also not deposing in the chief affidavit about the particulars and details of monies borrowed by him by executing two pronotes.

He also admitted that the defendant has got two daughters and they are yet to be married.

b) P.W.2 also stated that it is true that the defendant sold the property for performing marriage of her daughters and also to discharge the Andhra

Bank loan.

c) P.W.3 stated in his cross examination that “It is true that defendant has got two daughters of marriageable age. It is true that defendant offered to sell the plaint schedule property in order to discharge the Andhra Bank loan of defendant”.

d) D.W.1 in her cross examination stated that “It is true that at the time of execution of Ex.A.1 agreement the Sub Registrar Office at Thallarevu was closed due to the agitation in respect of Samykyandhra. I do not know whether it was agreed at the time of execution of Ex.A.1 that within one week after reopen of the Sub Registrar Office at Thallarevu, sale deed has to be registered by me. It was agreed at the time of execution of Ex.A.1 that I have to remove the flour mill in the schedule property before 14.9.2013. The witness adds that she vacated the flour mill by 13.9.2013. It is also agreed at the time of execution of Ex.A.1 that the amount of Rs.12,00,000/- due to

Andhra Bank by me for the loan taken by me has to be paid by P.W.1 by 14.9.2013 after vacating the flour mill by me. The sale consideration amount is Rs.16,50,000/-. I have to inform before 14.9.2013 to P.W.1 about vacating of the flour mill by me. The witness adds that herself and her husband informed to P.W.1 immediately after vacating the flour mill by 13.9.2013”.

She also stated that “There is no documentary evidence to prove that I vacated the flour mill by 13.9.2013. The witness adds that herself and her husband informed orally to P.W.1 immediately after vacating the flour mill by 13.9.2013. It is true that I received the legal notice covered by Ex.A.2 under

Ex.A.3 acknowledgement of me but I don’t remember the date. After showing the Ex.A.3 acknowledgment to witness by the learned counsel for the plaintiff, the witness stated that she received Ex.A.2 notice on 24.9.2013 under Ex.A.3 acknowledgment. I do not know whether the Sub Registrar Office, Thallarevu was opened on 19.10.2013 after call off of Samykyandara Agitation”. She also 15 stated that “I do not know whether there is any forfeiture clause in Ex.A.1 by mentioning that the amount of Rs.2,00,000/- paid by P.W.1 will be forfeited in case if he doesn’t perform his part of contract of sale”. She further stated that “I took loan from Canara Bank and discharged the loan of me taken from

Andhra Bank. I sold out some other property of me and performed the marriages of my 2 daughters”.

e) The above facts stated by P.Ws.1 to 3 and D.W.1, in the light of the fact that the plaintiff got issued a notice under Ex.A-2 received by the defendant under Ex.A-3 acknowledgment and in the absence of evidence of husband of D.W.1 as he is not examined though he is an attestor of Ex.A-1, and claimed as the person who gave instructions to file written statement on behalf of defendant, it is proved that though D.W.1 received Ex.A-2 notice on 21.9.2013, she issued reply notice under Ex.A-4 on 21.10.2013 without mentioning in it about herself and her husband orally informing to plaintiff of removing of floor mill on 13.9.2013. In Ex.A-2 notice dt.23.9.2013 the plaintiff demanded the defendant to remove floor mill and comply with Ex.A-1 terms and conditions within a week. But as stated earlier, the reply notice is given under Ex.A-4 dt.21.10.2013. The long silence of defendant in the absence of evidence of her husband clearly prove that defendant has not performed her part of contract of sale even though the plaintiff demanded for the same under

Ex.A-2 to do so. In those facts and circumstances it can be safely held that the evidence of defendant that she vacated the floor mill by 13.9.2013 and orally informed the same to P.W.1 is not believable and she failed to prove of herself vacating the floor mill by 13.9.2013 and informed same to P.W.1.

15. As per Ex.A-1 within one week of opening of Tallarevu Sub Registrar

Office, the plaintiff has to pay balance amount of Rs.14,50,000/-. The defendant is claiming that the time of essence of contract and the plaintiff violated the terms and conditions of contract of sale. In Ex.A-1 it is mentioned that the defendant has to get the balance amount of Rs.14,50,000/- within one week from the plaintiff and thereafter she has to execute the registered 16 sale deed. It is also mentioned that the defendant has to remove the floor mill

before 14.9.2013 and immediately after removing the floor mill the plaintiff

agreed through elders to discharge the loan of defendant taken in Tallarevu

Andhra Bank. The defendant miserably failed to prove that she removed floor mill before 14.9.2013. In those facts and circumstances, the defendant cannot claim that the plaintiff is not ready and willing to perform his part of contract of sale.

