Smt. N. Santhi, Ii Addl. District Judge, Adoni

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IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:

KURNOOL AT ADONI.

PRESENT: Smt. N. Santhi, II ADDITIONAL DISTRICT JUDGE.

FRIDAY, THE 16TH DAY OF JULY, 2021.

APPEAL SUIT NO.2 OF 2015.

K. Ampaiah. … Appellant.

Versus.

1. Ashabee.

2. Badi Bee.

3. Katike Motima Bee. … Respondents.

Appeal against the Judgment and Decree Dt.19-08-2014 passed by Learned Senior Civil Judge, Adoni, in O. S. No.14/2009.

Between:

K. Ampaiah. … Plaintiff.

And

1. Ashabee.

2. Badi Bee.

3. Katike Motima Bee. … Defendants.

This Appeal came up on 24-06-2021 for final hearing before me in the presence of Sri. Y. Rami Reddy, Advocate for the Appellant and of

Sri. G.V. Desai, Advocate for the respondents and having stood over for consideration till this day this Court delivered the following:

: J U D G M E N T :

1. This is an appeal preferred against the judgment and decree

dated 19-08-2014 passed by learned Senior Civil Judge, Adoni, in O.S.

No.14/2009.

2. The parties to the appeal would be referred as arrayed before the trial Court for the sake of convenience and to avoid confusion.

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3. This is a suit filed by the plaintiff for grant of permanent injunction.

4. The averments of the plaint in brief are: The plaintiff is the absolute owner and in peaceful possession and enjoyment of the plaint schedule property. The plaintiff has purchased the plaint schedule property from one Yellipayala Badesab, Yellipayala

Mahaboob Basha and Yellipayala Shareef under a registered sale deed

dated 31-05-2007 for valuable consideration of Rs.73,000/-. Originally

one Eramma @ Peeramma wife of Badesab was the absolute owner and in possession of the land in Sy.No.173 full measuring Ac.2.43 cents situated in Kalugotla Village of Yemmiganur Mandal. While the said

Eramma was in possession and enjoyment of the said land, she gifted the land under a registered gift deed dated 24-12-1980 to her grandsons viz., Minor Badesab, Minor Mahaboob Basha and Minor

Shareef, represented by their mother Razia Be as guardian. After attaining the age of majority and after the death of their father, donees under the registered gift deed have partitioned in respect of their joint family properties and the property covered by registered gift deed dated 24-12-980 under a registered partition deed dated 22- 12-2005. In the said registered partition, land measuring Ac.0.81 cents in Sy.No.173 of Kalugotla Village shown as Item No.1 in ‘A’ Schedule fell to the share of Badesab; the land measuring Ac.0.81 cents in the same Sy. No. shown as Item No.1 of the ‘B’ schedule fell to the share of Mahaboob Basha and another extent of land measuring Ac.0.81 cents in the same Sy. No. shown as Item No.1 of the ‘C’ schedule fell to the share of Shareef. Since then, they have been in peaceful 3 possession and enjoyment of their respective properties without any interruption from anybody. Their names were also mutated in the revenue records. After purchasing the plaint schedule property, the plaintiff has been in peaceful possession and enjoyment of the same without anybody’s interruption as an absolute owner. The plaintiff applied for pattadar pass book and title deed. The defendants have no right, title or interest over the plaint schedule property. The plaintiff raised the Jowar crop in the plaint schedule property by investing huge amounts. The defendants are trying to take Jowar Crop raised in the plaint schedule land without any manner of right.

5. On 30-01-2009 when the plaintiff was in the plaint schedule land for carrying out the agricultural works along with his labours, the defendants and their supporters came to the plaint schedule land and tried to dispossess the plaintiff from the plaint schedule land. The plaintiff is apprehending that the defendants and their supporters may come at any time and dispossess him from the plaint schedule property. Hence, the suit.

6. The 1st defendant filed a written statement resisting the claim of the plaintiff and the same was adopted by the defendants 2 and 3.

It is the contention of the defendants that the original owner of

Ac.2.43 cents in Sy.No.173 was Yellipayala Badesab, who is the grandfather of the plaintiff's vendors and the defendants. The said

Badesab died long-ago, leaving behind him, the widow Eramma @

Peeramma apart from two sons Y.Md. Hussain and Y. Khaja Hussain and one daughter by name Doulath Bi. Therefore, the widow had only undivided 1/8th share in Ac.2.43 cents and she had no right to gift 4 entire land to Badesab, Mahaboob Basha and Shariff. Doulath Bi received cash of Rs.5,000/- from each of her brothers and executed a relinquishment deed dated 25-07-1985 in favour of her brothers. Once

Doulath Bi went out of the picture, the two brothers i.e., Mohammed

Hussain and Khaja Hussain divided the property among themselves and each got Ac.1.21½ cents. After the death of Hussain, the vendors of the Plaintiff inherited Ac.1.21½ cents. After the death of Khaja

Hussain in 1974, the defendants succeeded to Ac.1.21½ cents. The defendants 1 and 2 in the capacity of daughters got 7/8th share and their mother Motima Bi who is 3rd defendant would get 1/8th share. The 3rd defendant who is their mother executed a registered sale deed

dated 28-03-2007 selling the suit land to defendants 1 and 2. The said

sale deed is valid to the extent of 1/8th share. The remaining 7/8th share is already vested with 1st defendant and her sister who is 2nd defendant as per Muslim Law of succession. The western boundary of the suit land actually belongs to the vendors of the plaintiff. It is not known how Chaduvula Naganna, whose name is shown in the boundary on the western side as per plaint, got the property. By misrepresenting the fact, the plaintiff obtained mutation in the revenue records and as against the said orders, the defendants filed an appeal before the Revenue Divisional Officer, Adoni, who after elaborate enquiry passed orders on 19-11-2007 and allowed appeal filed by the defendants and directed cancellation of pass book granted in favour of the plaintiff’s vendors. As against the orders an appeal was filed by the plaintiff’s vendors before the Joint Collector, Kurnool.

The latter, granted status-quo only with regard to possession without specifying who is in possession. The defendants 1 and 2 are in actual 5 possession of the suit land. They have also harvested the Jowar crop.

The plaintiff has neither prima-facie case nor balance of convenience.

Hence, the suit is liable to be dismissed.

7. Basing on the above pleadings the following issues were framed in the trial Court:

1) Whether the plaintiff is entitled to permanent injunction as prayed for?

2) To what relief?

8. Before trial Court, on behalf of the plaintiff, PW1 to PW4 were examined and Ex.A1 to Ex.A19 were marked. On behalf of the defendants DW1 and DW2 were examined and Ex.B1 to Ex.B5 were marked.

9. Having heard and perused the record, the learned Senior Civil

Judge, Adoni, dismissed the suit.

10. Having aggrieved by the Judgment and decree of the trial

Court, the plaintiff preferred this appeal assailing the findings of the trial Court on various grounds.

11. No witnesses were examined and no documents were marked on either side before the appellate Court.

12. Heard both sides through video conference via., Blue Jeans

App. The learned counsel for the defendants filed written arguments also.

13. Now, the points for consideration are:

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1) Whether the plaintiff is entitled to permanent injunction as prayed for?

2) Whether the judgment of the trial Court is sustainable in law or it requires any interference by the appellate Court?

3) To what relief?

14. POINT NO.1: Whether the plaintiff is entitled to permanent injunction as prayed for?

15. The plaintiff filed the suit for grant of permanent injunction.

In order to substantiate his case, the plaintiff examined himself as

PW1. The plaintiff has examined one of his vendors as PW2 and one of the attestors of the sale deed under which he purchased the property as PW3. The plaintiff has examined his neighbouring land owner as

PW4. Ex.A1 to Ex.A19 were marked on behalf of the plaintiff. In order to prove their contention, the defendants examined the 1st defendant as DW1. They examined their neighbouring land owner as DW2. Ex.B1 to Ex.B5 were marked on behalf of the defendants.

16. The case of the plaintiff is as follows: He has purchased the plaint schedule property from Y. Badesab and two others under a registered sale deed dated 31-05-2007- Ex.A1. They got Ac.2.43 cents which includes the plaint schedule property from their grandmother under a registered gift deed -Ex.A3 dated 24-12-1980 and they have partitioned the property and got Ac.0.81 cents each and later they have sold Ac.1.21½ cents out of the Ac.2.43 cents covered under

Ex.A3 to the plaintiff, under registered sale deed dated 31-05-2007.

The plaintiff’s vendors were in possession and enjoyment of the 7 plaint schedule property and later after purchase from his vendors, he was in continuous possession and enjoyment of the plaint schedule property. But, on 30-01-2009 when he was carrying out agricultural work in the plaint schedule property, the defendants and their supporters tried to dispossess him from the plaint schedule land and due to that he was constrained to file the suit.

17. The case of the defendants is as follows: The property originally belongs to Y. Badesab and he has got two sons namely

Mohammed Hussain and Khaja Hussain and a daughter by name

Doulath Bi and the said Doulath Bee having received Rs.5,000/- each from her brothers, executed relinquishment deed dated 25-07-1985 in favour of her brothers. Later Hussain and Khaja Hussain divided the property among themselves and each got Ac.1.21½ cents and after the death of Hussain the vendors of the plaintiff inherited Ac.1.21½ cents and after the death of Khaja Hussain, the defendants succeeded to his

Ac.1.21½ cents. The defendants 1 and 2 in the capacity of daughters together got 7/8th share and their mother 3rd defendant got 1/8th share out of Ac.1.21½ cents and the 3rd defendant executed a registered sale deed dated 28-03-2007 selling the land to the defendants 1 and 2 and they are in actual possession of the suit land. The widow of Badesab i.e., Eramma @ Peeramma had only undivided 1/8th share inAc.2.43 cents and she has no right to give the entire land to Badesab and others as gift and so, the plaintiff is not entitled for injunction and the suit is liable to be dismissed.

18. Thus, both parties are claiming title and possession over the suit schedule property.

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19. The defendants are claiming title by virtue of registered sale deed dated 28-03-2007 and possession by virtue of adangal for fasli 1417 under Ex.B5.

20. According to the defendants, they succeeded to Ac.1.21½ cents which had fallen to the share of the father of defendants 1 and

2. It is the evidence of DW1 that the defendants 1 and 2 together got 7/8th share and she (3rd defendant) got 1/8th share. But, as seen from

Ex.B2 registered sale deed dated 28-03-2007 under which the defendants are claiming right and title, it discloses that the 3rd defendant sold the entire extent of Ac.1.21½ cents. The recitals of

Ex.B2 read that the 3rd defendant succeeded to Ac.1.21½, which had fallen to the share of her husband. Thus, the recitals of Ax.B2 are contrary to the case put-forth by the defendants that the defendants 1 and 2 got 7/8th share together and the 3rd defendant got 1/8th share.

Moreover, when the 3rd defendant has got 1/8th share only she has no right to sell a total extent of Ac.1.21½ cents. However, since this is a suit for injunction, the question of title cannot be decided, though it has to be gone into incidentally. Since the suit is filed for permanent injunction, the primary element that has to be considered is possession.

21. Apart from the plaintiff, the defendants are also claiming possession over the plaint schedule property. Though the defendants have filed Ex.B2 registered sale deed dated 28-03-2007, as already discussed, in a suit for injunction, the primary element that has to be proved is possession and not title.

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22. In order to prove their possession, the defendants are relying-upon Ex.B5-True copy of adangal for fasli 1417.

23. The learned counsel for the defendants has argued that the adangal filed by the plaintiff under Ex.A4 is issued by the Village

Revenue Officer, whereas, the adangal filed by the defendants under

Ex.B5 is issued by the Tahsildar and they cannot stand on the same footing and Ex.B5 has to be considered over Ex.A4.

24. The true copy of the adangal for the fasli 1417 filed by the defendants show that it was issued on 28-02-2008. Admittedly, the defendants 1 and 2 filed an application before the Revenue Divisional

Officer, Adoni, for cancellation of pass books issued in favour of the plaintiff’s vendors and on that the Revenue Divisional Officer passed orders. The copy of Proceedings of the Revenue Divisional Officer,

Adoni dated 19-11-2007 was filed and marked as Ex.B4. As per Ex.B4, the pass books issued in favour of the plaintiff’s vendors were cancelled. As against the orders of the Revenue Divisional Officer,

Adoni, the plaintiff’s vendors preferred revision before the Collector and the Collector by his orders dated 22-01-2008 granted status-quo with regard to the possession over the land in dispute till the case is disposed of. As seen from the adangal filed by the defendants 1 and 2, it was issued on 28-02-2008 i.e., subsequent to the status-quo orders passed by the collector on 22-01-2008 under Ex.B5. So, the adangal obtained by the defendants is subsequent to the orders passed by the

Collector. As such, no reliance can be placed upon Ex.B5, which was issued in contra to the orders passed by the Collector, during the 10 pendency of status quo orders. Moreover, though the defendants are contending that they are in possession of Ac.1.21½ cents, subsequent to partition between the father of the defendants 1 and 2 and father of the plaintiff’s vendors, no document whatsoever was filed by them to prove their possession over the plaint schedule property since the date of partition till the date of filing of the suit. Except Ex.B5 which was obtained subsequent to passing of status-quo orders by the

Collector, no document whatsoever was filed by the defendants to prove their possession over the plaint schedule property.

25. The learned counsel for the plaintiff has argued that the defendants have not filed the partition deed to prove that the plaint schedule property fell to the share of the father of the defendants 1 and 2. On that the learned counsel for the defendants has argued that it was an oral partition. But there is no such pleading or proof to that effect. Thus, the defendants failed to prove their possession over the plaint schedule property. Though the defendants filed Ex.B2 registered sale deed dated 28-03-2007, that cannot be taken into consideration to prove their possession without filing any document of possession prior to the suit or as on the date of suit. Thus, the defendants failed to prove their possession over the plaint schedule property.

26. Merely because, the defendants failed to prove their possession over the plaint schedule property, the plaintiff is not entitled for grant of permanent injunction. Having filed the suit for grant of permanent injunction, the burden is on the plaintiff to prove his possession.

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27. In order to prove his contention, the plaintiff examined himself as Pw1 and deposed about his case. He has examined one of his vendors as PW2 and one of the attestors as PW3.They deposed about the purchase of plaint schedule property by plaintiff from PW2 and two others. .Their evidence is consistent and corroborating with each other.

28. The learned counsel for the defendants has strenuously argued that the attestor of Ex.A1 has categorically admitted in the cross-examination that entire sale consideration was not at all paid and the amount was kept pending, as the result of the suit is doubtful and therefore, it is a speculative sale which amounts to champerty and it is prohibited by public policy. In support of his argument on that aspect, he has relied-upon the following decisions:

1) LAWS (APH) 2018 8 16 between TRINITY INFRAVENTURES

LIMITED, FORMERLY KNOWN AS M/S. GOLDSTONE EXPORTS LIMITED

VS. STATE OF TELANGANA, REPRESENTED BY ITS PRINCIPAL

SECRETARY, DEPARTMENT OF REVENUE;

2) LAWS (SC) 2000 2 90 between OBERAI FORWARDING AGENCY

VS. NEW INDIA ASSURANCE COMPANY LIMITED AND ANOTHER.

29. In Trinity Infraventures’s case their Lordships have held that “purchase of decretal rights may tantamount to champerty, especially in a suit for partition.” In that case the sale was held in respect of unidentified property and in respect of decretal debt. So, in that case, their Lordships have held that the purchase of decretal rights of unidentified property, tantamount to champerty. But that is 12 not so in the present case. As such the decision has no application to the present suit.

30. In Oberai's case their Lordships have held that: “mere right

to sue could not be assigned as that such an assignment offended

the rule of champerty and maintenance.”

31. In the present case no right to sue was assigned. The facts of the above case and the facts of the present case are different. So, this decision is also not applicable to the present case.

32. However, it is true that one of the attestors who was examined as PW3 deposed that the plaintiff had paid Rs.14,000/- and the balance has to be paid after the sale. It is not the case of either defendants or the plaintiff that the entire sale consideration was not paid. So, the stray evidence of PW3 cannot be relied-upon. The witnesses, sometimes in their anxiety, resort to certain exaggerations.

When it is nobody’s case that the entire sale consideration was not paid, the stray evidence of PW3 that the entire sale consideration was not paid, cannot be taken into consideration. Moreover, the sale transaction had taken place on 31-05-2007. The suit was filed in the year 2009 i.e., nearly 2 years after the sale transaction. So, it is highly improbable that the plaintiff has expected filing of the suit and kept pending the balance sale consideration.

33. The learned counsel for the plaintiff has argued that non- payment of part of sale consideration does not invalidate the sale. In support of his argument, he has relied upon a decision reported in 2020 S.A.R. (Civ.) 793 between DAHIBEN VS. ARVINDBHAI KALYANJI 13

BHANUSALI (GAJRA) (D) THROUGH L.RS. AND OTHERS, wherein, their

Lordships have held that: “Non-payment of part of the sale price

would not affect the validity of the sale. Once the title in the

property has already passed, even if the balance sale consideration

is not paid, the sale could not be invalidated on this ground.”

34. In view of the above decision, even assuming without admitting that the entire sale consideration was not paid, it does not invalidate the sale. Moreover, as already discussed, it is not the case of either the plaintiff or his vendors or even the defendants that the entire sale consideration was not paid. As such, the argument of the learned counsel for the defendants is not tenable.

35. The learned counsel for the defendants has further argued that the purchase under Ex.A1 is not a real purchase but a sham one i.e., to say a fictitious one intended to create a facade of title for the purpose of litigation and not intended to actually convey title and therefore void ab-initio. In support of his argument on that aspect, he has relied-upon decisions reported in 1) LAWS (SC) 1992 1 53 between

ARUMUGHA CHETTIAR VS. RAHMANBEE and 2) LAWS (APH) 1999 11 81 between SHAIK ABDUL KHADER VS. VAKANTHAM NAGABHUSHANA

RAO.

36. In Armugha Chettiar’s case the property was sold by all the sharers to the defendant for consideration and later two sharers only sold their respective shares to the plaintiff. Then the Court held that the document is sham and nominal. Here in the present case, the property was not sold to anybody prior to selling the same to the 14 plaintiff. Moreover, the property was sold to the plaintiff by all the sharers. Thus, the facts of the case relied-upon by the learned counsel for the defendants are distinctive from the case on hand.

37. In Shaik Abdul Khader’s case it was held that: “the burden of proving that a document is sham and nominal is certainly on the defendant.” But here, the defendants failed to prove that Ex.A1 is a sham and nominal. Thus, the facts of the case relied-upon by the learned counsel for the defendants are distinctive from the case on hand. As such, the decision has no application to the present case.

38. There is no pleading that Ex.A1 is a sham and nominal document. The argument is beyond pleadings. There is no pleading and proof and there is no issue that Ex.A1 is a sham and nominal document.

39. There is nothing in the evidence to suggest that the buyer and the sellers did not intend to convey title. The present suit was not filed immediately after the sale transaction. No suit was pending as on the date of sale. As discussed above, the suit was filed two years after the sale transaction. So, there is no reason for the buyer and the sellers to create a nominal document under Ex.A1.

40. The learned counsel for the defendants has further argued that PW1 admitted in the cross-examination that the original owner of the suit land was Y. Badesab and he had admittedly two sons and one daughter and as per Muslim law, his widow Eramma @ Peeramma had only 1/8th share and she could not validly gift the entire property to her grandchildren who claimed to be the vendors of the plaintiff and 15 as per Muslim Law, each son takes two shares and daughter takes only one share and the daughter Doulath Be had relinquished her share in favour of her brothers in the year 1985 itself and neither the plaintiff nor the vendors of the plaintiff could claim that share as she never executed any document in their favour and the vendors of PW1 has no title at all or at best they have got 1/8th share of their mother Eramma @ Peeramma.

41. Though the defendants came up with a contention that

Doulath Bi relinquished her share by receiving Rs.5,000/- each from her brothers, no document was filed in proof of the same. Moreover, according to the defendants, Khaja Hussain died in the year 1974.But, the defendants came-up with a contention that Doulath Bi executed a relinquishment deed dated 26-07-1985 by receiving Rs.5,000/- each from her brothers. As rightly argued by the learned counsel for the plaintiff, when Khaja Hussain died in the year 1974 itself, paying

Rs.5,000/- in the year 1985 is not believable.

42. The learned counsel for the defendants has argued at length about the partition among the Muslims and the shares which the father of the vendors of the plaintiff, his brothers and their grandmother are entitled to.

43. The evidence discloses that Y. Badesab has got some other properties. Even assuming without admitting that Y. Badesab is the original owner of Ac.2.43 cents in Sy.No.173, in this suit we cannot decide the legality or otherwise of the partition, since that is not the issue in this suit .and this is not a suit for partition, so as to discuss 16 who is entitled to which share.

44. According to the plaintiff, his vendors’ grandmother Eramma @ Peeramma executed Ex.A3- gift deed dated 24-12-1980 in favour of his vendors and thereafter they have partitioned the property and later they have sold Ac.1.21½ cents to him and anotherAc.1.21½ cents to Cheduvula Naganna.

45. The learned counsel for the defendants has strenuously argued that the gift deed executed by the plaintiff’s vendors’ grandmother is not valid, since she has only 1/8th share. Though the plaintiff’s vendors’ are disputing that Badesab is not the original owner of the plaint schedule property, as argued by the learned counsel for the defendants, PW1 admitted that Badesab i.e., grandfather of the plaintiff’s vendors, is the original owner of the plaint schedule property. But, he further deposed that the said

Badesab gave the property to Eramma @ Peeramma under a registered document. It is not that the plaintiff’s vendors’ are claiming property of a third party. They are claiming the property of their grandmother who is admittedly the wife of Y. Badesab, who is said to be the original owner, according to the defendants. If it had been the property of a third party, a question would arise as to how Eramma @ Peeramma got the property. But that is not so. However, how Eramma @ Peeramma got the property, whether the gift deed is valid or not cannot be decided in this suit for bare injunction. Had it been a comprehensive suit for declaration and injunction, all those issues would have been discussed and decided.