16. The evidence of P.Ws.1 to 3 and D.W.1 and contents of Exs.B-1 to B-4 in order to prove that there is escalation of prices of the value of the suit property no way effects the claim of plaintiff in view of defendant failure to prove that she removed the floor mill before 14.9.2013. In those facts and circumstances though the plaintiff has not placed evidence of independent witness to prove on what date exactly the Sub Registrar Office of Tallarevu is opened, but he categorically stated that it was opened on 19.10.2013 in respect of which D.W.1 stated that she does not know whether the same is opened on that day or not. Irrespective of the date of opening of Tallarevu

Sub Registrar office, since the defendant failed to prove that she removed floor mill before 14.9.2013, she is not entitled to claim that she is ready and willing to perform her part of contract of sale and the plaintiff has not done so and as such she is not liable for the suit reliefs.

17. a) The learned counsel for plaintiff cited the decision in between Zarina Siddiqui Vs. A.Ramalingam @ R.Amarnathan, reported in 2015 (1) ALD 170 (SC), in which the Hon’ble Supreme Court held at Paras-25, 34, 35, 37 to 39 as follows:

“25. It is well settled that remedy for specific performance is an equitable remedy. The Court while granting decree of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that Court's discretion to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles.

34. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and 17 evidence and misled the Court then such discretion should not be exercised by refusing to grant specific performance.

35. In the instant case, as noticed above, although defendant no.2 held a registered power of attorney on behalf of defendant no.1 to sell and dispose of the property, but the defendants not only made a false statement on affidavit that the power of attorney had authorized the second defendant only to look after and manage the property but also withheld the said power of attorney from the Court in order to misguide the Court from truth of the facts. Further, by registered agreement the defendants agreed to sell the suit premises after receiving advance consideration but they denied the existence of the agreement in their pleading. Such conduct of the defendants in our opinion, disentitle them to ask the Court for exercising discretion in their favour by refusing to grant a decree for specific performance. Further, if a party to a lis does not disclose all material facts truly and fairly but states them in distorted manner and mislead the Court, the Court has inherent power to exercise its discretionary jurisdiction in order to prevent abuse of the process of law.

37. As held by this Court time and again, efflux of time and escalation of price of the property by itself cannot be a valid ground to deny the relief of specific performance. But the Court in its discretion may impose reasonable conditions including payment of additional amount to the vendor. It is equally well settled that the plaintiff is not to be denied specific performance only on account of phenomenal increase of price during the pendency of litigation.

38. The defendant-respondent alternatively pleaded in the written statement that even at the relevant time the price of the suit property was Rs.3,00,000/- when the said agreement was executed for Rs.40,000/- only. But on the other hand it has come in evidence that against Rs.40,000/-, the plaintiff-appellant has paid a total amount of Rs.65,000/-.

39. Be that as it may, in the facts and circumstances of the case and considering the phenomenal increase in price during the period the matter remained pending in different courts, we are of the considered opinion that impugned order under appeal be set aside but with a condition imposed upon the appellant (plaintiff) to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lacs) in addition to the amount already paid by the appellant to the respondent. On deposit in trial court of aforesaid amount by the appellant, for payment to the respondent, within three months from today, the respondent shall execute and register the sale deed in favour of the plaintiff in respect of the suit property. In the event the aforesaid condition of deposit of Rs.15 lacs is fulfilled within the time stipulated hereinabove but the defendant fails to comply with the direction, then the appellant shall be entitled to execute the decree in accordance with the procedure provided in law.”

b) The learned counsel for defendant cited the decision in between Palika Satyavathi Vs. Singireddy Ramana Murthy, reported in 2002 (4) ALT 400, in which the Hon’ble High Court held at Paras-14 to 28 as follows:

“14. From the agreement of sale as well as the plaint it is abundantly clear that the appellant offered the suit schedule property for sale to the respondent to clear the debts and to meet the other expenses. Obviously that was the reason why time of three months was stipulated for completion of the entire transaction. In this background if we see the pattern of payments made by the respondent-plaintiff, it would clearly demonstrate that he was either not willing or not ready to make the payments. After paying Rs. 500. 00 towards advance on the date of agreement, the following are the payments made by him. 10-7- 1978 - Rs. 1,000/-; 15-8-1978 - Rs. 3,000/-; 18-8-1978 - Rs. 1,000/-; 26-8- 1978 - Rs. 500/-; 17-9-1978 - Rs. 1,000/-; 15-6-1979 - Rs. 4,000/-.

15. Except the amount of Rs. 500. 00 , the rest of the amount was paid after the last date stipulated for payment of the balance of consideration. While receiving the payment of Rs. 4,000. 00 on 15-6-1979 it was clearly stipulated that the time is extended up to 1-10-1980. Neither there is pleading nor 18 evidence from the respondent to show that he offered to pay the balance of consideration within that time i. e. , on or before 1-10-1980.

16. Now it needs to be seen as to what was the seriousness of the effort made by the respondent to pay the balance of consideration through his notice Ex. A-5. In this notice, after referring to the factum of execution of agreement of sale and payment made from time to time, he made three significant statements. (a) That the appellant made him to believe that the property is free from any encumbrance and the title for the same is very clear. (b) On verification, it was found that third party claims are existing in respect of said property and litigation is pending. (c) The appellant should transfer and convey the property "free from encumbrances and without any litigation" within two months.

17. The intention of the respondent in issuing this notice was not too far to see. He was having in mind a suit O. S. No. 189 of 1979 which was filed by some persons against the appellant herein in respect of said property and says that as long as that suit is pending the property cannot be said to be free from litigation. At the same time he wanted the appellant to convey the property free from litigation within two months. It is a matter of record that O. S. No. 189 of 1979 referred to by the respondent, was filed much subsequent to the dates stipulated for payment of the balance of consideration. It is also a matter of record that the said suit ended in favour of the appellant only on 24-7-1989. The decree was marked as Ex. B-4. The appellant as well as respondent were parties to the said suit. Even on the showing of the respondent, as long as the said suit was pending, the appellant could not have conveyed the property in the manner desired by the respondent.

18. The Hon'ble Sureme Court observed that whenever any party insists on new conditions for payment of balance of consideration etc. , the same would constitute the factor for the court to reject the specific performance. In Chand Rani v. Kamal Rani (supra) the Supreme Court rejected the relief of specific performance when the agreement holder insisted on fulfillment of a condition for payment of balance of consideration, which was not contemplated under the agreement. The same is evident from the following:"the analysis of evidence would also point out that the plaintiff was not willing to pay this amount unless vacant delivery of possession of one room on the ground floor was given. In cross-examination it was deposed that since income-tax clearance certificate had not been obtained the sum of Rs. 98,000/- was not paid. Unless the property was redeemed the payment would not be made. If this was the attitude it is clear that the plaintiff was insisting upon delivery of possession as a condition precedent for making this payment. The income-tax certificate was necessary only for completion of sale. We are unable to see how these obligations on the part of the defendant could be insisted upon for payment of Rs. 98,000. 00."

19. It was observed that the conduct of the plaintiff therein belied his readiness and willingness, and ultimately it as held as under:"therefore, even as late as 24-9-71 the plaintiff was never willing to make the payment of Rs. 98,000. 00. In this connection, we have already seen the oral evidence. It shows there was no readiness and willingness. We are in agreement with the conclusion of the Division Bench. "

20. It also needs to be noticed that the respondent did not choose to deposit the balance of sale consideration in the court to show his readiness and willingness.

21. Section 20 of the Specific Relief Act in clear terms provides the guidelines in the matter of granting or refusing the relief of the specific performance. The Supreme Court also has sounded a note of caution that where the subject matter of suit for specific performance is an urban property if where the escalation of consideration is almost in geometrical proportions, the courts will be advised not to exercise the discretion in favour of granting the decrees.

22. From the above discussion of the facts and law it is evident that ever since the date of execution of the agreement, the conduct of the respondent was far from being satisfactory. The mode of payment and failure to pay balance even by 1-10-1980, which itself was third extension are factors which show the attitude exhibited by the respondent from time to time.

23. The demand made by the respondent in Ex. A-5 was nothing but unreasonable. On the one hand he refers to a litigation which was instituted two years after the date of agreement and on the other hand he insisted for the transfer and conveyance to be made within two months free from any litigation and any encumbrance.

24. When the law is to the effect that even where the court is satisfied as to the execution of agreement of sale and the conduct of the parties, relief of specific performance-can be refused if it results in conferring the undue benefit on the persons seeking the same, it is too difficult to grant such relief in favour of the respondent in view of the facts referred to above. It is not in dispute that the property is abutting Kakinada Municipality which is a fast growing township. Enormous injustice would be caused to the appellant if she is required to part with about 1,500 Sq. yds. , for a paltry sum paid at staggered intervals.

25. One peculiar aspect of the decree under appeal is that the trial court, having directed the appellant to execute the sale deed did not say anything about the balance consideration. In my view, the cumulative effect of all these factors would disentitle the respondent for any decree for specific performance.

26. Now it remains to be seen as to whether the respondent is entitled for the alternative relief of refund of the amount paidby him together with damages.

27. It is not in dispute that an amount of Rs. 11,000/- was paid by the respondent to the appellant. The learned counsel for the appellant did not draw my attention to any clause for forfeiture of the amounts paid on occurrence of certain eventualities, therefore, in law and as well as in equity, (he respondent is entitled for the same. In addition to the amount of Rs. 11,000. 00 hehas also claimed an amount of Rs. 9,000. 00 towards damages. Inasmuch as the non- performance of the contract cannot be attributed to the appellant, in the facts and circumstances of the case stated above, the respondent is not entitled for any damages. There shall however be a decree for Rs,ll,000/- and the same shall carry interest at 15% from the date of filing of the suit.