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46. The learned counsel for the defendants has argued that mere registration is not equivalent to actual notice as the defendants would not regularly visit the Sub-Registrar’s office, they are not aware of the gift deed. In support of his argument he has relied-upon a decision reported in LAWS (SC) 1996 1 121 between MEETHIYAN SIDHIQU VS.

MUHAMMED KUNJUPAREETH KUTTY, wherein their Lordships have held that: “Registration of the documents by itself cannot operate as notice to the plaintiff.” He has further argued that a person is not required to move the Court whenever an unauthorized person executed a registered sale deed touching his property, he can simply ignore such a document. In support of his argument, he has relied- upon a decision reported in LAWS (APH) 1995 2 46 between MADDU

TATHA VS. UTTARAVILLI NAGAMANI.

47. On the other hand, the learned counsel for the plaintiff, has relied-upon a decision reported in 2011 (2) A.L.T. 690 between

RAMAVATH HASALA NAIK VS. SABAHAVATH GOMLI BAI, wherein their

Lordships have held that: “Ex.A1 gift deed though impeached by the

defendant in the written statement, this document is dated almost

five years before the suit and in the absence of any action by the

defendant till now, the validity or otherwise of the gift deed could

not have been decided by the trial Court in a suit for injunction.”

48. The decision relied-upon by the learned counsel for the plaintiff is rightly applicable to the present case. In the present case also, though the defendants are aware of the gift deed dated 24-12- 1980, they have not taken any action. Though the defendants came-up with a contention that the plaintiff’s vendors’ have not disclosed 18 about the gift deed till now and only after filing of the suit, they came to know about the gift deed, the contention of the defendants proves to be not correct in view of their written statement filed before the

Revenue Divisional Officer, Adoni dated 19-11-2007 under Ex.B4. It discloses that the defendants 1 and 2 who are petitioners therein filed written statement stating that in the year 2005, the petitioners’ mother (3rd defendant) contacted the plaintiff’s vendors’ and they have informed that the petitioners therein (defendants 1 and 2 herein) have no right over the land and the community elders have conducted enquiry in the Mosque and then the plaintiff’s Vendors’ produced the gift deed registered in the year 1980 executed by their grandmother

Eramma @ Peeramma. Thus, Ex.B4dated 19-11-2007 discloses that the defendants are aware of the gift deed in the year 2005 itself. But, they kept quiet without taking any legal steps. So, the argument of the learned counsel for the defendants that the defendants are not aware of the gift deed is not tenable.

49. In Ramavath Hasla Naik’s case relied-upon by the learned counsel for the plaintiff their Lordships have further held that:

“Apparently inspite of noticing Ex.A1 gift deed, the defendant has not taken any steps to challenge or to cancel the said document.”

50. In the present case also, though the defendants are aware of the gift deed in the year 2005 itself, they have not taken any steps to challenge the gift deed. Moreover, as held in the above decision, in a suit for injunction the aspect of validity of the gift deed would not arise. In view of the above decision also the validity or otherwise of

Gift deed cannot be decided in this suit for bare injunction.

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51. The learned counsel for the defendants has argued that there can be no injunction against the true owner even if the plaintiff is in possession of the property. In support of his argument, he has relied- upon a decision reported in LAWS (SC) 1994 7 63 between PREMJI

RATANSEY SHAH VS. UNION OF INDIA, wherein their Lordships have held that: “It is equally settled law that injunction would not be issued against the true owner.”

52. The above decision will be helpful to the defendants, only when the defendants prove that they are true owners. But, as discussed above, the defendants failed to prove that they are the true owners. As such, the decision is not helpful to the defendants.

53. The learned counsel for the defendants has relied-upon another decision reported in LAWS (APH) 2002 6 17 between K.

ANKAIAH VS. TIRUMALA TIRUPATHI DEVASTHANAM.

54. In the above decision, their Lordships have held that: “Person

not having any legal right over the disputed property, even if he is

in possession of the disputed property, when such a person is not

lawfully entitled to continue in possession of the disputed property

and any person whose possession is to be treated as illegal or

unlawful possession, will not be entitled to seek the relief of

injunction against the true owner.”

55. The plaintiff in the above case sought for injunction as a person in possession, though he admitted the title of the defendants therein. In the present case, the possession of the plaintiff is not 20 illegal. He was inducted into possession by virtue of sale deed dated 31-05-2007 under Ex.A1 by his vendors. Moreover, the defendants failed to prove that they are the true owners. As such, the decision has no application to the present case.

56. The learned counsel for the defendants has argued that the plaintiff cannot secure an injunction even if he is in possession against a co-owner as the possession of one co-owner is in the eye of law possession of all co-owners. In support of his argument, he has relied-upon the decisions reported in 1) LAWS (APH) 2002 9 15 between RASOOL BEE VS. GOUSIA BEGUM, and 2) LAWS (MAD) 2011 6 429 between KANAGARAJ VS. PAPATHI.

57. In Rasool Bee’s case, the defendant was shown as joint pattadar. In Kanagaraj’s case it was held that an injunction cannot be granted against a co-owner. According to the defendants, the property originally belongs to Y. Badesab, and after his death, there was a division among his two sons Mohammed Hussain and Khaja Hussain.

Thus the defendants came-up with a contention of partition among the brothers. When that is the case, the defendants are no-more co- owners of the plaintiff’s vendors. So, the contention of the defendants that the plaintiff cannot secure injunction against the co-owner is not tenable.

58. The learned counsel for the defendants has further strenuously argued that the suit for bare injunction is not maintainable in the absence of prayer for declaration of title. In support of his argument, he has relied-upon a decision reported in 21

LAWS (SC) 2008 3 175 between ANANTHULA SUDHAKAR VS. P. BUCHI

REDDY.

59. In the above decision, their Lordships have held that: “We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff’s title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima-facie right of a third party over it, is made out or shown.”

60. In the above decision, the defendants also claimed that they purchased the property and filed the sale deed. But, that is not so, in the present case. In the present case, the defendants failed to show that a cloud is cast on the title and there is some apparent defect in the title. There is nothing in the evidence to suggest that there is some prima-facie right of a third party over the schedule property. As such, the decision has no application to the present case. So, merely because the defendants raised a title dispute, it cannot be said that the suit for bare injunction is not maintainable.

61. On the other hand the learned counsel for the plaintiff has argued that the suit for bare injunction is maintainable. In support of his argument, he has relied-upon a decision reported in 2021 S.A.R.

(Civ.) 239 between A. SUBRAMANIAN AND ANOTHER VS. R.

PANNERSELVAM, wherein their Lordships have held that: “The High

Court was also right in its view that it is a common principle of law

that even trespasser, who is in established possession of the

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property could obtain injunction. However, the matter would be

different. If the plaintiff himself elaborates in the plaint about title

dispute and fails to make a prayer for declaration of title along

with injunction relief. The High Court has rightly observed that a

bare perusal of the plaint would demonstrate that the plaintiff has

not narrated anything about the title dispute obviously because of

the fact that in the previous litigation, DW1 failed to obtain any

relief. The High Court has rightly observed that the principle that

plaintiff cannot seek for a bare permanent injunction without

seeking a prayer for declaration is not applicable to the facts of the

present case.”

62. The above decision is rightly applicable to the present case.

The plaintiff has not elaborated about the title dispute in the plaint. It is the defendants who came-up with a contention that there is a title dispute. The plaintiff has not raised any question disputing his title.

Merely because the defendants disputed the title of the plaintiff, it cannot be held that the suit for bare injunction is not maintainable. It is settled law that in a suit for injunction the primary component that has to be considered is possession, as on the date of filing of the suit and not title, though it has to be gone incidentally. As such the suit by the plaintiff for bare injunction is perfectly maintainable.

63. The learned counsel for the defendants has further argued that the purchaser from the co-owner should sue for partition and not for injunction and the plaintiff at best can get 1/8th share out of the suit property and he must institute a suit for partition of his 1/8th share. In support of his argument, he has relied-upon a decision 23 reported in LAWS (ORI) 2009 1 58 between HAREKRUSHNA MAHAKUD

VS. RADHANATH MAHAKUD.

64. The facts of the case relied-upon by the learned counsel for the defendants are different from the present case. The defendants failed to prove that they are co-owners having a share in the plaint schedule property. Moreover, as already discussed, the defendants came-up with a contention that there was a partition among the two sons of Y. Badesab. As such, the question of co-ownership between the plaintiff’s vendors’ and defendants’ does not arise.

65. The learned counsel for the defendants has further argued that mere payment of land revenue does not prove possession of the plaintiff. In support of his argument, he has relied-upon a decision reported in LAWS (GAU) 1978 3 1 between CHANDRA KANTA DEKA VS.

HEM CHANDRA DEKA.

66. There is no dispute about the proposition of law that land revenue receipts do not confer title and prove possession of the party.

But in the present case, the plaintiff is not relying-upon the revenue receipts only to prove his vendors’ possession and consequently his possession. He is relying upon the pattadar pass books and title deeds issued in favour of his vendors’ apart from Ex.A4 true copy of adangal for the fasli 1416.

67. The learned counsel for the plaintiff has argued that no suggestion was put to the plaintiff that he is not in possession of the plaint schedule property, so, it is deemed that the case of the plaintiff is admitted by the defendants. In support of his argument, he has 24 relied-upon a decision reported in A.I.R. 1983 Calcutta 337 between

TRADERS SYNDICATE VS. UNION OF INDIA, wherein their Lordships have held that: “Whenever the opponent has declined to avail

himself of the opportunity to put his essential and material case in

cross-examination, it must follow that he believed that the testimony

given could not be disputed at all. It is wrong to think that this is

merely a technical rule of evidence.”

68. On that the learned counsel for the defendants has argued that it was suggested to PW1 that he has no right in the schedule land and the word “right” is a generic word which covers possessory right or title and proprietary right or title. In support of his argument, he has relied-upon the decisions reported in 1) LAWS (SC) 2016 1 153 between ATIN KUNDU CHOWDHURY AND ANOTHER VS. STATE OF

WEST BENGAL AND OTHERS and 2) LAWS (ORI) 2007 1 34 between

DANDAPANI SAHU VS. BUDHURAM LOHAR.

69. In Atin Kundu Chowdhury’s case, it was not laid down that the word ‘right’ is a generic word which covers possessory right or title. On the other hand, it was held that: “In case the verdict in the

title suit is reversed in the appeal which is stated to have been filed,

it will affect only the possessory rights of the appellants.” In

Dandapani’s case, also it was not held that the word ‘right’ covers possessory right. As such the argument of the learned counsel for the defendants is not tenable.

70. The plaintiff has categorically deposed that he is in possession and enjoyment of the plaint schedule property. So, it is for 25 the defendants to deny the evidence of PW1 specifically.

71. In a decision reported in 2007 (2) CCC 427 (AP) between

MOHD. IBRAHIM AND OTHERS VS. SMT. MUNNI @ ZAINAB BEE, their

Lordships have held that: “It is well known that when a fact stated in

the chief-examination is not disputed in the cross -examination, it

should be deemed to be admitted.” In the present case also, the defendants failed to put a suggestion to the plaintiff that he is not in possession of the plaint schedule property and the evidence given by

PW1 regarding possession was not denied. So in view of the ratio laid down in the above decision it is deemed to have been admitted by the other-side. Moreover, at the earliest point of time in the earlier proceedings, the defendants have admitted the possession of the plaintiff’s vendors’ father.

72. As seen from Ex.B4, it discloses that the defendants 1 and 2 who are petitioners therein, filed a written statement before the

Revenue Divisional Officer, Adoni, stating that the land revenue for the above land is being paid by Y. Md. Hussain i.e., father of the plaintiff’s vendors. As seen from Ex.B4, it contains the report submitted by Tahsildar to the Revenue Divisional officer, Adoni, which reads that the Tahsildar on enquiry submitted a detailed report stating that the plaintiff’s vendors’ father was cultivating the entire land and raised crops. Thus, Ex.B4 filed by the defendants goes to show that the plaintiff’s vendors’ father cultivated the entire land and raised crops. Thus the evidence discloses that the plaintiff’s vendors’ father and thereafter the plaintiff’s vendors and after purchase by the

Plaintiff, he has been in possession and enjoyment of the schedule 26 property.

73. The plaintiff in order to prove his possession, apart from revenue receipts, has been relying-upon the pattadar pass books and title deeds issued in favour of his vendors.

74. The learned counsel for the defendants has argued that the

Revenue Divisional Officer, Adoni, admittedly cancelled the pattadar pass books and until the Collector allows the Revision, the cancellation holds good and the plaintiff has not obtained any pass book in his name and admittedly he did not pay full consideration for his registered sale deed under Ex.A1 and he cannot get any benefit from the pass book, which stands in the name of his vendors. He has further argued that there are certain presumptions under section 6 of

A.P. Rights in Land and Pattadar Pass books Act in favour of holders of the pass book, but, this suit is not filed by the pass book holder and the presumption under section 5 is only rebuttable and the defendants have successfully rebutted by letting in copious evidence.

In support of his argument, he has relied-upon a decision reported in

LAWS (APH) 2010 4 18 between EXECUTIVE OFFICER, SRI BRAMARAMBA

MALLIKARJUNA SWAMY TEMPLE, BEERANGUDA, PATANCHERU

MANDAL, MEDAK DISTRICT VS. SAI KRUPA HOMES, KARIMNAGAR.

75. On that the learned counsel for the plaintiff has argued that the Revenue Divisional Officer is not competent to cancel the pattadar pass book and he is only an appellate authority. In support of his argument, he has relied-upon a decision reported in 2002 (4) A.L.D.

497 between SANNEPALLI NAGESWAR RAO VS. DISTRICT COLLECTOR, 27

KHAMMAM.

76. In the above decision, it was held that the Revenue Divisional

Officer, is an appellate authority. As seen from Ex.B4, it discloses that an appeal was filed before the Revenue Divisional Officer, Adoni, for cancellation of pattadar pass books issued in favour of Y. Badesab and two others. So, while acting as appellate authority, he has cancelled the pass books and title deeds issued in favour of Y. Badesab and others. Whether that order is correct or not cannot be decided in this suit as the validity of that order was not challenged in this appeal.

77. The learned counsel for the plaintiff has argued that though the Revenue Divisional Officer, Adoni, cancelled the pass books and title deeds issued in favour of the plaintiff’s vendors, the orders of the Revenue Divisional Officer, Adoni, were set aside by the Collector and ordered to maintain status-quo, so, the proceedings, which were prior to passing of orders, had to be maintained and the plaintiff’s vendors were in possession of the schedule property, so, the plaintiff is deemed to be in possession of the plaint schedule property.

78. On that the learned counsel for the defendants has argued that the order by the Collector is vague and it does not speak as to who is in actual possession, so as to maintain status-quo and the

Hon’ble Supreme Court has declared that merely ordering status-quo

even by a Court of law, without specifying who is in possession is void. In support of his argument, he has relied-upon a decision reported in LAWS (SC) 2006 2 66 between KISHORE KUMAR KHAITAN

VS. PRAVEENKUMAR SINGH.

28

79. In the above decision it was not held that the order passed to maintain status-quo without indicating who is in possession is void.

The word status-quo means, existing state of affairs. The Collector, while passing orders on the revision preferred by the plaintiff’s vendors, granted status-quo with regard to possession over the land in dispute. Since the Collector has passed status-quo, the existing state of affairs has to be taken into consideration with regard to possession. Admittedly, the plaintiff’s vendors were issued pattadar pass books and title deeds by the revenue authorities, which were subsequently cancelled by the Revenue Divisional Officer, Adoni, under proceedings dated 19-11-2007. Since, the Collector has passed status-quo, the existing state of affairs prior to passing of orders by the Revenue Divisional Officer, Adoni, has to be maintained. Since, the plaintiff’s vendors’ were in possession of the property prior to passing of orders by the Revenue Divisional Officer, Adoni, it has to be construed that the plaintiff’s vendors’ and after purchase the plaintiff is in possession of plaint schedule property. Moreover, as rightly argued by the learned counsel for the plaintiff, even as seen from the orders of the Revenue Divisional Officer, Adoni, no finding was given by the Revenue Divisional Officer, Adoni, stating that the defendants are in possession of the plaint schedule property.

80. The learned counsel for the defendants has argued that earlier basing on the orders of the Collector, the plaintiff obtained a temporary injunction, which was vacated by the Hon’ble Court in Civil

Revision Petition No.715/2010and when the Hon’ble High Court has refused to grant injunction, the plaintiff cannot once-again depend 29 upon the status-quo orders of the Joint Collector, which is vague.

81. I have gone through the orders passed in C.M.A.No.15/2009 and the orders passed by the Hon’ble High Court in Civil Revision

Petition No.715/2010. While passing orders in C.M.A. and C.R.P, the orders passed by the Collector were not taken into consideration. As such the arguments of the learned counsel for the defendants that the plaintiff cannot once again depend upon the status-quo orders of the

Collector is not tenable. Moreover, the orders in interlocutory application do not operate as res-judicata.

82. In a decision reported in 1964 A.I.R. 993 between Arjun Singh

Vs. Mohindra Kumar & Ors, The Hon'ble SUPREME COURT while relying upon the decision of Privy Council held that: It is needless to point

out that interlocutory orders are of various kinds; some like orders

of stay, injunction or receiver are designed to preserve the status

quo pending the litigation and to ensure that the parties might not

be prejudiced by the normal delay which the proceedings before the

court usually take. They do not, in that sense, decide in any manner

the merits of the controversy in issue in the suit and do not, of

course, put an end to it even in part such orders are certainly

capable of being altered or varied by subsequent applications for

the same relief, though normally only on proof of new facts or new

situations which subsequently emerge. As they do not impinge upon

the legal rights of parties to the litigation the principle of res-

judicata does not apply to the findings on which these orders are

based, though if applications were made for relief on the same basis

after the same has once been disposed of the court would be

30 justified in rejecting the same as an abuse of the process of court.

83. In view of the ratio laid down in the above decision the argument of learned counsel for the defendants that the plaintiff cannot once-again depend upon the status-quo orders of the Collector, is not tenable.

84. The learned counsel for the defendants has further argued that the plaintiff filed a suit for cancellation of sale deed obtained by the defendants 1 and 2 in the Court of Junior Civil Judge, Adoni, and the said suit was dismissed on merits and he has filed an appeal against the said Judgment and the same is pending for hearing and when the title suit itself was dismissed, the plaintiff cannot hope to secure permanent injunction in this appeal.

85. The copy of Judgment of the suit, which was filed by the plaintiff against the defendants 1 and 2 was not filed by the defendants, so as to know on what grounds the suit was dismissed. At the cost of repetition it can be said that it is well settled that a person in possession, though without title, can maintain suit for injunction.

So irrespective of dismissal of that suit, still the plaintiff can maintain this suit for bare injunction.

86. The learned counsel for the defendants has argued that

Ex.A4 adangal extract is not validly issued, as it was not countersigned by the Tahsildar, as mandated by Rule 25 sub-rule 4 of

Pattadar Pass books Rules 1989.

87. On that the learned counsel for the plaintiff has argued that 31 the Village Revenue Officer is competent to issue pass books and adangals as per G.O.Ms.No.1059. The learned counsel for the plaintiff has also filed copy of G.O.Ms.No.1059 dated 31-07-2007, wherein, the job chart of the panchayat secretaries was recast and Village Revenue

Officer was authorized to issue Pahanies/Adangals extracts also.

88. It is true that as argued by the learned counsel for the defendants, as per Rule 25 (4) every copy or extract from the Record of Rights shall be attested by the Mandal Revenue Officer. The plaintiff has filed Ex.A4 true copy of adangal for the fasli 1416 issued by the Village Revenue Officer. It is true that as per G.O.Ms.No.1059

dated 31-07-2007, the Village Revenue Officer is competent to issue

Adangal extract. But, the Pattadar Pass Book Rules says that the extract issued by the Village Revenue Officer has to be counter signed by the

Mandal Revenue Officer. Rule 25 (4) of A.P. Rights in Land and

Pattadar Pass Books Rules, 1989, is mandatory as it reads that it shall be attested by the Mandal Revenue Officer. But, the adangal filed by the Plaintiff is not countersigned by the Mandal Revenue Officer.

Though, the learned counsel for the defendants has argued that Ex.A4 is not validly issued, as it was not countersigned by the Mandal

Revenue Officer, it is not the case of defendants that the plaintiff has created the said adangal. However, even though Ex.A4 is kept aside from consideration, the plaintiff has filed Ex.A6 to Ex.A11 pattadar pass books and title deeds issued in favour of his vendors to prove his possession. It is settled law that the entries in record of rights have got corroborative value and unless and until contrary is proved, they are presumed to be genuine. Apart from Ex.A6 to Ex.A11, the 32 plaintiff has filed Ex.A3 the original registered gift deed under which the plaintiff’s vendors’ got the property and Ex A1 under which the plaintiff purchased the property. Thus, the entries in Ex.A6 to Ex.A11 are getting corroboration from the recitals in Ex.A3. Since the plaintiff has purchased the property from his vendors, it is deemed that possession was conveyed to the plaintiff. Even as seen from Ex.A1, it was recited that possession was delivered to the plaintiff.

89. The defendants admitted in the written statement that after the death of Hussain, the vendors of the Plaintiff inherited Ac.1.21½ cents. Thus, the defendants are admitting the right, title and possession of the plaintiff’s vendors over Ac.1.21½ cents. Though the defendants came-up with a contention that eastern half fell to the share of Khaja Hussain and Western half fell to the share of Hussain i.e., father of the vendors of the plaintiff, no document was filed in proof of their contention. Moreover, there is no pleading also to that effect.

90. The defendants are denying the possession and enjoyment of the plaintiff and their vendors. But, they have sought cancellation of pattadar pass books issued in favour of the plaintiff’s vendors.

Admittedly the revenue authorities issued pattadar pass books and title deeds in favour of plaintiff’s vendors. It is obvious that having recognized their possession the revenue authorities issued pattadar pass books and title deeds. Thus the defendants have admitted the possession of the plaintiff’s vendors, so that they sought cancellation of pattadar pass books issued in favour of the plaintiff’s vendors.