28. In the result, the appeal is partly allowed and the decree of the trial court shall stand modified to the extent indicated above. No costs.”

c) The learned counsel for defendant cited the decision in between

K.Ahmed Alli Sab, Deceased (by L.Rs.) and others, Appellants Vs. Desai

Abdul Gani Desai, Respondent, reported in AIR 2005 Andhra Pradesh 374, in which the Hon’ble High Court held at Paras-50, 54 & 59 as follows:

“50. Under Section 20(2)(a) of the Specific Relief Act, where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant and therefore I am of the opinion that the plaintiff is not entitled for the decree on this ground also.

54. In the instant case, though the plaintiff stated that he is ready and willing to pay the balance sale consideration, he has not at all adduced any evidence that he has paid interest as per Ex. A-1 and that he was ready with the money by approaching the defendants to execute the sale deed as per Ex. A-1. No such evidence is forthcoming in the instant case. The mere plea of readiness and willingness to perform a part of contract is enough and that by itself is not sufficient to hold that plaintiff was ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but 20 also proof of the same. Section 16 (c) of the Specific Relief Act makes it clear that mere plea is not sufficient, but it has to be proved.

59. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the Court. The trial Court, which had the added advantage of recording the evidence and seeing the demeanour of the witnesses considered the relevant facts and reached a conclusion. The Appellate Court should not have reversed that decision disregarding these facts and, in my view, the Appellate Court seriously flawed in its decision.”

d) As per the principles laid down in the above decisions, even though the plaintiff did not examine any independent witnesses to prove that he borrowed money by executing two pronotes and he went to defendant along with money borrowed by him by executing two pronotes and also some other cash of him to discharge the bank loan of defendant, in the facts and circumstances since the defendant failed to prove that she removed floor mill as per the terms and conditions of Ex.A-1, and further there is long gap and silence in giving reply to the notice of plaintiff received by her under Ex.A-2

dated 23.9.2013 as evidenced by Ex.A-3 acknowledgment and while Ex.A-4 is

issued on 21.10.2013 and the plaintiff demanded the defendant through

Ex.A-2 notice to perform her part of contract of sale while expressing his readiness and willingness to perform his part of contract of sale, it can be safely held that too in the absence of evidence of defendant’s husband, that the plaintiff made demands to defendant to perform her part of contract of sale, but defendant failed to do so. As per the principles laid down in the above decisions, escalation of prices of the property is not a valid ground to deny the relief of specific performance. In this case, the evidence placed in respect of location of the plaint schedule property and admissions of P.Ws.1 to 3 of the same being situated nearby to the road cannot be criteria at all to deny the relief of specific performance of contract of sale in view of the conduct of the defendant of not only her failure to remove floor mill before 14.9.2013 but also her keeping silent for the demands made by the plaintiff under Ex.A-2 which is received by defendant and gave reply notice with contra allegations to the claims of the plaintiff by taking plea that the contents of 21

Ex.A-1 were not read over to her and she signed it when there was no electricity without knowing the same and that too reply notice is given under

Ex.A-4 on 21.10.2013. In those facts and circumstances, it can be safely held that the plaintiff is ready and willing to perform his part of contract of sale. In the present case, not only there is no long lapse of time of failure of defendant to perform her part of contract of sale, but also as per terms of Ex.A-1 it is the defendant who has at first remove the floor mill before 14.9.2013 and also she has to receive balance amount of Rs.14,50,000/- from the plaintiff after one week of opening of Tallarevu Sub Registrar office. In those facts and circumstances, it can be safely held that though time is essence of contract, in the facts and circumstances there is nothing as per evidence on record to deny to grant the relief of specific performance of contract of sale by defendant in favour of plaintiff. In those facts and circumstances, the plaintiff has proved that he is ready and willing to perform his part of contract of sale and the defendant did not do so and he is entitled for specific performance of contract of sale and as such not entitled for refund of advance amount with interest.

Hence, issues 1 to 5 are answered by holding that the agreement of sale dt.8.9.2013 is duly executed and plaintiff paid advance amount of

Rs.2,00,000/- as claimed and that the time is essence of the contract and that the plaintiff is ready and willing to perform his part of contract and that the plaintiff is entitled to specific performance of agreement of sale and that the plaintiff is not entitled to refund advance amount with interest. In view of answers to issues 1 to 5, issue No.6 is answered.

18. ISSUE No.6:- In the result, the suit is decreed with costs in favour of the plaintiff and against the defendant directing the defendant to execute a regular registered sale deed in respect of the plaint schedule property in favour of the plaintiff within three months from the date of judgment i.e.

09.02.2018 on duly stamped papers supplied by the plaintiff in the manner and form required under law and to deliver possession of the plaint schedule property to the plaintiff; and in case the defendant failed to execute the sale 22 deed, then the plaintiff is entitled for execution of the registered sale deed by the Court on behalf of the defendant in favour of the plaintiff at his expenses and for delivery of the property through process of law.

Dictated to the Stenographer Grade-II, transcribed by him, corrected

and pronounced by me in the open court this the 9 th day of February, 2018.

III ADDITIONAL DISTRICT JUDGE,

KAKINADA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:

P.W.1: Kunapareddy Kameswara Rao. P.W.2: Kommireddy Tirupathi Venkata Ramanarao. P.W.3: Alluri Radha Krishnam Raju.

For Defendant:

D.W.1: Kanakala Satyaveni.

DOCUMENTS MARKED

For Plaintiff:

Ex.A-1: Agreement of sale dt.8.9.2013 executed by the defendant. Ex.A-2: Office copy of legal notice dt.23.9.2013 got issued by plaintiff. Ex.A-3: Postal acknowledgment. Ex.A-4: Reply notice dt.21.10.2013 got issued by the defendant. Ex.A-5: Encumbrance certificate dt.13.11.2013. Ex.A-6: Copy of Regd. Sale Deed dt.8.7.1991 in favour of defendant.

For Defendant:

Ex.B1 to B3: Three photographs. Ex.B-4: C.D.

III A.D.J.