33

91. In the written statement filed by the defendants 1 and 2

before the Revenue Divisional Officer, they have mentioned that after

the death of Y. Md. Hussain his three sons divided the entire extent of

Ac.2.43 cents equally and each got Ac.0.81 cents. Thus, the defendants are admitting the possession, right and title of the plaintiff’s vendors over the entire extent of Ac.2.43 cents. In Spite of that they have not taken any legal steps. No document was filed by the defendants in proof that they are in possession prior to filing of the suit or status-quo orders passed by the Collector. Even in Ex.B5, the adangal filed by the defendants, the plaintiff’s vendors were shown as pattadars.

92. The learned counsel for the plaintiff has argued that the plaintiff is in possession, so, on the strength of his possession he can resist the defendants who have no better title. In support of his argument on that proposition, he has relied-upon a decision reported in A.I.R. 1972 SC 2299 between M. KALLAPPA SETTY VS. M.V.

LAKSHMINARAYANA RAO.

93. In the present case the defendants failed to prove that they have got a better title than the plaintiff and they further failed to prove their possession over the plaint schedule property. The plaintiff has proved his vendors’ possession and consequently his possession. So his possession has to be protected.

94. In view of the above discussion this Court holds that the defendants have failed to prove their possession over the plaint schedule property. The primary requirement that has to be proved in 34 a suit for injunction is possession. The plaintiff has proved not only the possession of his vendors, but consequently his possession over the plaint schedule property. Hence, the plaintiff is entitled to the injunction as prayed for. The point is answered accordingly.

95. POINT NO.2: Whether the judgment of the trial Court is sustainable in law or it requires any interference by the appellate

Court?

96. In view of the findings on point No.1, this Court holds that the learned trial Judge has not appreciated the oral and documentary evidence available on record in proper perspective, as such, the

Judgment and decree of the trial Court has to be set aside. The point is answered accordingly.

97. POINT NO.5: To what relief?

98. In the result, the Appeal is allowed, setting aside the

Judgment and decree dated 19-08-2014 passed by the learned Senior

Civil Judge, Adoni, in O.S.No.14/2009. However, the suit in O.S.

No.14/2009 on the file of Senior Civil Judge’s Court, Adoni, is decreed, granting permanent injunction in favour of the plaintiff, restraining the defendants, their men, servants etc., from interfering with the plaintiff’s peaceful possession and enjoyment over the plaint schedule property. There is no order as to costs.

Dictated to the Stenographer Gr.1, transcribed by him, corrected

and pronounced by me from Court office, this the 16 th day of July, 2021.

SD/-N.SANTHI.

II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:

KURNOOL AT ADONI.

PRESENT: Smt. N. Santhi, II ADDITIONAL DISTRICT JUDGE.

THURSDAY, THE 16THDAY OF APRIL, 2020.

APPEAL SUIT NO.25 OF 2012.

1. G. Mallikarjuna Reddy.

2. G.P. Madhusudhana Reddy.

3. K. Nagalakshmamma.… Appellants.

Versus.

1. K. Satyanarayana Reddy.

2. K. Rajeswar Reddy.

3. G. Hanumantha Reddy.

4. G. Vekatrami Reddy.

5. G. Lakshminarayana Reddy.

6. G. Sreedhar Reddy.… Respondents.

Appeal against the Judgment and Decree Dt.26-09-2011 passed by Learned Senior Civil Judge, Adoni, in O.S.No.46/2003.

Between:

1. K. Satyanarayana Reddy.

2. K. Rajeswar Reddy. … Plaintiffs.

And

1. G. Mallikarjuna Reddy.

2. G. Hanumantha Reddy.

3. G. Vekatrami Reddy.

4. G. Lakshminarayana Reddy.

5. G. Sreedhar Reddy.

6. G.P. Madhusudhana Reddy.

7. K. Nagalakshmamma.… Defendants.

This Appeal came up on 17-02-2020 for final hearing before me in the presence of

Sri. G. V. Desai, Advocate for the Appellants and of Sri. O.P. Santha Kumar, Advocate

for the respondents and having stood over for consideration till this day this Court

delivered the following:

: J U D G M E N T :

1. This is an appeal preferred against the judgment and decree

dated 26-09-2011 passed by Learned Senior Civil Judge, Adoni, in O.S.

No.46/2003.

2. The plaintiffs filed the suit for declaration of title, for confirmation of possession in respect of the plaint schedule property and for permanent injunction restraining the defendants from interfering with the plaintiffs’ peaceful possession and enjoyment over the plaint schedule property.

3. The averments of the plaint in brief are:

4. The plaintiffs are the absolute owners of the plaint schedule lands. They have purchased the plaint schedule lands from 7th defendant under a registered sale deed dated 19-02-2003 for

Rs.57,500/-. The 7th defendant had purchased the plaint schedule lands from Smt. K. Prameelamma under a registered sale deed dated 30-07-2002 for Rs.57,500/-. Since the date of purchase, the plaintiffs have been in possession and enjoyment of plaint schedule lands.

When the plaintiffs purchased the lands, they were undeveloped lands. After purchase, the plaintiffs have developed Item No.2 of the plaint schedule by spending nearly Rs.50,000/-.

5. Originally, the plaint schedule lands were purchased by K.

Siva Rami Reddy father-in-law of Smt. K. Prameelamma. In the family partition between Neelakanta Reddy and his brother K. Ramalinga

Reddy, the plaint schedule lands have fallen to the share of K.

Ramalinga Reddy. The said K. Ramalinga Reddy died on 16-11-1977.

He was in possession and enjoyment of the plaint schedule lands till his death. After his death, it was devolved upon Smt. K.

Prameelamma. She was in possession and enjoyment of the plaint schedule lands till she sold the same in favour of K. Nagalakshmamma i.e., 7th defendant. K. Siva Rami Reddy was in possession and enjoyment of the plaint schedule lands till his death. The defendants 1 to 6 are nothing to do with the plaint schedule lands. At no point of time, they are in possession of the plaint schedule lands. The ancestors of defendants 1 to 6 are also not in possession of the plaint schedule lands. The 7th defendant applied to the Mandal Revenue

Officer, Holagunda for issuance of Pattadar Pass Book and Title deed.

The Mandal Revenue Officer, Holagunda passed orders and granted

Pattadar Pass Book in favour of the 7th defendant overruling the objections raised by the defendants 1 to 6. As against the orders of the Mandal Revenue Officer, Holagunda, the defendants preferred an appeal to the Revenue Divisional Officer, Adoni, for cancellation of

Pattadar Pass book issued in favour of the 7th defendant in respect of the plaint schedule lands. So, the Revenue Divisional Officer, Adoni, remanded the matter to Mandal Revenue Officer, Holagunda for denovo enquiry.

6. Originally the suit schedule lands were in Sy.No.74B, which is an extent of Ac.14.59 cents. A portion of this land was acquired by the Government for digging T.B.P. Canal. After the land was acquired, it was sub-divided and separate number was given as shown in the plaint schedule.

7. The orders passed by Revenue Divisional Officer, Adoni, were communicated to the parties on 02-07-2003. After the Revenue

Divisional Officer, Adoni, passed orders, the defendants are openly proclaiming in the village that they are the owners of the plaint schedule lands and they can take possession of the plaint schedule lands. The defendants 1 to 6 are very powerful people in the village and they have got large following. Hence, the suit.

8. The 1st defendant filed written statement and the same was adopted by the defendants 1 to 6. They admitted that originally the plaint schedule lands belong to K. Siva Rami Reddy. It is their contention that the defendants 1 to 6 and their father G. Narsi Reddy owner land in Sy.No.136A measuring Ac.5.85 cents. K. Siva Rami

Reddy is the brother-in-law of G. Narsi Reddy (sister’s husband). Due to the close relationship of the parties and for the sake of convenience, there was an oral exchange of the properties between G.

Narsi Reddy and K. Siva Rami Reddy around the year 1955. Though oral exchange is not valid in the eye of law, the defendants have perfected their title by adverse possession. It is only on account of exchange, Neelakanta Reddy S/o. K. Siva Rami Reddy sold

Ac.3.00cents in Sy.No.136A to a third party by name Gopal Reddy in the year 1978. Similarly, Smt. Prameelamma daughter-in-law of K.

Siva Rami Reddy sold Ac.1.40 cents of land in Sy.No.136A to Talari

Rangamma in the year 1977. On account of exchange, in the land ceiling declaration filed by G. Narsi Reddy in the year 1975, the said land was shown as the land of Narsi Reddy and his joint family. The vendors of the plaintiffs have never shown the suit lands as their lands in their land ceiling declarations. After considering the material, the Revenue Divisional Officer, Adoni, cancelled the pass book issued to Smt. Nagalakshmamma and remanded the matter. The Mandal

Revenue Officer, Holagunda passed orders on 23-07-2003 directing the plaintiffs not to enter into the suit lands. In fact, pass books were issued in favour of widow of G. Narsi Reddy by name Rangamma. The said Rangamma also died leaving behind a registered will dated 28-09- 1996 bequeathing the suit lands in favour of defendants 3,5 and 6 who are her grandsons. The plaintiffs have no cause of action. The

Court has no pecuniary jurisdiction to entertain the suit. Hence, the suit is liable to be dismissed.

9. Basing on the above pleadings, the following issues were framed before the trial Court:

1) Whether the plaintiffs are entitled to declaration of their right and title and confirmation of possession over the plaint schedule properties as prayed for?

2) Whether the plaintiffs are entitled for permanent injunction as prayed for?

3. Whether the exchange of properties between G. Narsi Reddy and K. Siva Rami Reddy as pleaded in the written statement is true?

4) Whether the Will dated 28-09-1996 as pleaded in the written statement is true, valid and binding on the parties to the suit?

5) Whether the defendants have perfected their right over suit schedule properties by way of adverse possession?

6) Whether this Court has pecuniary jurisdiction to try the matter?

7) To what relief?

10. Before the trial Court on behalf of the Plaintiffs PW1 to PW4 were examined and Ex.A1 to Ex.A27 and Ex.X1 to X9 and C1 to C3 were marked. (It appears that the deposition of PW2 was misplaced and it was reconstructed by the trial Court).On behalf of the defendants DW1 and DW2 were examined and Ex.B1 to Ex.B15 were marked. .

11. Having heard and perused the record, the learned Senior

Civil Judge, Adoni, has decreed the suit.

12. Having aggrieved by the Judgment and Decree, the defendants preferred this appeal assailing the findings of the trial

Court on various grounds.

13. Heard both sides. The learned counsel for the defendants filed written arguments also.

14. No witnesses were examined and no documents were marked on either side before the appellate Court.

15. The parties to the appeal would be referred as arrayed before the trial Court for the sake of convenience and to avoid confusion.

16. Now, the points for consideration are:

1. Whether the exchange pleaded by the defendants is true?

2. Whether the defendants have perfected their title by adverse possession?

3. Whether the plaintiffs are entitled for declaration of title, confirmation of possession and permanent injunction as prayed for?

4. Whether the judgment of the trial Court is sustainable in law or it requires any interference by the appellate Court?

5. To what relief?

17. POINTS 1 TO 3: 1. Whether the exchange pleaded by the defendants is true?

2. Whether the defendants have perfected their title by adverse possession?

3. Whether the plaintiffs are entitled for declaration of title, confirmation of possession and permanent injunction as prayed for?

18. Since these three points are inter-related, they have been taken up together for discussion, in order to avoid repetition and over-lapping.

19. The plaintiffs filed the suit for declaration of title, confirmation of possession and for permanent injunction.

20. In order to prove their case, the first plaintiff was examined as PW1. He deposed about their case as set-out in the plaint. Ex.A1 to

Ex.A27 were marked through him. The plaintiffs examined one

Neelakanta Reddy as PW2 and S. Mahaboob (Tahsildar) as PW3 and the advocate commissioner as PW4. Ex.X1 to Ex.X9 were marked through

PW3 and Ex.C1 to Ex.C3 were marked through PW4.

21. On the other hand, in order to prove their contentions, the 1st defendant examined himself as DW1 .He deposed about their case as set-out in the written statement. Ex.B1 to Ex.B15 were marked through him. The defendants examined M. Mallikarjuna Reddy one of the attestors of Ex.B6 registered Will as DW2.

22. According to the plaintiffs, they have purchased the plaint schedule property from 7th defendant under a registered sale deed

dated 19-02-2003 (Ex.A1) and the 7th defendant inturn purchased the

plaint schedule property from Smt. K. Prameelamma under a registered sale deed dated 30-07-2002 (Ex.A2). It is further the case of the plaintiffs that originally the plaint schedule properties belonged to late K. Siva Rami Reddy and in the partition that took place between

K. Neelakanta Reddy and Ramalinga Reddy sons of Siva Rami Reddy, the plaint schedule properties fell to the share of K. Ramalinga Reddy and after his death the plaint schedule properties devolved upon his wife Smt. Prameelamma and his daughter and thereafter she sold the property to 7th defendant and later the 7th defendant sold the plaint schedule properties to plaintiffs. It is further the case of the plaintiffs that the Tahsildar, Holagunda issued pattadar pass book in respect of the plaint schedule properties in favour of the 7th defendant by over- ruling the objections raised by the 1st defendant, on that the 1st defendant preferred an appeal before the Revenue Divisional Officer,

Adoni and on that the Revenue Divisional Officer, Adoni, remanded the matter to the Mandal Revenue Officer, Holagunda for fresh disposal, as such, they have filed the suit for declaration of title , confirmation of possession and for permanent injunction.

23. On the other hand, it is the contention of the defendants that the father of the defendants 1 and 2 , by name Narsi Reddy is the brother-in-law of Siva Rami Reddy and the said Narsi Reddy was having Ac.4.67 cents in Sy.No.136A and due to close relationship between Siva Rami Reddy and Narsi Reddy, an oral exchange had taken place between them in the year 1955 and in that oral exchange,

Ac.4.67cents in Sy.No.136A was given to Siva Rami Reddy and the plaint schedule properties were given to G. Narsi Reddy by Siva Rami

Reddy and though the oral exchange was not valid in the eye of law, the defendants have perfected their title over the plaint schedule properties by adverse possession, as such, the plaintiffs are not entitled for the relief as prayed for.

24. The learned counsel for the defendants/appellants has argued that in order to prove exchange, there is no direct document, as such, the defendants are relying-upon the circumstantial evidence and there are strong circumstances, which probablises the exchange.

25. The defendants are relying upon the following circumstances, in proof that there was an exchange of lands between G. Narsi Reddy and Siva Rami Reddy:

1) K. Neelakanta Reddy -PW2 and Smt. Prameelamma daughter-in- law of Siva Rami Reddy sold the land in Sy.No.136A, though they have no such extent in that survey number.

2) G. Narsi Reddy father of the 1t defendant has claimed the land

before the Land Ceiling Tribunal. On the contrary, neither Siva Rami

Reddy nor his legal heirs have shown the lands in Land Ceiling

Records.

3) Smt. Rangamma mother of the 1st defendant executed a

Registered Will in respect of the plaint schedule lands in the year 1996 itself.

4) Ex.B4- pass book stands in the name of Smt. Rangamma widow of G. Narsi Reddy.

5) If Ex.A9 Xerox copy of pass book filed by the plaintiffs is true, the suit lands should have been mentioned in the subsequent title deeds and pass books issued in the name of three minor daughters of

Smt. Prameelamma.

6) The defendants filed land revenue receipts from 1981 to 2002, inrespect of suit schedule properties.

26. On the other hand, the learned counsel for the plaintiffs/ respondents has argued that the main defence set-up by the defendants is adverse possession and in view of Section 118 of

Transfer of Property Act, exchange of property should be by a registered document and admittedly no document was executed in respect of exchange of properties and when it is not under a document, it can be said that there is no such exchange. In support of his arguments regarding exchange, the learned counsel for the plaintiffs has relied-upon a decision reported in 2002 (6) A.L.T. 296 between ASHOK VS. BABA RAO AND ANOTHER.

27. The learned counsel for the plaintiffs has further argued that if any person is aggrieved by an entry made in any record of rights, he may institute a suit .He has further argued that mutation of entries will not convey or extinguish the title in properties and these entries are relevant only for the purpose of collection of land revenue. In support of his arguments on that proposition, he has relied-upon the decisions reported in 1997 (4) A.L.T. 17 (SC) between BALWANT SINGH

AND ANOTHER VS. DAULAT SINGH (DEAD) BY L.RS AND OTHERS and

A.I.R. 2019 SC 719 between SMT. BHIMABAI MAHADEO KAMBEKAR (D)

THROUGH L.R. VS. ARTHUR IMPORT AND EXPORT COMPANY AND

OTHERS.

28. The learned counsel for the plaintiffs has further argued that no parties shall travel beyond pleadings and without pleadings, no evidence can be looked into. In support of his argument on that aspect, he has relied-upon a decision reported in 2017 (4) HLT 287 (SC) between SHIVAJI BALARAM HAIBATTI VS. AVINASH MARUTHI

PAWAR.

29. The learned counsel for the plaintiffs has further argued that no amount of proof can substitute pleading which is the foundation of the claim of a litigating party. In support of his argument on that aspect, he has relied-upon a decision reported in

A.I.R. 1996 (SC) 112 between ABUBAKAR ABDUL INAMDAR (DEAD) BY

L.RS. AND OTHERS VS HARUN ABDUL INAMDAR AND OTHERS.

30. The learned counsel for the plaintiffs further argued that a person who claims title to the property by adverse possession must allege and prove when the adverse possession was commenced and the nature of possession. In support of his arguments on that aspect, he has relied-upon the following decisions:

1) A.I.R. 1996 MADRAS 468 between NATESAN VS. CHINNACHI

KANDAR AND OTHERS.

2) 2010 (3) A.L.T. 247 between GUNDU PARVATHAMMA VS.

PENUBARTHI SREENIVASULU.

3) A.I.R. 2004 (All) 27 between RAMAN LAL (D) BY L.RS. VS. SMT.

CHAMPI (D).

4) A.I.R. 2011 (SC) 1480 between CHATTI KONTAI RAO AND

OTHERS VS. PALLE VENKATA SUBBA RAO.

5) A.I.R. 1995 (ORISSA) 233 between ATUL CHANDRA ADHIKARI

VS. STATE OF ORISSA.

6) A.I.R. 2005 (PATNA) 51 between LALMUNI DEVI VS. JAGDISH

TIWARY.

31. The learned counsel for the plaintiffs has further argued that mere delivery of possession without instrument cannot confer any title. In support of his arguments, he has relied-upon the decisions reported in 1) A.I.R. 1993 (Delhi) 19 between R.N. DAWAR VS. GANGA

SARAN DHARNA and 2) A.I.R. 1998 (Patna) 1 between RUKAIYA BEGUM

VS. FAZALUR RAHMAN.

32. The learned counsel for the plaintiffs has further argued that the entries in record of rights will not confer any title, but they show prima-facie evidence of title until contrary is proved and the dispute of rival title has to be decided by Civil Court and not by authorities under the Act. In support of his arguments on that facet he has relied upon a decision reported in 2003 (1) A.L.T. 615 between V. GOUTHAM

RAO VS. THE REVENUE DIVISIONAL OFFICER, JAGTIAL, KARIMNAGAR

DISTRICT AND ANOTHER.

33. There is no dissension with regard to the proposition of law laid down in the decisions relied-upon by the learned counsel for the plaintiffs.

34. The learned counsel for the plaintiffs by relying upon the decision reported in 2002 (6) A.L.T. 296 between ASHOK VS. BABA RAO

AND ANOTHER, has argued that without registered document, oral evidence cannot be considered in proof of exchange. It is settled law that exchange of immovable property worth more than Rs.100/- shall be made only by a registered document.

35. On the other hand, the learned counsel for the defendants has argued that though oral sale is invalid, the purchaser gets title by adverse possession by twelve years. In support of his arguments, he has relied-upon a decision reported in A.I.R. 1985 (AP) 200 between M.

LAKSHMIDEVAMMA VS. LAND ACQUISITION OFFICER.

36. The learned counsel for the defendants has further argued that the title and adverse possession are not mutually destructive. In support of his arguments on this aspect, he has relied-upon a decision reported in A.I.R. 2009 (SCW) 5439 between L.N. ASWATHAMA VS. P.

PRAKASH.

37. There is no dispute that K. Siva Rami Reddy is the original owner of the property situated in suit survey plot No.74B which includes the plaint schedule property. The plaintiffs also filed Ex.A3- registered sale deed dated 08-02-1946 in favour of K. Siva Rami Reddy under which he has purchased the properties, including the plaint schedule properties. However, there is no dispute about the ownership of suit Sy.No.74B. But, having admitted that Siva Rami

Reddy is the owner of the plaint schedule properties, the defendants came-up with a plea of oral exchange. Admittedly, there is no document for the alleged exchange. As such, the defendants have projected some circumstances in order to prove the oral exchange.

38.As seen from Ex.B1, the Additional Revenue Divisional

Officer, Adoni, has categorically mentioned in the order under Ex.B1, that the fact of receipt of declaration was made available for public inspection and announcement by beat of Tom-Tom in the village, but no objections have been received. Ex.B15 verification report of the

Land Ceiling Officer, goes to show that he has verified the declaration given by Narsi Reddy and others with records concerned and found correct. Ex.B15 goes to show that it is the list of details of lands under control (possession) of the declarant. The plaint schedule lands were shown to be under the control (possession) of Narsi Reddy. Thus, the declaration given by Narsi Reddy that he is in possession of the lands was confirmed by the Special Deputy Tahsildar and thereafter only the Land Reforms Tribunal passed orders regarding the holdings of Narsi Reddy, (the declarant) ,stating that Narsi Reddy is holding plaint schedule lands apart from other lands. Admittedly, PW2 and his family members did not show the plaint schedule lands, as their holdings in their declarations .

39. Admittedly, the father of PW2 viz., Siva Rami Reddy did not claim the suit land in the declaration submitted before the Land

Ceiling Tribunal. On the other hand, even the father of the first and second defendants by name Narsi Reddy also did not show the plaint schedule properties in his declaration. But, according to the defendants, though at first instance Narsi Reddy did not show the plaint schedule properties in the declaration, subsequently he has shown the schedule properties in the additional declaration. But, no such additional declaration was filed by the defendants. However, basing on the declarations submitted by Narsi Reddy and his sons, verification report- Ex.B15 was issued by the Land Ceiling Tahsildar,

Adoni. In verification report- Ex.B15, the plaint schedule lands were shown as the holdings of Narsi Reddy, the father of the1st defendant.