FAIR COPY OF JUDGMENT

IN O.S.30/14, DT.09.02.2018

EP/100003/2015

Mullangi Pushpa vs Kudupudi Suraya Chandrarao

26 Feb 2018

Order Record 477 total

Case No.	Parties	Date	Type	Outcome
AS/100205/2012	Vallu Ramana vs Sate of Andhra Pradesh and 2 others	28 Feb 2018	Judgment	Appeal Dismissed
MVOP/100080/2015	Keerthi Peddiraju vs Navundru Sampada Rao	28 Feb 2018	Order	—
EP/100010/2012	The waterbase Limited vs Garneti Anand	27 Feb 2018	Order	—
CRLMP.BAIL/184/2018	Aakuri Lova Prasad alias Sachin vs State represented by Addl.P.P.	27 Feb 2018	Order	—
EP/100003/2015	Mullangi Pushpa vs Kudupudi Suraya Chandrarao	26 Feb 2018	Judgment	—
CRLMP.BAIL/169/2018	Nutalapati Busiyya alias Lakshmana Rao vs Inspector of Proh. and Excise, Kakinada -2	26 Feb 2018	Order	—
CRLMP.BAIL/100164/2018	Shaik Srinu vs SHO Indrapalem P.S.	26 Feb 2018	Order	—
CRLMP.BAIL/100135/2018	Medisetti Bujjamma vs State rep. by S.I. of Police, Proh. and Excise, Peddapuram.	15 Feb 2018	Order	—
AS/100109/2017	Vangapandu Rama Krishna vs Jakku Baginayudu	12 Feb 2018	Order	—
MVOP/100079/2017	Penupothula Lakshmi vs M.Srinivasarao alias Srinuvas alias Srinu	10 Feb 2018	Order	—
MVOP/100079/2017	Penupothula Lakshmi vs M.Srinivasarao alias Srinuvas alias Srinu	10 Feb 2018	Others	—
MVOP/100144/2017	Sangadi Narasimha Murthy vs Polisetti Veerababu	10 Feb 2018	Others	—
CRLA/100411/2016	N. Raghavendra Reddy vs N. Srinivas	10 Feb 2018	Order	—
OS/3/2018	Yarlagadda Venkata Rao vs Yanamandra Venkata Ramana Murthy	09 Feb 2018	Order	—
OS/100030/2014	Kunapareddy Kameswara Rao vs Kanakala Satyaveni	09 Feb 2018	Judgment	—
OS/100152/2013	Prathipati Srihari vs Naripalli Siva Rama Krishna	09 Feb 2018	Judgment	Convicted
AS/4/2018	Satti Satyanarayana Reddi alias Dorababu vs Mulukutla Venkata Siva Ramakrishna	06 Feb 2018	Others	—
EP/100024/2016	Sunkara Lakshmi Mani Kumari vs Guttula Srinivas	02 Feb 2018	Order	—
OP/100290/2011	Katuru Abedin Anand Kumar vs Bethapudi Kamalamma @ Katuru Kamala	01 Feb 2018	Order	—
CRLA/363/2017	Pinapotu Dhana Lakshmi vs Viswanadhapalli Murthy Raju	01 Feb 2018	Order	—
MVOP/100008/2016	Pendikatla Ramachandrarao alias Rambabu vs Murla Satyanarayana	31 Jan 2018	Order	—
AS/100199/2012	Arumilli Kasi Viswanadham vs Arumilli Krishna Bhaskararao and another	29 Jan 2018	Judgment	—
EP/100006/2017	Katuri Venkata Surya Venugopala Lakhmajirao vs Tibirisetty Kusumahari	25 Jan 2018	Order	—
AS/100026/2015	Kantipudi Pattabhi vs Bikkina Veera Venkata Satyanarayana	23 Jan 2018	Judgment	—
OS/10/2018	Koppaka Neelima vs Thambabathula Ravi	19 Jan 2018	Order	—
MVOP/100472/2014	Shiak Peer Saheb vs Undru Vegulamma	10 Jan 2018	Others	—
AS/196/2014	Chinthalapudi Anasuya vs Parimi Veera Venkata Satyanarayana	09 Jan 2018	Judgment	—
AS/100048/2015	Amalakota Surya Chandra Rao vs Torreti Sankara Rao	08 Jan 2018	Judgment	—
CRLA/100246/2017	Manthana Ravi Kumar vs Miriyala Padmavathi Devi	08 Jan 2018	Order	—
OS/100303/2015	Kuna Subbarao vs Guntupalli Baburao	05 Jan 2018	Judgment	—
OS/100009/2016	Yarlagadda Ramachandrarao vs Mutha Anilkumar	03 Jan 2018	Judgment	—
CRLA/100305/2015	Katari Bhogeswararao alias Raju vs SHO, I Town L and O PS, Kakinada.	03 Jan 2018	Order	—
CRLA/100612/2015	Katakam Veereswara Rao vs Guri Sriramakrishna	02 Jan 2018	Order	—
EP/100026/2016	Potturi Veera Venkata Satyanarayana Varma vs N.V.Ramana	29 Dec 2017	Order	—
MVOP/100193/2016	Barre Vijaya Kumari vs Mota Pothu Prasad Rao	29 Dec 2017	Others	—
CRLA/100259/2015	Somisetty Mohan Rao vs Ganni Bheema Rao	29 Dec 2017	Order	—
CRLA/100315/2014	Korla Kalyana Chakravarthi vs Kosireddy Veerabhadra Rao	29 Dec 2017	Order	—
CRLA/100477/2014	Varre Nagesh vs Seelam Venkateswara Vara Prasad	29 Dec 2017	Order	—
CRLA/100496/2015	Gopireddi Rajani vs Ungarala Verriyya	29 Dec 2017	Order	—
AS/100165/2013	Ambati Jaya sri vs Tokala Padmaja	28 Dec 2017	Judgment	—
OS/100019/2009	Rayapureddy Veera Venkata Swamy Naidu vs Rayapureddy Jagannadha Swamy	28 Dec 2017	Judgment	—
OS/100147/2012	MEDISETTY VENKAYYAMMA vs MEDISETTY BHASKARA RAO AND ANOTHER	28 Dec 2017	Judgment	—
OS/300092/2009	Damodar Das Guglanni vs Pilika Ramamurthy and others	28 Dec 2017	Order	—
OS/100137/2017	Chintalapudi Nageswara Rao vs Gokarakonda Satyanarayana	22 Dec 2017	Others	—
EP/100031/2015	Nallamilli Dathatreya Reddy vs Digumarthi Badarinarayana	16 Dec 2017	Order	—
AS/100165/2016	Yarlagadda Sommayya Chowdary vs State Bank of India	15 Dec 2017	Judgment	—