Even in Ex.B2- statement given by Karanam Naraimhachari, before the

Land Reforms Tribunal, he has categorically mentioned that the plaint schedule properties are the holdings of G. Narsi Reddy. The said statement was given on 18-06-1976. The Land Reforms Tahsildar who has conducted enquiry and received declarations passed orders under

Ex.B1 in CC No.953/511/ 512/531/770 & 639/ALR showing the lands held by Narsi Reddy. In the list of holdings by G. Narsi Reddy, the plaint schedule properties were also shown at page No.7 of the said

Order. Ex.B1 goes to show that a public notice was issued and declarations were received from the persons holding the lands and the fact of receipt of declaration was made available for public inspection and was also announced by beat of Tom-Tom in all the villages.

Thereafter, an enquiry was conducted on 24-01-1977 and 28-01-1977 and after conducting enquiry, the lands held by G. Narsi Reddy and his family members were notified. It is not at all the case of PW2-

Neelakanta Reddy and Smt. Prameelamma, the son and daughter-in- law of Siva Rami Reddy that they have raised any objection for the declaration submitted by Narsi Reddy stating that the plaint schedule lands belonged to them. Thus, Ex.B1, Ex.B2 and Ex.B15 go to show that Narsi Reddy was in possession of the plaint schedule properties by 1976 and 1977. As already discussed, Ex.B1 goes to show that a public notice was issued and the declaration in respect of holdings received was published and the same was also made available for public inspection in the office of Tribunal and the same was also announced by beat of Tom-Tom in all the villages. So, the fact of

Narsi Reddy claiming the property and his possession over the plaint schedule properties was made known to the public including the family members of Siva Rami Reddy who were also residents of the same villages. So, the children of Siva Rami Reddy might be aware of the declarations made by Narsi Reddy and his family member’s .But no objections were raised by them. Thus, the possession over the plaint schedule properties by Narsi Reddy and his family members is continuous, uninterrupted, open and to the knowledge of the family of Siva Rami Reddy.

40. In Lakshmidevamma’s case referred supra relied-upon by the learned counsel for the defendants, their Lordships have held that: “In view of the oral sale in the year 1953, the 1 st claimant’s

sons would acquire title only on completion of 12 years of

possession of property and not before.” Their Lordships have further held that: “The possession of the 1 st claimant from 1970 is

borne out by tax receipts Ex.A1 to Ex.A7. We have therefore no

hesitation in coming to the conclusion that the 1 st claimant’s sons

acquired title by adverse possession.”

41. The above decision is rightly applicable to the present case, as the facts of both the cases are similar. In the present case, though the defendants have not pleaded oral sale they came-up with a plea of oral exchange. The sale is required to be under a registered document only. Likewise, the exchange should also be under a registered document. In the case relied-upon by the learned counsel for the defendants, their Lordships have held that, when oral sale is pleaded, the party would acquire title on completion oftwelve years of possession of the property.

42. The learned counsel for the plaintiffs has argued that the defendants who have taken the plea of adverse possession has to give the date when they came into possession. Here, though the defendants have not given the date, their specific case is that the exchange had taken place in the year 1955. The statement given by

Karanam Narasimhachari was on 18-06-1976 under Ex.B2 and the orders passed by Land Reforms Tahsildar is dated 28-01-1977 .These documents go to show that Narsi Reddy was in possession of the plaint schedule properties by 1976-1977. Thus, Ex.B1 and Ex.B2 go to show that Narsi Reddy was in possession of the plaint schedule properties. The exchange was said to be taken place in the year 1955.

So, the twelve years period was completed by 1967 itself. As such, it can be said that the defendants have perfected their title by adverse possession, as they are in possession of the plaint schedule properties for continuous period of more-than twelve years, since the date of exchange.

43. Admittedly, the children of Siva Rami Reddy have not shown the plaint schedule properties in their declarations submitted before the Land Reforms Tahsildar. The plaintiffs filed Ex.A4 to Ex.A7 cist receipts dated 21-05-1973, 13-05-1972, 05-04-1982 and 29-03-1982 in favour of Neelakanta Reddy and Ramalinga Reddy, the sons of Siva

Rami Reddy. But, the plaint schedule lands were not shown in Ex.A4 to

Ex.A7 cist receipts. On the other hand, Ex.B1, Ex.B2 and Ex.B15 go to show that the defendants claimed the plaint schedule properties as that of their properties and they were in possession and enjoyment of the schedule properties.

44. The learned counsel for the defendants has argued that the defendants filed land revenue receipts from 1980 to 2002 i.e., for a period of 22 years and they contain the suit survey number and its one of the circumstances to prove the case of the defendants.

45. It is true, that the defendants filed the land revenue receipts under Ex.B11. As seen from Ex.B11 cist receipts, the plaint schedule survey number was shown in the cist receipts dated 25-02-1981, 17- 03-1982 and 30-07-1982, in the name of Smt. G. Rangamma W/o. Narsi

Reedy and Hanumantha Reddy S/o. Narsi Reddy (1st defendant), for the faslies 1389 to 1394 the name of Smt. Rangamma and the second defendant were shown in those receipts. The Rytu Pass Book-Ex.B4 is also in the name of Smt. Rangamma for the suit schedule properties.

According to the defendants, Rangamma has executed the registered

Will on 28-09-1996. But the registered Will was not challenged by the plaintiffs, even after filing of written statement also. However, the defendants by examining DW2 have proved the execution of Will by

Smt. Rangamma. There is no worth cross-examination of DW2. Except that Smt. Rangamma has no title to execute the registered Will, the plaintiffs did not dispute the Will executed by Smt. Rangamma. The defendants by examining DW2 who is one of the attestors of the Will has proved the execution of registered Will. Thus, Ex.B11 and Ex.B4 -

Rytu pass book in the name of Smt. Rangamma and Ex.B6 registered will are taken into consideration, Smt. Rangamma was in continuous possession and enjoyment for more than twelve years period. Thus, the family of the defendants perfected their title by adverse possession. Thus, Ex.B11 and Ex.B6 go to show that the defendants were in possession and enjoyment of the schedule properties for more than twelve years. Thus the documents filed by both parties go to show that the children of Siva Rami Reddy never claimed the plaint schedule properties as that of their property subsequent to 1955 upto issuance of proceedings by the Mandal Revenue Officer dated 20-11- 2002 under Ex.A16 under which he has issued Pattadar Pass Book in favour of Smt. K. Nagalakshmamma wife of K. Neelakanta Reddy- PW2.

Thus, the evidence discloses that the defendants have perfected their title by adverse possession, being in continuous possession and enjoyment of the schedule properties for more than twelve years.

46. In Aswathama’s case referred above, relied upon by the learned counsel for the defendants, their Lordships have held that:

“When a person is in possession asserting to be the owner, even if

he fails to establish his title, his possession would still be adverse

to the true owner. Therefore, the two pleas put forth by the

defendant in this case are not inconsistent pleas but alternative

pleas available on the same facts.”

47. The learned counsel for the plaintiffs has argued that a bald plea of adverse possession has taken by the defendants and no alternative plea was taken and absolutely there is no plea at all regarding adverse possession.

48. As seen from the written statement filed by the defendants, they have categorically mentioned that though oral exchange may not be valid in the eye of law, they have perfected their title by adverse possession. Thus, the defendants have specifically taken the plea of adverse possession, though they have not specifically mentioned the word ‘in alternative’. On careful reading of the entire written statement, it goes to show that the defendants have taken the alternative plea of adverse possession, in case oral exchange is not valid. As such, the argument of the learned counsel for the plaintiffs, that there was no specific plea regarding the adverse possession, is not tenable. So, as laid down in Aswathama’s case referred supra relied upon by the learned counsel for the defendants, though the defendants failed to establish their title, by virtue of the alleged oral exchange, they have proved their possession over the schedule properties by adverse possession.

49. It is the case of the defendants that, their father had Ac.4.67 cents in Sy.No.136 A and that was exchanged with Siva Rami Reddy for plaint schedule properties. However, the plaintiffs are denying the said exchange. According to PW2, their father purchased the land in

Sy.No.136A, as such, the exchange pleaded by the defendants is not correct. But, no document was filed by the plaintiffs in proof of purchase of the land in Sy.No.136A by their father Siva Rami Reddy.

But the defendants filed Ex.B7 certified copy of register of holdings, which shows that Kothinti Siva Rami Reddy had Ac.1.18 cents in

Sy.No.136 A. Narsi Reddy’s land was shown as northern boundary for the said land. Thus, Ex.B7 goes to show that Siva Rami Reddy had only Ac.1.8 cents in Sy.No.136A. But admittedly, PW2 sold away

Ac.3.00cents in Sy.No.136-A and his sister-in-law Prameelamma also sold Ac.1.40 cents and the same is evident from Ex.B9- encumbrance certificate. Further as per Ex.B7, K. Siva Rami Reddy had only Ac.1.18 cents in Sy.No.136A, but Ex.B9- encumbrance certificate shows that

PW2 along with his sister-in-law sold Ac.4.40 cents, as against Ac1.18 cents which his father had purchased. No explanation was offered by

PW2 as to how he along with his sister-in-law could able to sell

Ac.4.40cents when his father had purchased Ac.1.18 cents only. It is not the evidence of PW2 that his father had purchased some more extent in Sy.No.136A. In the absence of any such explanation and evidence, it can be safely presumed that by virtue of exchange of

Ac.4.67 cents in Sy.No.136A for the plaint schedule properties, PW2 and his sister-in-law were able to sell Ac.4.40 cents in Sy.No.136A.

50. The learned counsel for the plaintiffs has argued that no reason was put-forth as to why the father of PW2 had exchanged the plaint schedule properties, as such, the plea of exchange put-forth by the defendants is false.

51. I see no force in the argument of the learned counsel for the plaintiffs. The defendants have categorically mentioned in the written statement that Siva Rami Reddy had Ac.1.18cents in Sy.No.136A and in order to make it contiguous plot, he has requested his brother-in- law i.e., father of the 1st and 2nd defendants to exchange their land in

Sy.No.136A, for that, Narsi Reddy agreed and they both exchanged the land in Sy.No.136A and the plaint schedule lands. As already discussed, Ex.B7 goes to show that Narsi Reddy had his land towards north of the land in Sy.No.136A of Sivarami Reddy. As seen from

Ex.B3, the names of G. Basanna Goud, Neelakanta Reddy and

Ramalinga Reddy were mentioned as against Sy.No.136A. Basanna

Goud is the grandfather of the 1st defendant. As already discussed, in

Ex.B7, northern boundary of the land of Siva Rami Reddy was shown as the share of Narsi Reddy. Thus, the explanation offered by the defendants for the exchange of land is proved by Ex.B7. Moreover, according to PW2, the plaint schedule survey number was not fertile land in the year 1955. As such, the father of the defendants might have exchanged Ac.4.67 cents to Siva Rami Reddy and received

Ac.6.38 cents.

52. It is no doubt that the plaintiffs filed adangals for the faslies 1396 to 1409 in favour of Ramalinga Reddy and Smt. Prameelamma and the same were marked as Ex.X1 to Ex.X9. In Ex.X1 to Ex.X4 copies of adangals for the faslies 1396 to 1399 the name of Ramalinga Reddy and Neelakanta Reddy were shown as Pattadars. However in Ex.X1 to

Ex.X4 the enjoyer’s column was kept blank.According to PW2, partition had taken place, among himself and his brother Ramalinga

Reddy and the plaint schedule properties fell to the share of

Ramalinga Reddy. When such is the case, the entries in Ex.X1 to Ex.X4 showing Ramalinga Reddy and Neelakanta Reddy as pattadars seems to be false and against the case of Plaintiffs.

53. Even as per adangals filed by the plaintiffs under Ex.X1 to

Ex.X9, neither Siva Rami Reddy nor his family members were in possession and enjoyment of the plaint schedule property, since 1955 to 1977 during which period the Land Reforms Tribunal held that

Narsi Reddy is the owner of the suit properties. As per Ex.X5 to Ex.X8, copies of adangals for the faslies 1400, 1402, 1403 and 1408

Ramalinga Reddy was shown as pattadar and Smt. Prameelamma was shown as enjoyer. The adangals for the faslies 1400 to 1408 correspond to the years 1990 to 1998. But according to PW2 his brother Ramalinga Reddy died in the year 1977. As such the entries in

Ex.X1 to Ex.X8 showing Ramalinga Reddy as Pattadar also seems to be false.

54. Moreover, the plaintiffs have examined the Deputy Tahsildar as PW3. As already discussed the cist receipts filed under Ex.A4 to

Ex.A7, by the plaintiffs do not contain the suit survey number. If really either Ramalinga Reddy or his wife were in possession of the suit schedule properties, their names would have been found place in the cist receipts. PW3, the Deputy Tahsildar also deposed that the names in favour of whom, the land revenue receipts are issued shall be mentioned in the adangals and the enjoyers will be given land revenue receipts. He further deposed that the names found in land revenue receipts are not tallyingwith the names found in the enjoyer’s column in the adangals and there is possibility of making wrong entries, since the land revenue receipts are differing in this case. In view of the evidence of PW3, Ex.X1 to Ex.X9, the copies of adangals, which,show Ramalinga Reddy as Pattadar and Smt.

Prameelamma as enjoyer in respect of some faslies cannot be relied- upon, in the light of Ex.A4 to Ex.A7, which do not contain the names of either Ramalinga Reddy or Smt. Prameelamma as enjoyers of the plaint schedule properties.

55. Another circumstance which unveil that the case put-forth by the family members of Siva Rami Reddy is not correct, is the proceedings of the Revenue Divisional Officer, Adoni, dated 13-06- 2003 marked as Ex.B5 and the proceedings of the Mandal Revenue

Officer, Holagunda dated 20-11-2002 marked as Ex.B8 under which he has issued pass book in favour of wife of PW2 byname Smt.

Nagalakshmamma who said to have purchased the property from Smt.

Prameelamma under Ex.A2. As seen from Ex.B8 proceedings of the

Mandal Revenue Officer, Holagunda, he has categorically mentioned that Smt. K. Nagalakshmamma wife of Neelakanta Reddy applied for pattadar pass book and title deed in respect of the plaint schedule

Sy.No.74B1A for an extent of Ac.1.86 cents and Sy.No.743B3 stating that she purchased the plaint schedule properties from Smt.

Prameelamma. Ex.B8 further reads that Smt. K. Nagalakshmamma has produced Encumbrance Certificate since 1946 to 2002 issued by Sub-

Registrar, Adoni, in respect of the suit schedule properties, wherein it was mentioned that Smt. Nagalakshmamma is the owner of the plaint schedule properties. It is not at all the case of PW2, that Smt.

Nagalakshmamma is the owner of the plaint schedule properties.

According to the plaintiffs and even according to the defendants, K.

Siva Rami Reddy father of Neelakanta Reddy is the original owner of the plaint schedule properties. The plaintiffs filed Ex.A3 which shows that Siva Rami Reddy purchased the lands in suit survey number. As such, Siva Rami Reddy is the original owner of the suit schedule properties. It is not at all the case of the plaintiffs or children of Siva

Rami Reddy that Smt. Nagalakshmamma is the owner of the plaint schedule properties. It appears that Smt. Nagalakshmamma, the wife of PW2 produced Encumbrance Certificate showing that she is the owner of the lands since 1946 upto 2002. The Revenue Divisional

Officer in his proceedings under Ex.B5 has rightly observed that some tactics have been played in these transactions. Moreover, As per

Ex.B8- proceedings of the Mandal Revenue Officer, Smt.

Nagalakshmamma claims to be the owner of the plaint schedule properties from 1946 to 2002. When such is the case, Smt.

Nagalakshmamma again purchasing the plaint schedule properties from Smt. Prameelamma, does not arise. It gives rise to a doubt that some mischief has been played by her. Admittedly some portion of the land in suit survey number was acquired for T.B.P. canal.

According to PW2, their father was paid compensation for acquisition of land. Whereas, according to the defendants, their father Narsi

Reddy was paid compensation. But, both parties have failed to produce any evidence in respect of date of acquisition, grant of compensation and the name of the person to whom the compensation was paid. However, that is not a consideration in this suit, as it is not the case of the defendants that out of the land exchanged, the

Government acquired the land.

56. The plaintiffs filed Xerox copy of Rytu Pass book under Ex.A9 in favour of Smt. Prameelamma. The name of Smt. Prameelamma as minor guardian of Vasundhara, Haritha and Rameswaramma was noted in Ex.A9 in respect of the suit schedule property and some other properties. The defendants filed pattadar pass book in the name of Vasundhara under Ex.B12 and Pattadar Pass Book in the name of Rameswari under Ex.B13. The suit schedule property was not noted in favour of Vasundhara and Rameswaramma in Ex.B12 and Ex.B13.

Moreover, according to PW2, in the partition between him and his brother Ramalinga Reddy, the plaint schedule property fell to the share of Ramalinga Reddy. However, he failed to say when the partition had taken place and which properties fell to his share and the share of Ramalinga Reddy.

57. According to PW1 after the death of Ramalinga Reddy, the property fallen to the share of Ramalinga Reddy was devolved upon his wife Smt. Prameelamma and daughters and they were in possession and enjoyment of the plaint schedule properties.

Admittedly, Ramalinga Reddy died in the year 1977. So, his daughters might have born prior to 1976. So, they might have become majors’ atleast by 1993. If the case of the plaintiffs is true, the names of Smt.

Prameelamma and her daughters should have been found place in the revenue records produced by the plaintiffs. But, in Ex.A9 the names of daughters of Ramalinga Reddy alone were mentioned. In Ex.X1 to

Ex.X9, the name of Smt. Prameelamma was mentioned in respect of some faslies. Though, the daughters of Ramalinga Reddy are majors and married, their names are not shown in the adangals under Ex.X1 to Ex.X9, even for the faslies 1403, 1408, 1409 and 1412. But as seen from Ex.X7 to Ex.X9 and Ex.A14, the names of daughters of Smt.

Prameelamma were not shown as enjoyers of the plaint schedule lands. If the properties are that of Smt. Prameelamma and her daughters, they all have to sell the properties to Smt.

Nagalakshmamma .But the evidence shows that Smt. Prameelamma alone sold the properties to Smt. Nagalakshmamma.**According to

PW1 before partition Neelakanta Reddy and Ramalinga Reddy were in possession of the plaint schedule properties and they have paid land revenue to the plaint schedule lands. But, as already discussed Ex.A4 to Ex.A7 do not reflect the suit schedule survey numbers. PW1 filed

Ex.P15 extract of village settlement register. This document goes to show that the plaint schedule lands were in the name of Smt.

Shankaramma the mother of Neelakanta Reddy and Ramalinga Reddy, as their guardian. Neelakanta Reddy was examined as PW2 in the year 2007. He has shown his age as 70. If he is aged about 70 years by 2007, he might have born in the year 1930. So, he might have become major by the year 1955 itself. According to PW2 his father died in the year 1956. As such, he was major by the date of death of his father.

But, inspite of that, the plaintiffs produced Ex.A15 showing that the mother of Neelakanta Reddy and Ramalinga Reddy, as owner of the plaint schedule properties, as minor guardian. When Neelakanta

Reddy - PW2 was major, showing his mother as minor guardian, is against the case of the plaintiffs. These all creates a doubt about the genuineness of the case put-forth by the plaintiffs .

58. The plaintiffs claimed that Smt. Prameelamma sold the property to Smt. Nagalakshmamma and she in turn sold the same to them. As against their case, the plaintiffs produced Ex.A9 showing that the plaint schedule properties were devolved upon the minor children of Ramalinga Reddy. Whereas, according to PW2, after the death of Ramalinga Reddy, the suit schedule properties were devolved upon the wife of Ramalinga Reddy by name Smt. Prameelamma.

However, as already discussed, Ex.B12 and Ex.B13 pattadar pass books do not reflect the entries in Ex.A9.

59. The plaintiffs tried to project the case, as if the plaint schedule properties were succeeded to by the minor children of

Ramalinga Reddy. But, they have produced Ex.X1 to Ex.X9 adangals showing that the plaint schedule properties were succeeded to by Smt.

Prameelamma after the death of her husband. Thus, the plaintiffs are not specific as to their case. Moreover, as already discussed, no evidence was produced regarding partition that took place between

Ramalinga Reddy and Neelakanta Reddy and about the properties fallen to the share of Ramalinga Reddy.

60. The learned counsel for the defendants has argued that even constructive possession is sufficient as laid down in a decision between CHANDRAKANTABEN WIFE OF JAYANTILAL BAPALAL MODI,

NARENDRA JAYANTILAL MODI VS. VADILAL BAPALAL MODI reported in

A.I.R. 1989 SC 1259. In support of his arguments on that aspect, the learned counsel for the defendants has relied-upon the decision reported in LAWS (SC) 2009 3 212 between STATE OF PUNJAB VS. RAM

PAL.

61.As already discussed, the cist receipts filed by the defendants and the orders passed by the Land Reforms Tribunal under Ex.B1 go to show that the defendants are in possession of the plaint schedule properties.

62. The learned counsel for the defendants has argued that the facts can be proved by circumstantial evidence. In support of his arguments on that aspect, he has relied-upon a decision reported in 2009 A.L.D.(Crl.) 2 353 between DILODH ASHOK VS.STATE OF ANDHRA

PRADESH.

63. The above decision is with regard to finding the accused guilty basing on the circumstantial evidence. So, that decision has no application to the present case.

64. The learned counsel for the defendants has argued that the trial Court simply applied presumption in law that if both the parties do not prove the possession, court may conclude that possession is with the title holder of the land and the trial Court failed to notice that presumption is only rebuttable, as laid down in the decision reported in 2019 LAWS (BOMBAY) 4 155 between

DHONDIBA S/O. NAGU JAGTAP VS. MARUTI S/O. LAHANU SHINDE.

65. Having taken the plea of exchange, though the defendants failed to file any document in proof of exchange, they are depending on the circumstances to show exchange. Even otherwise, the defendants have taken alternative plea that they have perfected the title by adverse possession.

66. As discussed above, the defendants have proved their possession over the plaint schedule properties. Irrespective of the fact that whether the defendants have proved or not, the burden is on the plaintiffs, who approached the Court seeking for the relief, to prove their contention.