CRLA/100112/2014	Ms S K Health Care Pvt Ltd vs S.H.O.Port P.S	15 Dec 2017	Judgment	—
CRLA/100155/2015	Prathipati Sri Hari vs SHO II Town PS	15 Dec 2017	Judgment	—
CRLA/100353/2014	Kosireddy Veerabhadra Rao vs Bande Veerabhadra Rao	14 Dec 2017	Judgment	—
CRLA/100523/2014	Kasireddy Verabhadrarao vs MSNVBKS Venkatak Rangarao	14 Dec 2017	Judgment	—
CRLA/100523/2014	Kasireddy Verabhadrarao vs MSNVBKS Venkatak Rangarao	14 Dec 2017	Others	—
CRLMP.BAIL/101574/2017	Jakki Vijaya Lakshmi vs SHO Indrapalem P.s.	14 Dec 2017	Order	—
CRLMP.BAIL/101588/2017	Jakki Satyanarayana-A.1 vs SHO Indrapalem P.S.	14 Dec 2017	Order	—
AS/100057/2014	Pasala Satyananda Rao vs Saraswathula Ravi Suryanarayana Sastry	13 Dec 2017	Order	—
MVOP/100071/2015	Gantyada Narayanarao vs Palivela Trimurthy	12 Dec 2017	Order	—
SC/100535/2011	Inspector of Polie vs Gonaboina Venkatarao	12 Dec 2017	Order	—
MVOP/100058/2016	Srikakolapu Sai Lakshmi vs P.Satyanarayana alias Sathibabu	09 Dec 2017	Others	—
MVOP/100108/2017	Yeleti Appayyamma vs Singana Venkateswarlu	09 Dec 2017	Others	—
MVOP/3/2014	MUKKALA SAIBABU vs POTHULA MALLESWARAO	09 Dec 2017	Other	—
MVOP/3/2014	MUKKALA SAIBABU vs POTHULA MALLESWARAO	09 Dec 2017	Order	—
MVOP/7/2015	Yedla Ranibaby vs Sathi Suryanarayana Reddy	09 Dec 2017	Other	—
MVOP/7/2015	Yedla Ranibaby vs Sathi Suryanarayana Reddy	09 Dec 2017	Order	—
MVOP/8/2015	Arimilli Venkata Lakshmi vs Akuri Ramaswami alias chandu	09 Dec 2017	Other	—
MVOP/8/2015	Arimilli Venkata Lakshmi vs Akuri Ramaswami alias chandu	09 Dec 2017	Order	—
MVOP/9/2014	ABBIREDDY CHANDRA RAO vs TULA MALLESWARARAO	09 Dec 2017	Judgement	—
MVOP/9/2014	ABBIREDDY CHANDRA RAO vs TULA MALLESWARARAO	09 Dec 2017	Other	—
MVOP/9/2015	TADI SATYANARAYANA MURTHY vs THOKALA GANESH KANNA	09 Dec 2017	Order	—
MVOP/9/2015	TADI SATYANARAYANA MURTHY vs THOKALA GANESH KANNA	09 Dec 2017	Other	—
MVOP/11/2017	Sape satyanarayana vs Katta Venkata Reddy	09 Dec 2017	Other	—
MVOP/11/2017	Sape satyanarayana vs Katta Venkata Reddy	09 Dec 2017	Order	—
MVOP/15/2017	Vasam Teja Veera Dora Babu vs Neethipudi Sampada Rao	09 Dec 2017	Other	—
MVOP/15/2017	Vasam Teja Veera Dora Babu vs Neethipudi Sampada Rao	09 Dec 2017	Judgement	—
MVOP/18/2013	KADAMBARI NAGA SATYA SAIBABU vs VEERAMALLA SRINU	09 Dec 2017	Order	—
MVOP/18/2013	KADAMBARI NAGA SATYA SAIBABU vs VEERAMALLA SRINU	09 Dec 2017	Other	—
MVOP/22/2016	Rameswarapu Satyaveni vs Nakka Srikanth	09 Dec 2017	Order	—
MVOP/22/2016	Rameswarapu Satyaveni vs Nakka Srikanth	09 Dec 2017	Other	—
MVOP/26/2017	Sape Nagaratnam vs Katta Venkatareddy	09 Dec 2017	Order	—
MVOP/26/2017	Sape Nagaratnam vs Katta Venkatareddy	09 Dec 2017	Other	—
MVOP/30/2013	KAMIDI SURYANARAYANA vs VEERAMALLA SRINU	09 Dec 2017	Other	—
MVOP/30/2013	KAMIDI SURYANARAYANA vs VEERAMALLA SRINU	09 Dec 2017	Order	—
MVOP/36/2017	DONGA SATYA VENI vs ADBALA GOVINDU	09 Dec 2017	Other	—
MVOP/36/2017	DONGA SATYA VENI vs ADBALA GOVINDU	09 Dec 2017	Order	—
MVOP/38/2017	Thottaramudi Baby Laxmi alias Baby vs Putchakayala Ananda Rao	09 Dec 2017	Other	—
MVOP/38/2017	Thottaramudi Baby Laxmi alias Baby vs Putchakayala Ananda Rao	09 Dec 2017	Order	—
MVOP/56/2017	Rakurthi Siva Subramanyam vs Yalla Sri Rama Murthy	09 Dec 2017	Order	—
MVOP/56/2017	Rakurthi Siva Subramanyam vs Yalla Sri Rama Murthy	09 Dec 2017	Other	—
MVOP/70/2017	Jakkamsetty bhagya Laxmi vs Hanumanthavajjula Vara Prasad	09 Dec 2017	Other	—
MVOP/70/2017	Jakkamsetty bhagya Laxmi vs Hanumanthavajjula Vara Prasad	09 Dec 2017	Order	—
MVOP/71/2017	VALLURI ANIRUDH vs Merla Venkateswarulu	09 Dec 2017	Other	—
MVOP/71/2017	VALLURI ANIRUDH vs Merla Venkateswarulu	09 Dec 2017	Order	—
MVOP/76/2016	Undrajavarapu Bhagya Lakshmi vs Saladi Prasad	09 Dec 2017	Judgement	—
MVOP/76/2016	Undrajavarapu Bhagya Lakshmi vs Saladi Prasad	09 Dec 2017	Other	—
MVOP/88/2016	Kudupudi Triveni vs Bokka Arjunna	09 Dec 2017	Order	—
MVOP/88/2016	Kudupudi Triveni vs Bokka Arjunna	09 Dec 2017	Other	—
MVOP/95/2017	Kusuma Lakshmi vs Chikkam Srinivasa rao	09 Dec 2017	Order	—
MVOP/95/2017	Kusuma Lakshmi vs Chikkam Srinivasa rao	09 Dec 2017	Other	—
MVOP/104/2016	Chelluri Nagaratnam vs Kagitha Nagaraju	09 Dec 2017	Other	—
MVOP/104/2016	Chelluri Nagaratnam vs Kagitha Nagaraju	09 Dec 2017	Order	—
MVOP/115/2015	Nakka Mangadevi vs Sravanam Venkanna	09 Dec 2017	Order	—
MVOP/115/2015	Nakka Mangadevi vs Sravanam Venkanna	09 Dec 2017	Other	—