67. According to the plaintiffs Siva Rami Reddy is the original owner of the schedule properties and in the partition the suit schedule property fell to the share of Ramalinga Reddy and thereafter it was succeeded to by Smt. Prameelamma and she inturn sold the same to Smt. Nagalakshmamma and Smt. Nagalakshmamma in turn sold the same to the plaintiffs. But as already discussed, though there is evidence that Siva Rami Reddy is the original absolute owner of the schedule properties, there is absolutely no evidence in proof that a partition had taken place between Ramalinga Reddy and Neelakanta

Reddy- PW2 and the plaint schedule properties fell to the share of

Ramalinga Reddy. Further there is no consistent evidence in proof that the schedule properties were devolved upon, either the wife or the children of Ramalinga Reddy. The documents produced by the plaintiffs are self-contradictory. The Revenue Divisional Officer,

Adoni, also cancelled the pass book issued in favour of Smt.

Nagalakshmamma holding that she has produced the documents by playing tactics. Thus, the plaintiffs failed to prove their right and title over the schedule properties. As such, they are not entitled for declaration. The plaintiffs also failed to prove their possession. As such, they are not entitled for confirmation of possession and for consequential permanent injunction. The points are answered accordingly.

68. POINT NO.4: Whether the judgment of the trial Court is sustainable in law or it requires any interference by the appellate

Court?

69. In view of the findings on points 1 to 3, this Court holds that the learned trial Judge has not appreciated the oral and documentary evidence available on record in proper perspective and as such, the

Judgment and decree of the trial Court has to be set aside. The point is answered accordingly.

70. POINT NO.5: To what relief?

71. In the result, the appeal is allowed setting aside the

Judgment and Decree dated 26-09-2011 passed by the learned Senior

Civil Judge, Adoni, in O.S. No.46/2003. Consequently, the suit in O.S.

No.46/2003 on the file of Senior Civil Judge, Adoni, is dismissed.

There is no order as to costs.

Dictated to the Stenographer Gr.1, transcribed by him, corrected and pronounced

by me in open Court, this the 16 th day of April, 2020.

SD/-N.SANTHI.

II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.

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IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE: KURNOOL AT

ADONI.

PRESENT: Smt. N. Santhi, II ADDITIONAL DISTRICT JUDGE.

WEDNESDAY, THE 30TH DAY OF JUNE, 2021.

APPEAL SUIT NO.36 OF 2015.

1. Konda Bojjanna died by L.Rs.

2. Konda Padmavathi.

3. Konda Harichandra.

4. Konda Anand.

5. Konda Hanumanthamma.

6. Konda Lakshmi.

Appellants 2 to 6 are added as per orders in I.A.No.693/2018 Dt: 24-10-2019. … Appellants.

Versus.

Pavan Kumar. … Respondent.

Appeal against the Judgment and Decree Dt.20-04-2015 passed by Learned Senior Civil Judge, Adoni, in O. S. No.27/2011.

Between:

Konda Bojjanna. … Plaintiff.

And

Pavan Kumar. … Defendant.

This Appeal came up on 22-06-2021 for final hearing before me in the presence of Sri. K. Venkata Swamy, Advocate for the Appellants and of P. Rajendra Prasad, Advocate for the respondent and having stood over for consideration till this day this Court delivered the following:

: J U D G M E N T :

1. This is an appeal preferred against the judgment and decree

dated 20-04-2015 passed by learned Senior Civil Judge, Adoni, in O.S.

No.27/2011.

2

2. The parties to the appeal would be referred as arrayed before the trial Court for the sake of convenience and to avoid confusion.

3. The plaintiff filed the suit for specific performance of agreement of sale and for permanent injunction.

4. The averments of the plaint in brief are:

5. The defendant offered to sell the suit schedule property and the plaintiff accepted to purchase the same.

6. On 13-08-1999 the plaintiff and the defendant entered into an agreement of sale. The plaintiff paid an amount of Rs.1,15,000/- towards advance out of total sale consideration of Rs.1,60,000/- and the defendant received the same and executed the agreement of sale in favour of the plaintiff in respect of the suit schedule property. On the same day the defendant delivered possession of the plaint schedule property to the plaintiff. The balance sale consideration of

Rs.45,000/- has to be paid to the defendant by the plaintiff and has to obtain a regular registered sale deed. Whenever the defendant receives the balance sale consideration, he has to execute a regular registered sale deed in favour of the Plaintiff. As per the recitals of the sale agreement no time is stipulated in the agreement of sale. Since the date of agreement, the plaintiff is in peaceful possession and enjoyment of the plaint schedule property. The defendant’s whereabouts are not known as he left the village. The plaintiff has made hectic efforts to search the defendant, but could not trace out.

The defendant has become a saint and renounced the world. About 15 3 days back, the defendant came to the village and required the plaintiff to vacate the suit schedule property. The plaintiff offered to the defendant to receive the balance sale consideration of Rs.45,000/- and demanded to execute the regular registered sale deed. The plaintiff is ready and willing to perform his part of the contract, but the defendant evaded receiving the amount and is not willing to perform his part of the contract. The defendant went to the Police Station and influenced the police to vacate the plaint schedule property.

7. On 16-02-2011 the plaintiff issued a legal notice calling upon the defendant to receive the balance sale consideration of Rs.45,000/- and to execute the regular registered sale deed in favour of the plaintiff. In Spite of notice, the defendant tried to alienate the plaint schedule property. The defendant received the notice but did not comply with the same. Hence, the suit.

8. The defendant filed a written statement resisting the claim of the plaintiff. It is the contention of the defendant that the agreement

dated 13-08-1999 said to have been executed by the defendant is not

true and the signature of the defendant is forged and no cash was received by the defendant to a tune of Rs.1,15,000/-. The land in

Sy.No.68 admeasuring Ac.2.15 cents originally belongs to one P.

Lakshmamma. Out of total extent of Ac.2.15 cents, Smt. P.

Lakshmamma sold Ac.1.14 cents to one Pedda Naganna and others in the year 1995. Thus, the balance extent remained is Ac.1.01 cents.

When the defendant is the owner of Ac.1.01 cents in Sy.No.68, the defendant cannot enter into an agreement for the alleged extent of

Ac.2.15 cents. It is ridiculous to state that the defendant executed the 4 agreement of sale in favour of the plaintiff. The agreement of sale is created one to grab the land of the defendant by some method. The unregistered agreement of sale is not at all enforceable. On coming to know that the plaintiff created a false document, the defendant warned the plaintiff for creating a false document and reported the matter to the police. In this connection a case was registered against the plaintiff and his son. The defendant studied up-to B. Tech., and he never used to sign in Telugu at any time and the signature as Pavan

Kumar in Telugu in the agreement of sale dated 13-08-1999 is false and forged one. The attestor and scribe of the forged agreement of sale are no other than the relatives of the plaintiff and with an ulterior motive and to knock away the property of this defendant, they have colluded and created a false agreement of sale. On the date of filing of the suit, the plaintiff was not in possession, so, he cannot seek injunction. The defendant is living in other places and taking into account the absence of the defendant in the village, the plaintiff created the agreement of sale with ulterior motive and filed a false and frivolous suit. Hence the suit is liable to be dismissed.

9. Basing on the pleadings, the trial Court framed the following issues for trial:

1) Whether the suit sale agreement dated 13-08-1999 is true, valid and binding on the plaintiff or not?

2) Whether the plaintiff was ready and willing to perform his part of the contract or not?

3) Whether the plaintiff is not entitled to specific performance of the contract or not?

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4) To what relief?

10. Before the trial Court, on behalf of the plaintiff PW1 to PW4 were examined and Ex.A1 to Ex.A4 were marked. On behalf of the defendant DW1 was examined and Ex.B1 to Ex.B9 were marked.

11. Having heard and perused the record, the learned Senior

Civil Judge, Adoni, dismissed the suit.

12. Having aggrieved by the Judgment and decree of the trial

Court, the plaintiff preferred this appeal assailing the findings of the trial Court on various grounds.

13. No witnesses were examined and no documents were marked on either side before the appellate Court.

14. Heard both sides through video conference via., Blue Jeans

App. The learned counsel for the appellant filed written arguments also.

15. Though the plaintiff has sought for the relief of permanent injunction, no issue was framed in the trial Court and the plaintiff also not raised any objection for not framing any issue on permanent injunction before the trial Court. Hence, there is no need to discuss on that aspect.

16. Now, the points for consideration are:

1) Whether the suit agreement of sale dated 13-08-1999 is fabricated and created by forgery?

2) Whether the plaintiff is entitled to specific performance of 6 the contract as prayed for?

3) Whether the judgment of the trial Court is sustainable in

law or whether it requires any interference by the appellate Court?

4) To what relief?

17. POINTS 1 and 2: 1) Whether the suit agreement of sale

dated 13-08-1999 is fabricated and created by forgery?

2) Whether the plaintiff is entitled to specific performance of the contract as prayed for?

18. Since, these two points are inter-related, they have been taken-up together for discussion

19. Since all these points are interrelated, they have been taken- up together for discussion in order to avoid repetition and overlapping.

20. The arguments of the learned counsel for the plaintiff in nutshell are: Though the defendant had taken a plea that the suit agreement was created by forgery, no issue was framed by the trial

Court. When the defendant has taken a plea of forgery, the burden is on the defendant to prove his contention, but, the defendant failed to send the suit document to the handwriting expert and thereby failed to prove his contention. The plaintiff has examined the attestor and son of the scribe and another and proved the execution of agreement of sale by the defendant and passing of consideration. The defendant after executing the agreement of sale, became saint and left the village and did not visit the village and so, the plaintiff could not pay the balance sale consideration and when the defendant visited the village, 7 he offered to pay the balance sale consideration and demanded the defendant to execute regular registered sale deed, but, the defendant failed to execute the registered sale deed. There is no stipulation in the agreement regarding time of payment of balance of sale consideration and time is not the essence of the contract, so, the defendant has to execute the regular registered sale deed .The plaintiff can deny the title , whereas the defendant cannot deny the title. The plaintiff has proved his case, but, the defendant failed to prove his case, but the trial Court erroneously dismissed the suit and the appeal has to be allowed and the suit has to be decreed. In support of his arguments, he has relied-upon the following decisions:

21. The arguments of the learned counsel for the defendant in brief are: As the defendant has taken a plea of forgery, the burden is on the plaintiff to prove the execution of the agreement, but, the plaintiff failed to prove the execution of agreement of sale. There are interpolations and corrections in the agreement, so it is not enforceable. The Plaintiff slept over for so many years and if really the plaintiff is a bona fide purchaser, he ought to have known the boundaries, but, he deposed that he does not know the boundaries, so, he cannot be said to be a bona fide purchaser. The defendant is a

B. Tech. Graduate and he is not in the habit of signing in Telugu and taking advantage of the absence of the defendant, the plaintiff forged the signature of the defendant and created the agreement of sale and the plaintiff failed to prove his case and the trial Court rightly dismissed the suit and there are no reasons to interfere with the findings of the trial Court, and the appeal has to be dismissed.

8

22. The learned counsel for the defendant has further argued that as per Article 54 of the Limitation Act the suit has to be filed within three years, but, the plaintiff failed to file the suit within three years, so, he is not entitled to the relief. In support of his argument, he has relied-upon a decision reported in 1990 A.I.R. 529 between

RAMZAN VS. SMT. HUSSAINI.

23. The decision is not applicable to the present case. As per article 54 of the Limitation Act, the limitation for filing a suit for specific performance of contract is three years when the time is fixed for performance and if no date is fixed, when the plaintiff has notice, that performance is refused. In the suit agreement, no time was stipulated for performance of contract. As such, the period of limitation has to be reckoned from the date of refusal by the defendant.

24. The Plaintiff has issued notice on 16-02-2011 calling-upon the defendant to execute the registered sale deed within three days.

As there was no response, the plaintiff filed the suit on 28-02-2011. As such, the suit is within the period of limitation.

25. The plaintiff has filed the suit for specific performance of agreement of sale dated 13-08-1999. The defendant is denying the execution of the agreement of sale and contending that it is created by forgery .The defendant is also denying receipt of consideration.

26. The learned counsel for the plaintiff has argued that the defendant has to prove that the document is fabricated. In support of 9 his argument, he has relied-upon a decision reported in 2017 (4)

A.L.D. 1 between SEELAM MALLAIAH DIED BY L.RS. AND OTHERS VS.

P. NARASINGA RAO (DIED) BY L.RS. AND OTHERS.

27. In the above decision, the defendant has taken a plea that playing fraud, his signatures were obtained. Here the defendant is denying the signatures on the agreement and also execution of agreement of sale. As such the citation has no application to the facts of this case.

28. The learned counsel for the plaintiff has strenuously argued that having taken the plea that the suit agreement of sale is created by forgery, the burden is on the defendant to send the suit document to the expert, but he failed to send the document to the expert, so, the plaintiff is entitled to the relief as prayed for.

29. There is no force in the argument of the learned counsel for the plaintiff. Since, the defendant has taken the plea of forgery, the burden is not on the defendant, to send the document to the expert.

As per Sec.102 of the Indian Evidence Act, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. So, even if the defendant failed to send the document to the expert, the plaintiff cannot get the relief as it is the plaintiff who approached the Court seeking for the relief of specific performance. So, the burden is on the plaintiff to prove that the suit document is executed by the defendant and it is not created by forgery. However, none of the parties have sent the document to the handwriting expert, either to prove the execution of the document 10 by the defendant or to prove that it was not executed by the defendant. However, that is not the end of it. The plaintiff, on whom the burden lies to prove that the defendant executed the agreement of sale, can resort to some other mode to prove the execution of the agreement of sale by the defendant.

30. In order to prove his contention, the plaintiff examined himself as PW1. He deposed about his case as set-out in the plaint.

The plaintiff also examined one of the attestors as PW2, who is no other than his brother-in-law. The plaintiff failed to examine another attestor. However, the evidence discloses that another attestor is also a close relative of the plaintiff. The plaintiff examined one D.

Anjinaiah, a third party as PW3.

31. According to the plaintiff, one D. Seshappa is the scribe of the suit agreement of sale and he is no-more. In order to prove that

Seshappa is the scribe of the suit agreement of sale, the plaintiff has examined PW3 and PW4. Though the learned counsel for the plaintiff has argued that he has examined the son of the scribe, PW3 is not the son of the scribe. According to him, Seshappa is his, junior paternal grandfather. Another witness D. Sudhakar was examined as PW4.

According to him the scribe Seshappa is his senior paternal uncle.

PW3 and PW4 in one voice have categorically deposed that Seshappa prepared the agreement of sale. They both deposed about the transaction said to have taken place between the plaintiff and the defendant. But there is no whisper in their evidence that they were present at the time of the said transaction. Their evidence does not disclose through whom they came to know about the transaction. It is 11 not the evidence of PW3 and PW4 that they have seen Seshappa preparing the document. PW3 though deposed in the cross- examination that he was present at the time of execution of Ex.A1 for assisting the scribe, he did not depose the same in his chief- examination. Moreover, this part of evidence of PW3 is not getting corroboration from the evidence of PW1 and PW2. As such, the presence of PW3 at the time of Ex.A1 is doubtful. In the absence of any such evidence, the contention of PW3 and PW4 that the document was prepared by Seshappa, cannot be relied-upon. Moreover, the evidence discloses that the said Seshappa who is said to be the scribe of the document is no-more. None of the witnesses have stated as to when the said Seshappa died. Since the defendant has taken the plea of forgery, the plaintiff has to produce cogent evidence. The plaintiff has to prove that the said Seshappa was alive as on the date of Ex.A1 and he scribed the document. But, none of the witnesses have deposed that Seshappa was alive. They did not even say the date of death of Seshappa.

32. Above all PW3 and PW4 who are examined to speak about the preparation of the document by Seshappa, are not sons of Seshappa and they are distant relatives. The evidence discloses that the children of Seshappa are alive. But, the plaintiff did not choose to examine the children of Seshappa, who will be having much acquaintance with the writing and signature of Seshappa. But, instead of examining the children of Seshappa, the plaintiff has examined the distant relatives of Seshappa. As already discussed, their evidence is not cogent and consistent and their evidence does not disclose that they have got 12 acquainted with the writing and signatures of Seshappa. The plaintiff also failed to produce the admitted signatures of Seshappa, so as to prove that the writing and signature in Ex.A1 is that of Seshappa.

33. The evidence of PW1 to PW4 is also not corroborated with each other regarding the place of execution of the document.

According to PW2, the agreement of sale was executed at the suit house. Whereas, PW3, at first instance deposed that it was executed at the house of the defendant. Later he again stated that it was executed at the house of the plaintiff. Whereas, PW4 deposed that it was executed at the house of the defendant. Thus PW2 to PW4 came-up with different versions regarding the place of execution of Ex.A1.

34. As already discussed, the plaintiff failed to produce the specimen admitted signatures and handwriting of Seshappa to prove that the document was prepared by Seshappa. As per Section 73 of

Indian Evidence Act, the Court is competent to compare the signatures and handwriting. By virtue of power conferred under section 73 of the

Indian Evidence Act, this Court compared the writing of contents of

Ex.A1 with that of the signature of Seshappa the alleged scribe and found the following dissimilarities between the two.

i) Variation in size of the letters; ii) Elongated loop at the commencement of letter ‘sha’ ( )in the signature of Seshappa, is not tallying with the letter ‘sha’ ( )in the body writing.

iii) Loop in the letter ‘sha’ ( ) in the signature is small when compared to the loop in the letter ‘sha’ ( ) found in the body.

iv) extended upward finishing of letter ‘vra ( )’ is seen in 13 signature, whereas, that is missing in the letter ‘vra ( )’ found in the contents of the document.

v) There is half circle across the letter ‘vra ( )’ in the disputed signature, whereas, that half circle is found at the commencement of the letter ‘vra ( )’ wherever ‘vra’ ( ) appears in the contents of the document; vi) The stroke (line) above the letter ‘pa’ ( ) in the disputed writing is slightly half circle facing towards down, whereas, that stroke (line) above the letter ‘pa’ ( ) is not in circle shape and it is straight slanting from down to up; vii) Twisting of letter ‘Sa’ ( ) in the signature of Seshappa is different from that of the letter ‘sa’ ( ) found in the body writing.

vii) Variation in shape of the letters;

35. Thus, there are fundamental dissimilarities between the writing in the signature of Seshappa with that of body writing of the document. Above all, though the learned counsel for the plaintiff argued that the document was scribed by Seshappa, it is clear to the naked eye that the ‘ink’ of the writing of signature of Seshappa is quite different from the ‘ink’ of the writing of the contents of the document. Thus, the plaintiff failed to prove that Seshappa has scribed the document.

36. As already discussed, the defendant is canvassing that the suit document was created by forging his signature. So, apart from proving that the document was scribed by Seshappa, the plaintiff has to prove that the signature on the suit document is that of the defendant.

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37. According to the defendant he has completed B. Tech., and he was never in the habit of subscribing his signature in Telugu.

Whereas, the suit document contains signatures of the defendant in

Telugu. The plaintiff did not choose to produce any document containing the signatures of the defendant subscribed in the natural course of his business, so as to prove that the signature on the suit document is that of the defendant and that he is in the habit of subscribing his signatures in Telugu. But, no such effort was made by the plaintiff to produce the admitted signatures of the defendant to prove that the signature on Ex.A1 is that of the defendant or at least to compare the signature of the defendant with the disputed signature on Ex.A1.

38. As already discussed, PW3 and PW4 are not the persons who were present at the time of the suit transaction. Apart from himself as a witness, the plaintiff has produced one of the attestors as PW2. He is also no other than the brother-in-law of the plaintiff. Another attestor is also a close relative of the plaintiff. The evidence discloses that except the close relatives of the plaintiff, none were present on behalf of the plaintiff at the time of the transaction. The evidence discloses that the defendant is having his relatives at Kundanakurthi Village.

The evidence of PW4 discloses that one of the relatives of the defendant by name Hemantha Reddy worked as Sarpanch of that village. When many of the relatives of the defendant are residents of

Kundanakurthi Village and one among them was Sarpanch of that village, the absence of relatives of the defendant and presence of the relatives of the plaintiff alone at the time of the suit transaction 15 renders the document doubtful. This doubt is further strengthened in view of the evidence of PW1 to PW3.

39. The contention of the defendant is that taking advantage that

Seshappa is no-more, his name was inserted as scribe of the document and Ex.A1 was prepared by forgery.

40. PW1 the plaintiff deposed that Pampaiah and Swamy used to write documents in their village. PW2 deposed that Pampaiah Swamy,

Nagappa, Parishappa and Neelakanta are the document writers of their village. PW3 deposed that Pampaiah Swamy, Nagappa, Parishappa and

Neelakanta used to write documents in their village. Thus, PW2 and

PW3 did not name Seshaiah as one of the document writers of their village. ThoughPW1 deposed that Seshappa and Naganna are also document writers of their village, this part of evidence of PW1 is not supported by the evidence of PW2 and PW3.

41. The plaintiff is canvassing that there is no stipulation in

Ex.A1. It is true that there is no stipulation for performance of the contract. But, it was recited in the document that when the defendant arrives, the plaintiff can obtain the registered sale deed by paying balance sale consideration of Rs.45,000/-. This condition appears to be strange. In general a condition will be stipulated in the agreement, that whenever demanded by the seller, the purchaser has to pay the balance sale consideration. But, Ex.A1 agreement of sale discloses that a strange condition was incorporated in the agreement of sale that whenever the defendant comes to the village, the plaintiff has to pay the balance sale consideration and obtain a regular registered sale 16 deed. If the defendant is aware that he is going out of the village, he would have received the entire balance sale consideration. If the plaintiff was aware that the defendant is going out of the village, he would have obtained a registered sale deed by paying entire sale consideration. But that was not so. According to the plaintiff, after execution of the document the defendant became a saint. If really the defendant had an intention to renounce the world, why he would sell part of his land without receiving the entire sale consideration also gives rise to a doubt about the suit transaction. As admitted by PW1, the defendant is having nearly Ac.40.00cents of land. If that is so, what is the necessity for a person who is going to become a saint to sell a small portion of his huge properties and not to receive the entire sale consideration. This also gives rise to a doubt about the genuineness of the suit agreement of sale.

42. Another circumstance which gives rise to a doubt about the genuineness of the agreement of sale, is, purchase of stamps. As seen from Ex.A1 agreement, it discloses that it was purchased from Stamp

Vendor of Adoni. PW2 deposed that Alur is the very nearest place to

Kundanakurthi and they use to go to Guntakal for shopping. No explanation was offered by the plaintiff for purchasing the stamp papers by going all the way to Adoni from Kundanakurthi Village, which is at a distance of 48 K.Ms. instead of purchasing the stamp papers from nearest places.

43. In a decision reported in 2011 (3) ALT 137 between CHODI

MAHALAKSHMI VS. KOPPADA SATHIRAJU AND ANOTHER, their lordships held that “when execution is denied mere proof of 17

signature of the executant not sufficient. Person relying upon such

document must further establish that executant affixed his

signature after knowing the contents thereof.”

Their Lordships have further held that “even when the executant

affixed his signature, it has to be proved that the executant affixed

his signature after knowing the contents’.

44. The defendant is denying his signature on the suit document as well as the execution of the document. As such, the plaintiff has to not only to prove that the defendant affixed his signature on the document and he has to further prove that after knowing the contents therein, the defendant subscribed his signature. But, none of the witnesses have deposed that after preparing the document, the scribe has read over the contents and having understood the contents, the defendant has subscribed his signature. Since the defendant is denying the execution of the document, apart from proving the execution of the document, the plaintiff has to further prove passing of consideration to the defendant under the document.

45. It is the evidence of PW1 that out of sale consideration of

Rs.1,60,000/-, he has paid Rs.1,15,000/-. But, no document whatsoever was filed by the plaintiff in proof that he has paid part of sale consideration. PW1 deposed that he has paid cash. If that is so, he has to produce the document as to from where he has withdrawn the amount. But, no bank statement was filed showing the withdrawal of the amount said to have been paid to the defendant. Thus, the plaintiff failed to prove the execution of the document as well as 18 passing of consideration.

46. Apart from proving the execution of the document, by the defendant, the plaintiff who filed the suit for specific performance of agreement of sale has to prove that he is ready and willing to perform his part of the contract.

47. As per Sec.16 (c) of the Act, it is the plaintiff who approached the Court seeking for the relief to aver and prove that he has been always ready and willing to perform the terms of the contract. The plaintiff has to prove his continuous readiness and willingness from the date of agreement.

48. According to the plaintiff, after execution of the document, the defendant left the village and became saint and returned to the village in the year 2011 i.e., nearly 12 years after the suit transaction.

Except the bare evidence that he has made hectic efforts, there is no evidence from the plaintiff that he has made all possible efforts to approach the defendant to offer balance of sale consideration.

49. In the decisions reported in 1997 (1) SCR 993 between K.S.

VIDYANADAM AND OTHERS VS. VAIRAVAN and MADRAS HIGH

COURT SECOND APPEAL NO.605/2016 between S. MALLIKA AND

OTHERS VS. R. SARAVANAN AND ANOTHER, their Lordships have held that: “Even where time is not the essence of the contract, the

plaintiff must perform his part of the contract within a reasonable

time and reasonable time should be determined by looking at all the

surrounding circumstances.” 19

50. In view of above decisions merely because no time was stipulated in the document, the plaintiff cannot keep quiet for years together. He has to approach the defendant and pay balance sale consideration within a reasonable time. The evidence discloses that all the relatives of the defendant are residing in the same village. But, the evidence of PW1 is silent about approaching relatives of the defendant to know the whereabouts of the defendant. The plaintiff did not even issue a public notice calling upon the defendant to receive the balance sale consideration and to execute a regular registered sale deed. Thus, there are no sincere efforts and possible efforts from the side of the plaintiff in proof of his readiness and willingness from the date of agreement.

51. According to the plaintiff, the defendant came in the year 2011. In the notice dated 16-02-2011, the plaintiff has mentioned that about one week back the defendant entered into the village of

Kundanakurthi. Except omnibus evidence that one week back the defendant came to the village, he did not specify the date when the defendant came to the village and when he had demanded the defendant tendering the balance sale consideration. However , if we go by the notice dated 16-02-2011, the defendant had entered into the village by 09-02-2011. Even assuming without admitting that the defendant had entered into the village one week prior to issuance of notice, why the plaintiff has kept quiet till 16-02-2011 without issuing the notice is not explained. If really the plaintiff was ready and willing to perform his part of contract, when the defendant had entered into the village after 12 years of the suit transaction, the plaintiff would 20 have approached the defendant immediately with the balance sale consideration and demand him to execute the registered sale deed.

But, the contents of Ex.A2 notice disclose that though the defendant had entered into the village on 09-02-2011, the plaintiff kept quiet till 16-02-2011.

52. It is the contention of the defendant that when he came to the village as the plaintiff was trying to use his open place, he questioned the plaintiff and warned him and gave a report against him on 16-02- 2011. According to the plaintiff he issued notice on 16-02-2011. It appears that oncoming to know that the defendant had given a report against him, the plaintiff issued the notice. Though the notice -Ex.A2 is dated 16-02-2011, the postal receipt -Ex.A3 goes to show that it was posted on 17-02-2011. So, it is clear from the evidence that only after the defendant lodged the report, the plaintiff issued the notice. The plaintiff kept quiet all these years without making all possible efforts to get the registered sale deed obtained. Though the plaintiff had filed the suit on 28-02-2011, he had deposited the balance sale consideration on 22-08-2014 i.e., nearly 3½ years after filing of the suit. Thus, the evidence discloses that at no stage, the plaintiff was ready and willing to perform his part of contract.

53. It is here pertinent to read Sec.16 of Specific Relief Act, which is extracted as under:

Personal bars to relief.—Specific performance of a contract

cannot be enforced in favour of a person—

(a) ... ... ... ... ... ...

(b) ... ... ... ... ... ...

(c) who fails to aver and prove that he has performed or has always 21

been ready and willing to perform the essential terms of the

contract which are to be performed by him, other than terms the

performance of which has been prevented or waived by the

defendant.

54. It is clear from the reading of Sec.16 (c) that it is the plaintiff who approached the Court seeking for the relief to aver and prove that he has performed or has always been ready and willing to perform the terms of the contract. The plaintiff has to prove his continuous readiness and willingness from the date of agreement. But as already discussed, the plaintiff has kept quiet nearly for 12 years.

55. The learned counsel for the plaintiff has relied-upon a decision reported in 2018 (2) A.L.D. 397 between H. ANWAR KHAN

VS. G. RAVIKUMARI AND OTHERS, where in their Lordships have held that the plaintiff has to prove readiness and willingness. But the plaintiff failed to aver and prove his readiness and willingness. As such the citation is not helpful to the plaintiff.

56. It is settled law that readiness refers to financial capacity and willingness refers to conduct of the plaintiff. Admittedly, the plaintiff has not paid the balance sale consideration. So, the burden is on the plaintiff to prove that he was ready with cash in order to pay the balance sale consideration. But, no document such as bank statement was filed to prove that the plaintiff was having ready cash with him so as to pay to the defendant towards balance of sale consideration. There is no evidence that even after the arrival of the defendant after 12 years, the plaintiff offered the balance of sale consideration.

22

57. As per Form Nos.47 and 48 of Appendix A which are

Proformas of the plaint in a suit for specific performance, there should be an averment in the plaint as to readiness and willingness.

As per Clause 2 of form No.47 of Appendix A, the plaint in a suit for specific performance shall contain the following averments:

“The plaintiff has applied to the defendant specifically to

perform the agreement on his part, but the defendant has not done

so.”

58. As per Clause 3 of form No.47 of Appendix A, the plaint in a suit for specific performance shall contain the following averment:

“the plaintiff has been and still is ready and willing

specifically to perform the agreement on his part of which the

defendant has had notice.”

59. But as seen from the averments of the plaint, there is no such averment. There is nothing in the evidence to suggest that the plaintiff offered balance sale consideration and defendant refused to perform his part of contract, by receiving balance sale consideration.

60. As per Clause 2 of Form 48 of Appendix- A the plaint in a suit for specific performance shall contain the following averment; “On---day of----20- the plaintiff tendered Rs ---- to the defendant and

demanded a transfer of the said property by a sufficient

instrument.”

61. It is clear from Clause 2 of form 48 of Appendix- A that the 23 plaintiff has to mention the date on which he has tendered the balance of sale consideration and demanded for transfer of property.

But as seen from the averments of the plaint, it is silent as to the date when he has offered the balance sale consideration. As seen from the averments, there is no pleading and proof that the plaintiff has ever tendered the balance sale consideration to the defendant subsequent to the agreement of sale even after 12 years. Thus, it can be said that there is inaction on the part of the plaintiff.

62. As seen from the averments of the plaint, the plaint is not in accordance with Form-47 and 48 of Appendix-A which are proformas in a suit for specific performance. Thus, the averments of the plaint are not in strict conformity with forms No.47 and 48 of Appendix A.

63. There is no pleading and proof that the plaintiff was ready and willing to perform his part of contract from the date of contract.

There is inaction on the part of the plaintiff.

64. The learned counsel for the plaintiff has argued that no time is stipulated in the agreement, so, there are no latches on the part of the plaintiff and it cannot be said that the agreement is barred by limitation. In support of his argument, he has relied-upon the decision reported in 2013 (5) A.L.D. 484between TIRUMALASETTY

SANTHAMMA AND OTHERS VS. YENUGANTI VENKAIAH. In the above decision, the plaintiff has paid the entire sale consideration. As such, it was held that since no part of obligation left with the plaintiff to be performed, there are no latches on the part of the plaintiff. But, in the present case, the plaintiff has not paid the entire sale consideration.

24

The plaintiff has not made sincere efforts to approach the defendant to pay the balance sale consideration. As such, the facts of the above decision and the facts of the present case are different. So, it is not applicable to the present case.

65. In the decisions reported in 1997 (1) SCR 993 between K.S.

VIDYANADAM AND OTHERS VS. VAIRAVAN and MADRAS HIGH

COURT SECOND APPEAL NO.605/2016 between S. MALLIKA AND

OTHERS VS. R. SARAVANAN AND ANOTHER, their Lordships have held that: “Even where time is not the essence of the contract, the

plaintiff must perform his part of the contract within a reasonable

time and reasonable time should be determined by looking at all the

surrounding circumstances.”

66. In view of above citations, even where no time is stipulated the plaintiff has to perform his contract within reasonable time. In the case on hand the plaintiff has not performed his part of contract within reasonable time.

67. The learned counsel for the plaintiff has further argued that escalation of price is not the ground to reject the relief of specific performance. In support of his argument, he has relied-upon the decisions reported in 1) 2010 (3) A.L.D. 581 between A. MARIKAR VS.

SRI SATYANARAYANA FILMS and (2) 2013 (5) A.L.D. 121 (SC) between SATYA JAIN (D) AND OTHERS VS. ANIS AHMED RUSHDIE (D)

THROUGH L.RS. AND OTHERS.

68. In the present case the very dispute is with regard to execution of agreement of sale. Since, the plaintiff failed to prove the 25 execution of agreement of sale by the defendant, the decisions are not helpful to the case of the plaintiff.

69. The learned counsel for the defendant has argued that Ex.A1 is a manipulated and concocted document, so, the plaintiff is not entitled for the relief. In support of his argument, he has relied-upon a decision reported in 2013 (5) A.L.D. 584 (DB) between SRI SURYA

GRANITES, HYDERABAD VS. G. VENKATESWARLU, wherein their

Lordships have held that: “Once contents of Ex.A1 found to be interpolated, it cannot be treated as proved.” In the present case, as seen from Ex.A1, it is clear to the naked eye that the date 12-08-1999 appears to be interpolated. The month in the date of 12-08-1999 appears to be altered from 12-02-1999 to 12-08-1999. The plaintiff failed to explain how the correction had occurred in the document.

70. The learned counsel for the defendant has argued that there are no measurements and the extent in the agreement of sale, but the plaintiff directly approached the District Registrar with measurements and he is not a bona fide purchaser.

71. The learned counsel for the plaintiff has argued that when there is dispute between the boundaries and the extent, boundaries will prevail, so, mere non-mentioning of extent in the agreement is not fatal. In support of his argument, he has relied-upon a decision reported in 2011 (4) A.L.D. 537 between RUKMINI BAI @ LAXMI BAI

AND OTHERS VS. K. MOHANLAL.

72. In the present case, there is no inconsistency between the extent and the boundaries, since the extent itself is not mentioned in 26 the agreement. When the extent itself is not mentioned, the principle that boundaries will prevail over the extent when there is inconsistency between them does not arise. So, the decision has no application to the present case.

73. As admitted by PW1 the extent of the property under Ex.A1 was not mentioned. In Sri Surya Granites case, relied-upon by the learned counsel for the defendant, their Lordships have held that:

“When the plaintiff is not sure about the date of agreement, it is

difficult to discern the existence of the consensus ad idem which is

sine quo non for any agreement. It is only when the plaintiff proves

that discussion in relation to any transaction has taken place and

there exists consensus ad idem between it and the 1 st defendant,

that the Court can consider the feasibility of enforcing such

agreement.”

74. The above decision is applicable to the present case. If really the plaintiff and defendant had entered into an agreement, there would have been discussion about the extent of the property to be purchased by the plaintiff. But, Ex.A1 is silent about the extent of the property purchased. So, it can be said that there is no consensus ad idem between the plaintiff and the defendant and it renders the document invalid.

75. The learned counsel for the plaintiff has argued that the defendant cannot deny the title, though the plaintiff can deny the title. In support of his argument, he has relied-upon a decision reported in 2020 (6) A.L.T. 19 (SC) between FERRODOUS ESTATES 27 (PRIVATE) LIMITED VS. P. GOPINATHAM (DEAD) AND OTHERS. In the above decision, the execution of the document is not denied, whereas, in the present case, the very execution of the agreement is denied. As such, the decision has no application to the facts of the present case and it is not helpful to the case of the plaintiff.

76. The learned counsel for the plaintiff has argued that the vendor cannot take advantage of his own wrong and as the defendant left the village, he cannot object to granting specific performance. In support of his argument, he has relied-upon a decision reported in 2018 (2) A.L.D. 61 (SC) between RAMATHAL VS. MARUTHATHAL

AND OTHERS.

77. In the above decision, the defendant has admitted the execution of agreement. But, in the present case that is not so. As such, the facts in the above decision and facts in the present case are different and the decision has no application.

78. As discussed above the plaintiff failed to prove Execution of agreement by the defendant. The plaintiff failed to prove he was ready and willing to perform his part of contract. There is inaction on the part of the plaintiff and the plaintiff is not entitled to specific performance of contract. The points are answered accordingly.

79. POINT NO.3: Whether the judgment of the trial Court is

sustainable in law or whether it requires any interference by the

appellate Court?

80. In view of the findings on point 1 and 2, it is held that the 28 learned trial Judge has appreciated the oral and documentary evidence available on record in proper perspective, as such, there are no reasons to interfere with the Judgment and decree passed by the trial Court. The point is answered accordingly.

81. POINT NO.4: To what relief?

82. In the result, the Appeal is dismissed confirming the

Judgment and decree dated 20-04-2015 passed by the learned Senior

Civil Judge, Adoni, in O.S.No.27/2011. There is no order as to costs.

Dictated to the Stenographer Gr.1, transcribed by him, corrected

and pronounced by me from Court office, this the 30 th day of June, 2021.

SD/-N.SANTHI.

II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.

29

1

IN THE COURT OF THE II ADDITIONAL SESSIONS JUDGE: KURNOOL AT

ADONI.

PRESENT: Smt. N. Santhi, II ADDITIONAL SESSIONS JUDGE.

WEDNESDAY, THE 19TH DAY OF AUGUST, 2020.

CRIMINAL APPEAL NO.146/2017.

From what court theI ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS COURT, ADONI.

appeal is preferred. No. of the case in thatCALENDAR CASE NO.286/2010. Court. Name & description ofK. Sreenivasulu, S/o. Nagulu, Hindu, 44 years, A.P.S.R.T.C. bus driver, Adoni the appellant. Depot. (A1) The sentence and LawThe accused No.1 is found guilty for the under which it was offence under sections 337, 338 and imposed in the lower 304-A I.P.C and he is convicted under Court. section 255 (2) Cr.P.C. and sentenced to undergo simple imprisonment for one year and to pay fine of Rs.10,000/- and in default to undergo simple imprisonment for three months for the offence under section 304-A I.P.C and also found guilty for the offence under section 338 I.P.C and convicted and sentenced to undergo simple imprisonment for 6 months and to pay fine of Rs.1,000/- in default to undergo further simple imprisonment for a period of 15 days and the accused No.1 is also found guilty for the offence under section 337 I.P.C. and convicted and sentenced to undergo simple imprisonment for 3 months and to pay fine of Rs.500/- in default to undergo further simple imprisonment for a period of 7 days. All the sentences shall run concurrently. The remand period, if 2 any, shall be set off against the sentence of imprisonment under section 428

Cr.P.C. (The accused No.2 is found not guilty for the offences under section 337, 338 and 304-A I.P.C. and under section 192 of the Motor Vehicles Act and acquitted of the same under section 255 (1) Cr.P.C. but he is found guilty for the offence under section 194 of the Motor Vehicles Act, and convicted under section 255 (2) Cr.P.C.

and sentenced to pay a fine of

Rs.2,000/- in default to undergo simple imprisonment for one month.)

Whether confirmed, modified or reversed

CONFIRMED.

and if modified, the modification. Date of presentation.20-06-2017.

Date of filing.23-06-2017.

Date of notice issued to28-06-2017. appear. Date of bail bond if--- appellant has/have been let out on bail. Date of Order to21-08-2018. appear. Date of hearing:13-03-2020.

Date of Judgment.19-08-2020.

This appeal came up on 16-03-2020 for final hearing before me in the presence of Sri. G. C. Ranganna and Sri. G. Rajesh, Advocates for the appellant and of Additional Prosecutor for the State and in view of lock down due to COVID -19,judgment could not be pronounced and this Court delivered the following:- 3 : J U D G M E N T :

1. This case arises out of the Judgment of conviction and sentence passed by the learned I Additional Judicial Magistrate of I

Class, Adoni, in C.C. No.286/2010 dated 14-06-2017.

2. The parties to this appeal would be referred as arrayed before the trial Court for the sake of convenience and to avoid confusion.

3. The Inspector of Police, Adoni Rural Circle filed chargesheet in

Cr.No.109/2009 of Kowthalam P.S against the accused 1 and 2 for the offences punishable under sections 337, 338 and 304-A I.P.C and under section 192 of the Motor Vehicles Act, 1988, with the following allegations:

4. On 06-08-2009 all the family members of PW1- Ediga Giddaiah engaged an auto bearing No.AP-21Y-9081 belongs to the accused No.2 on rent and at 8-00 a.m., PW1 to PW6, PW8 and PW9, LW2-Ediga

Urukundappa, LW4-Ediga Chinna Lakshmi and the deceased 1 to 5 boarded the auto. After passing Yerigera Village, when the auto being driven by the accused No.2 reached near Urukunda Cross-roads, at about 8-30 a.m., the accused No.1 being the driver of the A.P.S.R.T.C.

bus bearing No.AP-11Z-24723 came from Urukunda Village side opposite to the auto and drove the bus in a rash and negligent manner and at high speed and dashed on right side of the auto bearing No.AP- 21Y-9081.Due to that the auto went back to a little distance and the bus went ahead and stopped at some distance. As a result, PW1 to

PW6, PW8, PW9, LW2-Urukundappa, LW4- Chinna Lakshmi and the deceased 2 to 5 and the accused No.2 sustained bleeding injuries and 4

Ediga Veeresh (D1) died on the spot. The auto was also damaged.

Immediately, the injured were shifted to Government Area Hospital,

Adoni, in 108 ambulance for treatment. On the same day E. Giddaiah (D2), Ediga Devendra (D3) Ediga Narasimhulu (D4) and Ediga Nagaraju (D5) died in the Government Area Hospital, Adoni, while undergoing treatment.

5. On the instructions of PW21-Inspector of Police, Adoni Rural

Circle, PW20 the Sub-Inspector of Police, Isvi P.S. went to Government

Area Hospital, Adoni, and recorded the statement of PW1 and sent the same to Kowthalam Police Station on the point of jurisdiction. Basing on the same, the Assistant Sub-Inspector of Police, Kowthalam P.S.

(LW31) registered a case in Cr.No.109/2009 for the offences under sections 337, 338 and 304-A I.P.C and under section 192 of the Motor

Vehicles Act.

6. On 06-08-2009, PW21 who took-up the investigation, got conducted inquest over the dead body of the deceased No.1 at the scene of offence in the presence of the panchayatdars. On the same day, on the instructions of PW21, the Sub-Inspector of Police, Isvi P.S-

PW20- conducted inquest over the dead bodies of the deceased 2 to 4 in Government Area Hospital, Adoni, in the presence of the panchayatdars and sent the dead bodies for post-mortem examination. On the same day, PW21 got conducted inquest over the dead body of the deceased Nagaraju at Government Area Hospital,

Adoni, in the presence of the panchayatdars.

5

7. PW14 the medical officer, Government Area Hospital, Adoni, examined PW1 to PW6, PW8, PW9, PW11 and the accused No.2 and issued wound certificates opining that the injuries are simple as well as grievous in nature. PW14 to PW18, the medical officers conducted autopsy over the dead bodies of the deceased Nos.4, 1, 2, 3, and 5 respectively and issued post-mortem reports opining that the deceased 1 to 5 died due to shock and haemorrhage due to antemortem injuries.

8. PW19 the Motor Vehicle Inspector, examined the A.P.S.R.T.C bus bearing No.AP-11Z-2472 and the auto bearing No.AP-21Y-9081 and issued reports stating that the accident was not due to any mechanical defects of both the vehicles.

9. On 07-08-2009 and on 11-09-2009, PW21 arrested the accused

No.1 and accused No.2 respectively and sent them for remand. Thus, the accused 1 and 2 have committed the offences punishable under sections 337, 338, and 304-A I.P.C and under section 192 of the Motor

Vehicles Act.