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Frequently Asked Questions

How many cases has Sri N.Malyadri handled?

Sri N.Malyadri has handled 507 court orders since 2017 at II Addl District Court Amalapuram. The average disposal rate is 52 orders per month.

What types of cases does Sri N.Malyadri hear?

Based on available records, Sri N.Malyadri primarily handles Civil matters (Original Suits, Appeal Suits) and Motor Accident matters (Motor Accident Claims) and Criminal matters (Criminal Appeals) at II Addl District Court Amalapuram.

Where is Sri N.Malyadri currently posted?

Sri N.Malyadri is posted as II Additional District Judge Amalapuram at II Addl District Court Amalapuram, East Godavari, Andhra Pradesh.

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Yes. 5 judgments by Sri N.Malyadri are available on Legistro with full text, outcome, and sections cited.

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Sri N.Malyadri disposes approximately 52 cases per month, based on 507 orders handled over their tenure at II Addl District Court Amalapuram.

Since when is Sri N.Malyadri serving?

Sri N.Malyadri has been serving at II Addl District Court Amalapuram since 2017.

Case Types

MVOP 28%

OS 18%

CRLMP 16%

CRLA 14%

AS 10%

EP 7%

CRLRP 5%

OP 2%

Posting History

Sep 2017 — Dec 2017

II Additional District Judge Amalapuram · 123 orders
Feb 2017 — Feb 2018

III Addl. District and Sessions Judge,Kakinada · 384 orders

Outcomes on Record

Appeal Dismissed 1

Convicted 1

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4 orders

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Sri N.Malyadri

IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE

EAST GODAVARI AT KAKINADA

O R D E R

by its Archaka-Cum-Trustee Vs. Thokkula Dasaradharamayya and another

III ADDL. DISTRICT JUDGE,

KAKINADA.

III A.D.J.

FAIR COPY OF ORDER IN

IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE

EAST GODAVARI AT KAKINADA

J U D G M E N T

Shipping Corporation of India Ltd., Appellant Vs. Machado Brothers and

III ADDITIONAL DISTRICT JUDGE,

KAKINADA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

DOCUMENTS MARKED

III A.D.J.

FAIR COPY OF JUDGMENT

IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE

EAST GODAVARI AT KAKINADA

J U D G M E N T

Bonam Venugopal Rao and others, Appellants Vs. Tavvala Veerabhadra

T.A.Lakshmi Narasamba, Appellant Vs. T.Sundaramma and others,

Kothamasu Nagavenkata Suresh Babu Vs. Kothamasu Suneetha and

Pokuru Rangaiah, Appellant Vs. Pokur Chinnaiah and another,

III ADDL. DISTRICT JUDGE,

KAKINADA.

III A.D.J.

FAIR COPY OF JUDGMENT

IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE

EAST GODAVARI AT KAKINADA

J U D G M E N T

Arimanda Vijaya Bhaskara Reddy Vs. Manukonda Rami Reddy (died) by

K.Ahmed Alli Sab, Deceased (by L.Rs.) and others, Appellants Vs. Desai

III ADDITIONAL DISTRICT JUDGE,

KAKINADA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

DOCUMENTS MARKED

III A.D.J.

FAIR COPY OF JUDGMENT

IN T H E C O U R T O F T H E III A D D IT IO N A L D IS T R IC T J U D G E

E A S T G O D A V A R I A T K A K IN A D A .

E . P N o . 0 3 o f 2 0 1 5 i n M V O P 2 5 2 / 2 0 1 1

P e t i t i o n e r

R e s p o n d e n t

O R D E R

I I I A D D L . D I S T R I C T J U D G E

K A K I N A D A .

A P P E N D I X O F E V I D E N C E

I I I A D J .