10. The case was taken on file under sections 337, 338 and 304-

A I.P.C and under section 192 of the Motor Vehicles Act by the learned

I Additional Judicial Magistrate of I Class, Adoni, against the accused 1 and 2. On appearance of the accused 1 and 2, they were examined under section 251 Cr.P.C. on 27-11-2012, for which the accused 1 and 2 pleaded not guilty and claimed to be tried. Again on 29-12-2016, the accused No.2 was further examined under section 251 Cr.P.C. for the offence under section 192 of the Motor Vehicles Act, explaining the 6 accusation made against him for which, he pleaded not guilty and claimed to be tried.

11. On behalf of prosecution, PW1 to PW22 were examined and

Ex.P1 to Ex.P24 were marked, before trial court.

12. After closure of the prosecution evidence, the accused 1 and 2 were examined under section 313 Cr.P.C. The accused 1 and 2 denied the incriminating material and reported no defence evidence on their behalf.

13. After hearing the arguments and analysing the evidence on record, the learned I Additional Judicial Magistrate of I Class, Adoni, found the accused No.1 guilty for the offences under section 337, 338 and 304-A I.P.C and convicted him under section 255 (2) Cr.P.C and sentenced the accused No.1 to undergo simple imprisonment for one year and to pay fine of Rs.10,000/- in default to undergo simple imprisonment for three months for the offence under section 304-A

I.P.C and further sentenced to undergo simple imprisonment for 6 months and to pay fine of Rs.1,000/- in default to undergo for simple imprisonment for a period of 15 days for the offence under section 338 I.P.C and further sentenced to undergo simple imprisonment for three months and to pay fine of Rs.500/- in default to undergo for simple imprisonment for a period of one week for the offence under section 337 I.P.C. All the sentences are ordered to be run concurrently. The remand period, if any, is ordered to be set off against the sentence of imprisonment under section 428 Cr.P.C. The accused No.2 is found not guilty for the offences under section 337, 7 338 and 304-A I.P.C. and under section 192 of the Motor Vehicles Act and acquitted for the same under section 255 (1) Cr.P.C. But he is found guilty for the offence under section 194 of the Motor Vehicles

Act, and convicted under section 255 (2) Cr.P.C. and sentenced to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for one month.

14. Having aggrieved by the conviction and sentence, the accused No.1 alone preferred this appeal assailing the findings of the trial Court on various grounds.

15. No witnesses were examined and no documents were marked on either side before the appellate court.

16. Heard arguments.

17. Now the points for determination are:

1) Whether the prosecution has proved the guilt of the

appellant/accused No.1 for the offences under sections 337

338 and 304-A I.P.C beyond all reasonable doubt?

2) Whether the Judgment of conviction passed against the

appellant/accused No.1 is sustainable in law or it requires

any interference by the appellate Court?

3) To what relief?

18. POINT NO.1: Whether the prosecution has proved the guilt

of the appellant/accused No.1 for the offences under sections 337

338 and 304-A I.P.C beyond all reasonable doubt?

8

19. The learned counsel for the accused No.1 has argued that all the witnesses have clearly stated that they have not seen the number of the bus and driver of the bus and inspite of that, the trial Court erroneously convicted the accused No.1 and the conviction and sentence has to be set aside.

20. The learned counsel for the accused No.1 further argued that merely because a ghastly accident had taken place, the accused cannot be held guilty without proof that the accident had taken place due to the rash and negligent driving of the driver of the crime vehicle. In support of his argument, on this aspect, he has relied- upon the following decisions:

1) 1979 Crl.L.J. 1258 between KRISHNA BAHADUR CHETRI VS.

STATE OF ASSAM.

2) 1986 Crl.L.J. 511 between P. RAJAPPAN VS. STATE OF KERALA.

3) 2005 (2) A.L.D. (Crl.) 806 (A.P.) between SURUVU PARSHIAH

STATE OF A.P.

4) 2005 (2) A.L.D. (Crl.) 670 (A.P.) between MARKAPUDI KRISHNA

RAO VS. STATE OF A.P.

5) 2009 (1) A.L.D. (Crl.). 952 (A.P.) between KANCHERLA

NAGARAJU VS. STATE OF ANDHRA PRADESH.

21. The learned counsel for the accused No.1 further argued that the evidence of the prosecution witnesses is inconsistent, but the trial

Court erred in convicting the accused No.1, so, the conviction and sentence has to be set aside and the accused No.1 has to be acquitted.

9

22. On the other hand, the learned Additional Public Prosecutor has argued supporting the judgment of conviction of the trial Court.

23. The accused No.1 was charged for the offences under sections 337, 338 and 304-A I.P.C.

24. In order to hold the accused No.1 guilty of the offences, under sections 337, 338 and 304-A I.P.C the prosecution has to prove the following ingredients:

1) That the injured received injuries and the deceased died in the accident;

2) That the accident occurred due to the rash and negligent driving of the driver of the crime vehicle i.e., A.P.S.R.T.C bus bearing

No.AP-11Z-2472;

3) That the accused is the driver of the crime vehicle.

25. In order to prove the guilt of the accused No.1, the prosecution has examined PW1 to PW22. The evidence of PW14 the

Doctor who examined the injured PW1 to PW6, PW8, PW9, PW11 , LW2-

Ediga Urukundappa and Ediga Chinna Lakshmi, discloses that the injured received injuries in the accident. The evidence of PW14 to

PW18 who conducted post-mortem examination over the dead bodies of the deceased 1 to 5 and PW12 and PW13 the inquest panchayatdars discloses that the deceased died in the accident. However, there is no dispute regarding the death of the deceased and receipt of injuries by the injured in the accident.

10

26. Now, it has to be seen whether the prosecution is able to prove that the accident occurred due to the rash and negligent driving of the driver of the A.P.S.R.T.C bus bearing No.AP-11Z-2472.

27. In order to prove the rash and negligent driving of the bus driver, the prosecution is relying-upon the evidence of the injured and passengers of the auto.

28. The evidence of PW1 one of the injured and passengers of the auto is as follows:

About six years ago on one day at 8-00 a.m. he along with other injured and deceased, started from their village to go to Urukunda

Eranna Swamy Temple at Urukunda Village in the auto belongs to the accused No.2. On the way to Urukunda Village near Urukunda cross- roads, A.P.S.R.T.C bus came opposite to their auto by driving in a rash and negligent manner and hit against their auto. As a result, he along with other passengers sustained injuries and the deceased Ediga

Veeresh (D1) and Ediga Nagaraju (D5) died on the spot.

29. PW2 to PW9 and PW11 the other injured-cum-passengers of the auto also deposed that on that day when they were proceeding to

Urukunda Eranna Swamy Temple at Urukunda Village and when they reached near Urukunda cross-roads, A.P.S.R.T.C. bus came opposite to their auto, at high speed and in a rash and negligent manner and hit their auto and due to that, the accident had taken place.

30. Thus, all the witnesses i.e., PW1 to PW11 in one voice categorically deposed that the accident took place due to the rash and negligent driving of the driver of A.P.S.R.T.C. But, that is not an end 11 of it. As seen from the evidence of PW2, in cross-examination she deposed that she was sitting in the middle seat of the auto and none appeared to her while sitting in the middle seat. PW3 also deposed in cross-examination that she sat on the back side of the auto and she could not see what happened in front of the auto, as she was sitting on the back side of the auto. PW4 deposed that she sat on a wooden plank rafter fixed in the middle of the auto and she could not see the front of the auto as she was facing towards back side of the auto. PW5 also deposed that she sat on the back seat of the auto and what has happened in front of the auto, was not visible to her. PW6 another injured also deposed that she sat on the back seat of the auto and there is no possibility to view what was happening in front of the auto. PW8 deposed that she was sitting on the wooden plank in the auto, so, there is no possibility to her to see what was happening in front of the auto. PW9 also deposed that he sat on the iron rod and he could not observe how the bus came as he was facing towards back side of the auto.

31. Thus, PW2 to PW6, PW8 and PW9 categorically deposed in chief-examination that the accident took place as the bus came in opposite direction to their auto at high speed and in a rash and negligent manner and hit the auto. However the cross-examination of the said witnesses go to show that they have hardly any opportunity to witness the accident, since, there was no possibility for them to see what was happening in front of the auto as they were not facing towards front side of the auto. So, the evidence of PW2 to PW6, PW8 and PW9 who narrated the manner of accident cannot be considered.

12

32. As seen from the evidence of PW1 the defacto complainant- cum-one of the injured, his evidence goes to show that he sat adjacent to the auto driver. Since he was sitting, in the front seat adjacent to the driver of the auto, he had ample opportunity to witness the accident. Even the evidence of PW7 and PW11 go to show that they both sat on the back seat of the auto, which faces towards front side of the auto. So they had ample opportunity to see what was happening in front of the auto. So, the evidence of PW1, PW7 and

PW11 who had ample opportunity to witness what was happening in front of the auto can be taken into consideration. They all categorically deposed that when they reached Yerigeri cross-roads, one A.P.S.R.T.C bus came in opposite direction to their auto driven by its driver in a rash and negligent manner and hit against their auto.

The evidence of PW1, PW7 and PW11 is cogent and consistent. There is nothing in their cross-examination to discredit their testimony.

Their evidence is consistent throughout and stood to the test of cross- examination.

33. The learned counsel for the accused No.1 has argued that the auto driver allowed 19 passengers to board the auto as against 4 passengers and so the bus driver is not responsible for the accident.

34. Though the evidence discloses that many passengers were travelling in the auto, there is nothing in the evidence to suggest that due to over load of auto with passengers the accident had taken place.

35. The learned counsel for the accused No.1 has argued that the accident took place as the auto driver went upon the A.P.S.R.T.C bus 13 and dashed against the R.T.C bus on its right side and due to that, the auto was badly damaged and it is clear that the accident had taken place due to the negligence of the auto driver. The learned counsel

for the accused No.1 has further argued that the bus conductor also

deposed that the accident took place as the auto driver came upon the bus and hit the bus, so, the accident took place due to the negligence of the auto driver. In support of his arguments, the learned counsel

for the accused No.1 relied-upon the following decisions:

1) 2009 (1) A.L.D. (CRL.) 952(AP) between KANCHERLA

NAGARAJU VS. STATE OF ANDHRA PRADESH.

2) 2010 (1) A.L.D. (CRL) 18 (A.P.) between NALLAPALLI

SEETHARAMAIAH VS. STATE OF ANDHRA PRADESH.

36. The learned counsel for the accused No.1 though referred the decisions reported in 1) 1983 Crl.L.J. 535; 2) 2006 Crl.L.J. 4246 (MP); and 3) 2006 Crl.L.J. 3700, they were not furnished.

37. The learned counsel for the accused No.1 also relied-upon the following unreported decisions between 1) STATE VS. DAYANAND;

2) NARESH VS. THE STATE AND 3) STATE VS. BALBIR SINGH, rendered by the District Courts. As such the same are not binding.

38. In MARKAPUDI Krishna Rao’s case, Kancherla Nagaraju’s case and K. Rajaiah’s case referred supra, relied-upon by the learned counsel for the accused No.1; as somebody came suddenly on to the road, the accident said to have been taken place. But, it is not the case of the accused that as the auto suddenly came across the road, the accident had taken place. In MARKAPUDI Krishna Rao’s case both the vehicles were proceeding in the same direction. But that is not so 14 in the present case. So, the above decisions have no application to the present case.

39. In Suruvu Parshaiah’s case referred supra, relied-upon by the learned counsel for the accused No.1, the accident had taken place due to head-on collision. But, that is not so in the present case. As such, the above decision has no application to the present case.

40. The learned counsel for the accused No.1 placed much reliance on the evidence of PW10, the conductor and argued that as per the evidence of PW10, the accident took place due to the negligence of the auto driver, so the accused is entitled for acquittal.

41. It is here pertinent to go through the evidence of PW10, the conductor of the bus. According to him, about six years ago while they were returning from Urukunda to Adoni, at 8-30 a.m., when they reached Yerigeri Village one auto came from right side of their bus and hit against their bus and he got down from the bus along with the passengers and found one boy died in the accident and the remaining passengers in the auto sustained injuries. If the evidence of PW10, the conductor of the bus is taken into consideration, there should have been damage on the right side of the bus.

42. It is here pertinent to go through the evidence of PW19,

Motor Vehicles Inspector, who inspected both the vehicles involved in the accident. The evidence of PW19 Motor Vehicles Inspector is as follows:

15

On 08-08-2009 on a requisition from the Station House Officer,

Kowthalam Police Station to inspect the crime vehicles bearing No.AP- 11Z-2472 and AP-21Y-9081, he inspected both the vehicles and found the following damages to R.T.C. bus bearing No.AP-11Z-2472:

1) Front right side bumper, body, head light and indicators are damaged.

He found the following damages to the auto bearing No.AP-21Y- 9081:

1) Wind Screen glass broken;

2) Front side body was completely damaged;

3) Front mudguard damaged;

4) Right side head light was damaged;

5) Driver back side body was completely damaged;

6) Rear left side indicator was damaged.

43. As seen from the evidence of PW19, Motor Vehicles Inspector and the report- Ex.P22 issued by him, it is clear that there is no damage on the right side of the bus. The Motor Vehicles Inspector has found damage on the front side of the bus and not on right portion of the bus. So, the evidence of PW19 who has not found damage on the right side of the bus, belies the evidence of PW10 that the auto came towards right side of the bus and hit their bus. Moreover, though in chief-examination, PW10 deposed that the auto came towards right side of the bus and hit the bus, in the cross-examination by the counsel for the accused No.2, he has categorically admitted that as he was issuing tickets to the passengers at the time of the accident, he did not witness the accident. In view of this admission, the evidence 16 of PW10 that the accident occurred as the auto came towards right side of the bus and hit the bus cannot be believed.

44. The learned counsel for the accused has argued that he has suggested to the Doctors that the deceased died due to suffocation and the doctor also admitted the same, so, the prosecution has to prove the rash and negligent act of the driver of the bus.

45. It is true that it was suggested to Pw16, PW17 and PW18, the

Doctors who conducted autopsy over the dead body of the deceased 2, 3 and 5 respectively that the death would have been occurred due to suffocation. But they did not say that the death of the deceased 2, 3 and 5 occurred due to suffocation. They have admitted about the possibility that the death may occur due to suffocation, but not in the present case. On the other hand, PW14 and PW15 categorically denied the suggestions that the deceased 4 and 1 died due to suffocation. So, the argument of the learned counsel for the accused No.1 that the

Doctors admitted that the deceased died due to suffocation is not tenable.

46. The learned counsel for the accused No.1 placed much reliance on Suruvu Parshaiah’s case referred supra and strenuously argued that the auto came opposite to the bus and hit the bus on right side and as such the inmates of the auto received injuries and no passengers in the bus sustained injuries.

47. In the above decision relied-upon by the learned counsel for the accused the accident occurred due to head on collision and though the jeep was badly damaged the damages were found on the 17 right side of both the vehicles. But, here in the present case, as already discussed, there was no damage to the right side of both the vehicles. As such, the decision relied-upon by the learned counsel

for the accused No.1 has no application to the present case. In the

same decision relied-upon by the learned counsel for the accused, their Lordships have held that: “In accident cases it is too much to

expect oral evidence to prove the rash and negligent driving as

accidents take place within fraction of seconds and it may not be

possible for any witness to speak the exact manner in which the

accident took place. Therefore, it is only the circumstantial

evidence which is very very important to come to a conclusion as

to how the accident took place and whether there was any rah and

negligent driving on the part of the driver of the vehicle.”

48. In Krishna Rao’s case referred supra, relied-upon by the learned counsel for the accused No.1, their Lordships have held that:

“In accident cases top priority is to be given to the circumstantial

evidence and the oral evidence is to be tested with reference to the

circumstantial evidence.”

49. In view of the ratio laid down in the decisions relied-upon by the learned counsel for the accused No.1 referred above, in the accident cases, there is hardly any possibility for the witnesses to observe the manner of accident and to speak about the accident and it is the circumstantial evidence which gives a clear picture of accident.

50. The circumstantial evidence is very important piece of evidence to come to a conclusion as to how the accident had taken 18 place. As already discussed, the direct testimony of PW1, PW7 and

PW11 discloses that the bus came in their opposite direction in a rash and negligent manner and hit the auto.

51. The learned counsel for the accused No.1 has argued that there was a blind curve, so, there is no possibility for the bus to go at high speed, so, the case of the prosecution that the bus came at high speed and hit the auto is not correct.

52. In RAJAPPAN’s case relied upon by the learned counsel for accused their Lordships have held that “driving in high speed or not sounding horn is not per se proof of rashness or negligence”.

53. Though the witnesses have deposed that the bus came at high speed and dashed the auto, as held in the above decision, speed is not criteria for holding the driver responsible for rash and negligent driving. The speed depends upon the nature of the road and place of accident.

54. The evidence discloses that there is a curve though not blind curve at the arch located on the way to Urukunda Village. Even the rough sketch goes to show that Arch is located on the way to

Urukunda village. However the accident had not taken place at the

Arch, but on Urukunda – Adoni road. It is not in dispute that the auto was proceeding towards Urukunda village from Ballekal village and the bus was proceeding towards Adoni from Urukunda Village.

The Investigating officer, PW21 who has conducted the investigation has prepared a rough sketch and the same was marked as Ex.P24.As seen from Ex.P24, both the vehicles involved in the accident i.e., the 19 auto and the bus were found on the left side of Adoni to Urukunda road. Since the R.T.C. bus was coming from Urukunda towards Adoni, it should have been proceeded on the left side of Kowthalam to Adoni road. But, the bus was found on right side of Kowthalam to Adoni road. So, it is clear from the rough sketch that, instead of going on the left side of Kowthalam– Adoni road, the bus which was proceeding towards Adoni side came on to the right side of

Kowthalam to Adoni road. In the cross-examination of PW1 it was elicited that the driver of the bus bearing No.AP-11Z-2472 went extreme left without taking a turn. PW1 in his cross-examination deposed that the accused No.1 took full turn while the bus wheeled over their auto. The cross-examination of PW1 coupled with the evidence of PW1, PW7 and PW11 go to show that the driver of the

R.T.C bus while taking a turn at the scene of offence, lost control over the bus and went on to the right side i.e., in opposite direction of the auto and hit the auto. As such, there was damage on the front side of the bus. Since, the bus was heavy vehicle when compared to the auto, the auto was badly damaged. The investigating officer, PW21 also deposed that the auto and the bus were found on the right side of the road. There is no explanation from the accused No.1, as to why the bus which has to be proceeded on the left side of Kowthalam to Adoni

Road, was found on the right side of Kowthalam to Adoni Road. The evidence shows that the driver of the bus came on to the right side of

Kowthalam to Adoni road that is he went on to wrong side and hit the auto.

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55. According to PW10, the Conductor, the auto came on to the right side of the road and hit the bus. If that is so, the auto should have been found on the right side of Adoni – Kowthalam road. But, as per the rough sketch and the evidence of PW21, the auto was found on the right side of Adoni – Kowthalam Road. It is not the case of the accused No.1 that after coming towards right side of the road and hitting the bus, the auto turned turtle and came on to the left side of

Adoni - Kowthalam road. The presence of both the vehicles involved in the accident on the left side of Adoni – Kowthalam road, speaks volumes about the manner of accident. This is one important piece of circumstantial evidence which proves the manner of accident. Had the bus not came on to the right side of Kowthalam – Adoni road, i.e., in wrong direction and opposite direction to the auto, the accident would not have happened. But for coming on to the wrong side of the road, the accident had taken place. The damages on the front side of the bus and the existence of two vehicles on right side of Kowthalam –

Adoni road, speaks about the manner of accident. Thus, the evidence of PW1, PW7 and PW11 coupled with the evidence of PW19, Ex.P22-

M.V.I. report and Rough sketch - Ex.P24 ,clearly establishes that the accident had taken place due to the rash and negligent driving of the bus driver, who went in wrong direction of the road and in opposite direction of the auto and hit the auto. Thus, the prosecution has proved that the accident had taken place due to the rash and negligent driving of the driver of A.P.S.R.T.C. bus bearing No.AP-11Z-2472.

21

56. Now, it has to be seen whether the prosecution is able to prove that the accused No.1 is the driver of the A.P.S.R.T.C bus bearing No.AP-11Z-2472.

57. The learned counsel for the accused No.1 strenuously argued that the investigating officer failed to seize the trip-sheet to prove the identity of the accused and thereby failed to prove that the accused

No.1 is the driver of the bus involved in the accident. In support of his argument, he has relied-upon a decision reported in 2010 (1) A.L.D.

(CRL.) 18 (A.P.) between NALLAPALLI SEETHARAMAIAH Vs STATE OF

ANDHRA PRADESH. The learned counsel for the accused No.1 further argued that though the witnesses have stated that they have not seen the driver of the bus, the investigating officer failed to conduct test identification parade and thereby the prosecution failed to prove the identity of the accused No.1,so, the accused No.1 is entitled for acquittal. In support of his arguments on the aspect of test identification parade he has relied-upon the following decisions:

1) 2009 (1) A.L.D. (CRL.) 971 (AP) between PIGINARAJI RANGA

RAO VS. STATE OF ANDHRA PRADESH

2) 2010 (2) A.L.D. (CRL.) 376 (AP) between K. RAJAIAH VS. STATE

OF ANDHRA PRADESH.

58.The investigating officer- PW21 , hasdeposed that he has obtained the S.R. of the bus bearing number AP-11Z-2472 and found the driver of the bus as K. Srinivasulu (A1). But the said S.R. was not filed and marked. The witnesses, PW2 to PW9 and PW11 deposed that they have not seen the driver and they do not know who is the driver 22 of the bus. PW1 also deposed that he does not know the name of the driver. However he did not say that he has not seen the driver. But, one thing is clear that most of the injured have deposed that they have not seen the driver of the bus and they do not know who is the driver of the bus. But, that itself is not a ground to conduct test identification parade. The question of conducting test identification parade arises when there is dispute regarding the identity of the driver. As seen from the cross-examination of the witnesses, the

Accused No.1 never disputed his identity. It is not at all the case of the accused No.1 that he is not the driver of the R.T.C bus bearing

No.AP-11Z-2472 at the time of the accident. There is no suggestion to the witnesses also that the accused No.1 is not the driver of the R.T.C.

bus bearing No.AP-11Z-2472. On the other hand, he has admitted in the cross-examination of PW1 that he is the driver of the bus and he went extremely left while taking a turn. Thus, the accused No.1 never disputed his identity as the driver of the A.P.S.R.T.C. bus, which was involved in the accident. It appears that during the course of arguments for the first time, the accused No.1 came-up with a contention that the prosecution failed to prove that he is the driver of the R.T.C. bus which was involved in the accident. As seen from the evidence of PW10, the conductor of the bus bearing No.AP-11Z-2472 which was involved in the accident, he has categorically deposed that on the date of accident, he being the conductor and the accused No.1 being the driver of the R.T.C. bus bearing No.AP-11Z-2472 were proceeding towards Adoni and then the accident took place. Thus, the evidence of PW10,the conductor of the bus on whose evidence, the accused No.1 is placing much reliance, goes to show that the accused 23

No.1 is the driver of the crime vehicle at the time of the accident.

When there is no dispute regarding the identity of the driver of the

R.T.C. bus, the question of conducting test identification parade does not arise. As such the above decisions relied upon by the learned counsel for the accused No.1, have no application to the facts of this case.

59. The evidence discloses that the accused No.1 was the driver of the crime vehicle at the time of the accident. Thus the prosecution proved that the accused No.1 was the driver of the crime vehicle at the time of the accident.

60. In Krishna Bahadur Chetri’s case referred supra, relied-upon by the learned counsel for the accused No.1, their Lordships have held that: “Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused to have adopted. Negligence implies, an omission to do something which a

reasonable man, guided upon those considerations which ordinarily regulate the

conduct of human affairs, would do, or doing something which a prudent and a

reasonable man would not do. Thus culpable negligence is acting without the

consciousness that the illegal or mischievous act will follow, but in circumstances

which saw that the actor or the author has not exercised the caution incumbent

upon him and if he had he would have had the consciousness.”

61. In the present case, the accused No.1 failed to exercise proper and reasonable care and caution, which an ordinary prudent man ought to have taken in such circumstances and drove the R.T.C.

24 bus in rash and negligent manner and went on to wrong side of the road and thereby caused the accident, which resulted into injuries to some of the passengers and death of some of the passengers of auto.

62. In view of above discussion, this Court holds that the prosecution has proved that the injured received injuries and the deceased died in the accident and the accident took place due to the rash and negligent driving of the driver of the A.P.S.R.T.C bus bearing

No.AP-11Z-2472 and that the accused No.1 is the driver of said R.T.C.

bus. The point is answered accordingly.

63. POINT NO.2: Whether the Judgment of conviction passed

against the appellant/accused No.1 is sustainable in law or it

requires any interference by the appellate Court?

64. In view of finding on Point No.1, this Court holds that the learned trial Judge has appreciated the evidence properly and came to the correct conclusion. As such there are no reasons to differ with the findings of the trial Court and the same are confirmed. The point is answered accordingly.

65. POINT NO.3: To what finding?

66. In the result, the appeal is dismissed confirming the

Judgment of conviction and sentence passed by the learned I

Additional Judicial Magistrate of I Class, Adoni, in Calendar Case

No.286/2010 dated 14-06-2017.

The trial Court is directed to take steps for execution of sentence. The office is directed to send case records along with copy of Judgment of this 25

Court to trial Court as expeditiously as possible to take further steps and to intimate the same to this Court.

Dictated to the Stenographer Gr.1, transcribed by him, corrected and

pronounced by me from Home Office, this the 19th day of August, 2020.

SD/-N.SANTHI.

II ADDITIONAL SESSIONS JUDGE,

KURNOOL AT ADONI.

1

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:

KURNOOL AT ADONI.

PRESENT: Smt. N. Santhi, II ADDITIONAL DISTRICT JUDGE.

THURSDAY, THE 19TH DAY OF DECEMBER, 2019.

APPEAL SUIT NO.6 OF 2014.

1. P. Siva Linga Reddy died by L.Rs.

2. P. Chinna Hussaini.

3. P. Lakshmikantha Reddy.

4. P. Venkat Reddy died by L. Rs.

5. Smt. Eramma.

6. P. Raghava Reddy.

7. P. Srinivasa Reddy.

8. P. Narsi Reddy.

9. Smt. P. Govindamma.

10. P. Veeranna.

11. Narasi Reddy.

R5 to R8 are added as L.Rs. of R4 as per orders in

IA131/2019 dated 21-10-2019.

R9 to R11 are added as L.Rs. of R1 as per orders in

IA No.151/2019 dated 21-10-2019.... Appellants.

Versus.

1. P. Veera Reddy.

2. Transmission Corporation of A.P. Limited, A.P. Transco Hyderabad, represented by its Chairman, Hyderabad.

3. The Superintending Engineer, A.P. Transco, Kurnool.

4. The Divisional Engineer, A.P. Transco, Adoni.… Respondents.

Appeal against the Judgment and Decree passed by Senior Civil

Judge’s Court, Adoni, in O.S.No.88/2008 dated 24-12-2013.

Between:

1. P. Siva Linga Reddy.

2. P. Chinna Hussaini.

3. P. Lakshmikantha Reddy.

4. P. Venkat Reddy.… Plaintiffs.

2

And

1. P. Veera Reddy.

2. Transmission Corporation of A.P. Limited, A.P. Transco Hyderabad, represented by its Chairman, Hyderabad.

3. The Superintending Engineer, A.P. Transco, Kurnool.

4. The Divisional Engineer, A.P. Transco, Adoni.… Defendants.

This appeal suit came up on 10-12-2019 for final hearing before me in the presence of Sri. G. V. Desai, Advocate for the Appellants and of Sri. T. Mallesh, Advocate for the respondents and after hearing both sides, having stood over for consideration till this day, this Court delivered the following:

: J U D G M E N T :

1. This is an appeal preferred against the judgment and decree in

Original Suit No.88 of 2008 dated 24-12-2013 passed by learned

Senior Civil Judge, Adoni.

2. The plaintiffs filed the suit for partition of the plaint schedule property and for consequential permanent injunction restraining the defendants 2 to 4 from entering into the suit land and from erecting a substation or any other structures or dispossessing the plaintiffs from the plaint schedule property.

3. The averments of the plaint in brief are: The plaintiffs and the defendant No.1 are cousins. They are also co-owners of the plaint schedule land which is an extent of Ac.6.74 cents in Sy.No.188A and

Ac.1.00cents in Sy.No.66. The ancestors of the plaintiffs and the defendant No.1 had Reddy Inam land covering the plaint schedule property. The said lands have been jointly enjoyed by successive generations as joint properties. The lands were left fallow for some 3 time and on some other occasion the lands were being cultivated jointly by the descendants of the common ancestors. It is continued to be joint even now and the plaintiffs and the defendant No.1 are in joint possession and enjoyment of the same. The plaintiffs put together have 4/5th share and the defendant No.1 has 1/5th share in the plaint schedule properties. In fact, the defendant No.1 is the natural son of Donekal Venkata Ramappa who is a stranger of the family of the plaintiffs. The defendant No.1 was adopted into Paibavi family by adoptive father Rami Reddy and thus, he was admitted into

Paibavi family. The brother-in-law of the defendant No.1 by name

Chandra Sekhara Reddy was the Village Secretary of Madhavaram earlier. With his influence, the defendant No.1 has managed to obtain some revenue records behind the back of the plaintiffs, which are not binding on them. The plaintiffs learnt that the defendant No.1 is trying to sell about Ac 5-00 acres of suit land privately to the defendants 2 to 4 to enable them to construct a substation. The defendant No.1 alone has no right to alienate to anybody. If at all any substation is to be located in the suit site, the A.P. Transco should negotiate with all the plaintiffs apart from the defendant No.1 to purchase it. If no consensus is reached, the A.P. Transco may apply to the State Government for acquisition of land under Land Acquisition

Act. By passing the legal course, the defendants 2 to 4 are illegally trying to enter the suit land and started construction of the substation. On 07-06-2008, the plaintiffs got issued a legal notice to all the defendants not to enter into the land without plaintiffs’ consent. The defendant No.1 received the notice and sent reply denying the attempted sale. On 30-07-2008 the officials of the 4 defendants 2 to 4 started making hectic efforts to establish the substation highhandedly. Since the defendant No.1 is behind the back, the plaintiffs are no longer willing to be joint with him. Hence, the plaintiffs filed the suit for partition and for consequential permanent injunction.

4. The defendant No.1 filed the written statement denying the averments in the plaint. It is the contention of the defendant No.1 that the plaint schedule lands and other landed properties originally belongs to Paibavi Ayyamma and her two brothers Narayanappa and

Ramanna, which were in their joint possession and enjoyment. In the year 1975 all of them filed declaration before the Land Reforms

Tribunal, Adoni, regarding their ancestral properties. The Land

Reforms Tribunal, Adoni, (Additional Revenue Divisional Officer,

Adoni) in his order C.C.Nos.2768/2769 and 2770/ADN/1975 dated 03- 01-1977 passed an order declaring Ayyamma’s holdings computing at 1.7116 standard holding mentioned therein, which includes Sy.No.188 to an extent of Ac.6.74 cents and Sy.No.66 to an extent of Ac.1.66 cents. Since 1977 Paibavi Ayyamma was in possession and enjoyment of the same as an absolute owner thereon. As against the orders passed by the Land Reforms Tribunal, Adoni, neither Narayanappa nor

Ramanna have preferred any appeal and as such, the same is binding on them. As Paibavi Ayyamma has no issues, she adopted the defendant No.1 who is her youngest brother. This fact is clearly mentioned in the order regarding adoption. After the death of Paibavi

Ayyamma, the defendant No.1 Veera Reddy succeeded to her estate and ever-since he has been in possession and enjoyment of the same as an absolute owner. He has also got his name mutated as owner in 5 the revenue records. The V.R.O. also issued Pattadar Pass Book and title deed in his favour. The plaintiffs are also aware of the same, but now they came-up with this vexatious suit alleging that the plaint schedule properties are joint family properties of plaintiffs and the defendant No.1. Without prejudice to the above contention, the defendant No.1 perfected his right and title over the plaint schedule properties by adverse possession. The plaintiffs have no right or title or any share in the plaint schedule properties. Hence, the suit is liable to be dismissed.

5. The defendant No.4 filed written statement resisting the claim of the plaintiffs and the same was adopted by the defendants 2 and 3.

It is their contention that the plaintiffs have suppressed the acquisition proceedings initiated by Government and obtained exparte order. The plaintiffs have suppressed true facts and filed this suit with false allegations. The Inam register does not make any case in favour of the plaintiffs. Proper transmission establishment of substation is essential for uninterrupted power supply with minimum supply in voltage. Presently, the power supply to Madhavaram and other villages including Mantralayam temple town is fed from substation in Yemmiganur. Due to increase in load to Yemmiganur substation, the defendants 2 to 4 received complaints about the alleged fluctuations in Yemmiganur town. In fact, the survey had begun for search of the suitable site for location of substation about one year back and site near Mantralayam town was identified. It is abandoned as it is turned-out to be endowment land. Therefore, the present location i.e., the land in Sy.No.188/A and 188/B with an extent of Ac.5.00cents out of total extent of Ac.6.94 cents was proposed.

6

The requisition for the said land was submitted to the District

Collector, Kurnool, on 08-02-2008 with proposal form along with field map and other documents. As per revenue records, the defendant

No.1 is the pattadar having right, title and interest over the land in

Sy.No.188A and 188B in total extent of Ac.6.94 cents. Basing on the proposals, the Collector forwarded the same to Revenue Divisional

Officer, Adoni, who inturn forwarded to the Tahsildar, Mantralayam for submission of Draft Notification and Draft Declaration proposals.

The concerned Tahsildar, Mantralayam, along with his staff with the consent of the land owner i.e., the defendant No.1 surveyed the said land and sent draft notification and draft declaration proposals to

Revenue Divisional Officer, Adoni. The Revenue Divisional Officer,

Adoni, has also issued additional papers dated 04-09-2008 to the defendant No.4 directing him to deposit a sum of Rs.6,50,000/- for taking land acquisition proceedings. The defendant No.4 had obtained sanction and is ready to deposit the same. Thus, the acquisition proceedings were almost completed except necessary notification.

Even as per the plaint allegations, the plaintiffs are claiming share in the property and they have not raised any objection to the land acquisition process. The dispute of the ownership can be raised

before the Land Acquisition Officer and if any such dispute is raised

before the Land Acquisition Officer, the same can be referred by the

Land Acquisition Officer to Court, in such a case the suit would not be maintainable. Hence, the suit is liable to be dismissed.

6. Basing on the above pleadings of the parties, the trial Court framed the following issues for trial:

7

1) Whether the plaintiffs are entitled to partition of 4/5th share as prayed for in the plaint schedule properties?

2) Whether the plaintiffs are entitled to consequential permanent injunction?

3) Whether the defendant No.1 has perfected his right and title over the suit property by adverse possession?

4) To what relief?

7. Before the trial Court on behalf of the plaintiffs PW1 and PW2 were examined and Ex.A1 to Ex.A3 were marked. On behalf of the defendants DW1 and DW2 were examined and Ex.B1 to Ex.B11 were marked.

8. After hearing both sides and on perusal of the evidence available on record, the trial Court dismissed the suit.

9. Having aggrieved by the dismissal of the suit, the plaintiffs preferred this appeal assailing the findings of the trial Court on various grounds.

10. No evidence was adduced on either side before the appellate

Court.

11. Heard arguments of both counsels. The learned counsel for both parties filed written arguments also. The learned counsel for the defendant No.1 referred certain decisions in his written arguments, but the same were not furnished by him.

8

12. The parties to the appeal would be referred as they are arrayed before the trial Court for the sake of convenience and to avoid confusion.

13. Now, the points for consideration are:

1) Whether the plaintiffs are entitled for partition as prayed for?

2) Whether the plaintiffs are entitled for consequential permanent injunction as prayed for?

3) Whether the defendant No.1 has perfected his right and title over the suit schedule property by adverse possession?

4) Whether there are any irregularities in the Judgment under

appeal and it requires any interference by the appellate Court?

5) To what relief?

14. POINTS 1 TO 3: Since these three points are inter related, they have been taken-up together for discussion in order to avoid repetition and over-lapping.

15. The plaintiffs filed the suit for partition and separate possession and for consequential permanent injunction.

16. According to the plaintiffs, they are the co-owners of the plaint schedule properties along with the defendant No.1 and they learnt that the defendant No.1 is trying to alienate the properties to the defendants 2 to 4 to enable them to construct a substation, as such, they filed the suit for partition. On the other hand, it is the contention of the defendant No.1 that the schedule property originally belongs to his adoptive mother Smt. Paibavi Ayyamma and the Land 9

Reforms Tribunal, Adoni, also passed Order declaring Paibavi

Ayyamma’s holding in respect of plaint schedule properties and other properties and he being the adopted son of Paibavi Ayyamma, succeeded to her estate and ever-since, he is in possession and enjoyment of the entire plaint schedule properties and even otherwise, he perfected his title by adverse possession.

17. The defendant No.1 is claiming title and possession over the plaint schedule properties. When such is the case, the plea of adverse possession is not available to the defendant No.1.

18. The plaintiffs as well as the defendant No.1 are claiming title over the plaint schedule properties. The plaintiffs filed the suit for partition of the plaint schedule properties. Since, they are claiming partition; they have to prove that they have got right over the plaint schedule properties.

19. In order to prove their case, the first plaintiff was examined as PW1. According to him, they are the co-owners of the plaint schedule land and their ancestors had Reddy Inam Lands covering the plaint schedule property and the said lands have been jointly enjoyed by the successive generations and the plaintiffs and the defendant

No.1 and their ancestors continued to be joint even now and they are in joint possession and the plaintiffs have 4/5th share in the schedule properties. Ex.A1 to Ex.A3 were marked through PW1.

20. The plaintiffs examined the neighbouring land owner as PW2.

He deposed in support of the case of the plaintiffs.

10

21. On the other hand, the defendant No.1 examined himself

DW1 and deposed about his case as set-out in the written statement.

Ex.B1 to Ex.B11 were marked through him. The defendant also examined the neighbouring land owner as DW2 .He deposed in support of the case of the defendant No.1.

22. In order to prove their right and title over the plaint schedule property, the plaintiffs are placing much reliance on Ex.A1 Certified

Copy of Reddy Inam Register. It is the evidence of PW1 that they are co-owners of the plaint schedule lands and the said lands have been jointly enjoyed by the successive generations. Thus, as seen from the evidence of PW1, there is no whisper that the property originally belongs to Paibavi Rangaiah. Even on consideration of the plaint, there is no whisper that the plaint schedule property originally belongs to

Paibavi Rangaiah and from him they succeeded to the property. They did not even mention that Paibavi Rangaiah is their ancestor and through him, they succeeded to the properties. However, the plaintiffs are placing much reliance on Ex.A1 to prove that Paibavi

Rangaiah is one of the ancestors and he is the owner of the plaint schedule properties.

23. The learned counsel for Defendant No.1 argued that Ex.A1 is not a genuine document and the names of Paibavi Rangaiah and others were inserted subsequently and no reliance can be placed upon the said document.

24. As seen from Ex.A1 certified copy of Reddy Inam Register, it is clear to the naked eye that in between two writings the names of 15 persons and the extents were mentioned rather inserted. It is clear to 11 the naked eye that names and extents mentioned in between two writings which are in different ink appears to be inserted. It does not contain any initials or signature under it. Moreover, though the plaintiffs are claiming that Paibavi Rangaiah is the owner of the schedule property, which is an extent of Ac.6.74 cents in Sy.No.188A and Ac.1.00 cents in Sy.No.66, the said extents were not shown against the name of Paibavi Rangaiah in Ex.A1. The names of 15 persons were just mentioned and beneath their names the extents were mentioned. It is not that the extents were mentioned against the name of Paibavi Rangaiah as argued by the learned counsel for the plaintiffs. It is not the case of the plaintiffs that the other 15 persons are also having share in the plaint schedule properties. In the absence of any such evidence, a doubt arises about the genuineness of Ex.A1.

Moreover, Ex.A1 is said to be the certified copy of Reddy Inam

Register. It is not the case of the plaintiffs that either Paibavi

Rangaiah or their ancestors were granted Inam. The plaintiffs did not choose to file the proceedings of Inam under which either Paibavi

Rangaiah or their ancestors were granted Inam which includes the plaint schedule properties.

25. The learned counsel for the plaintiffs argued that as per the plaintiffs claim, the suit land belongs to Paibavi family consisting of 15 brothers whose names are given in the genealogical tree and Ex.A1 is Reddy Inam Register, wherein Ac.9.66 cents of land shown in the first column below the name of Paibavi Rangaiah who is one of the ancestors and the legal heirs of the said person is the third plaintiff who voluntarily conceded that it is not the exclusive property of his grandfather, but it is joint family property.

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26. The learned counsel for the plaintiffs further argued that the lower Court rejected Ex.A1 without giving any reason and it is an important document and its evidentiary value was recorded in the

Judgment of the Hon’ble Supreme Court reported in 1991 (1) SCJ 152 between SUBRAMANIA GURUKKAL DEAD VS. PATTESWARASWAMI

DEVASTHANAM PERUR, wherein it was held that ‘’ Inam Fair register is a document, which was prepared after exercising due care and it is of great evidentiary value”.

27. The learned counsel for the plaintiffs further argued that the reasons given by the trial Court that Ex.A1 does not show the name of the ancestor of the plaintiffs is patently incorrect and it failed to notice the name of Paibavi Rangaiah who is one of the ancestors of the

Plaintiffs and it is an old record and there is presumption in favour of its genuineness. In support of his arguments, he has relied-upon the decision reported in A.I.R. 1959 S.C. 960 between BHINKA VS. CHARAN

SINGH.

28. The learned counsel for the plaintiffs further argued that the trial Court failed to appreciate the crucial document Ex.A1. In support of his argument he has relied-upon a decision reported in (2017) 4

A.L.T. 776 between BENDAPUDI PARVATHAMMA VS. KETARAJU

NAGABHUSHANA RAO.

29. I see no force in the argument of the learned counsel for the

Plaintiffs. The trial Court has appreciated Ex.A1 document and came to the conclusion and gave finding regarding Ex.A1.

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30. In Subramania Gurukkal’s case relied-upon by the learned counsel for the Plaintiffs their Lordships have held that “the entries

in Inam Fair Register are great acts of the State and coupled with

the entries in the survey and settlement record furnish

unimpeachable evidence”. In the above decision, their Lordships have relied-upon Privy Council Judgment between ARUNACHELLAM

CHETTY VS. VENKATACHALAPATHI GURUSWAMIGAL and held that: “In

the absence of the original grant the Inam Register is of great

evidentiary value, does not mean that the entry or entries in any

particular column or columns be accepted at their face value

without giving due consideration to other matters recorded in the

entry itself.” Thus, in the above decision, their Lordships have held that though Inam Fair Register has got evidentiary value, it has to be considered in the light of other material. But, except Ex.A1, no other documents were filed in support of the contention of the plaintiffs that Paibavi Rangaiah is the original owner of the plaint schedule property. Moreover, as already discussed, the name of Paibavi

Rangaiah and the names of 14 others and extents appear to be inserted subsequently. When it is clear to the naked eye that the names of Paibavi Rangaiah and others and extents were inserted subsequently and other side also disputing the said document, it is the duty of the plaintiffs to examine the authority who issued Ex.A1, in order to prove the document. It is settled that mere filing and marking of document does not amount to proof of the document.

Since, Ex.A1 is disputed by other side and there are clear insertions in the document, the plaintiffs ought to have examined the authority 14 who issued Ex.A1. But, they failed to examine the authority who issued Ex.A1 and thereby failed to prove Ex.A1 document.

31. The learned counsel for the plaintiffs argued that the trial

Court held that Ex.A1 is not Inam Fair Register, but it is a copy of

Register of Holdings and even if this is true, the document has got great value. In support of his argument, he relied-upon a decision reported in 2014 (3) A.L.D.776 between V. SUSSAIN S VS. VADLA PULA

RANGAIAH. In the above decision, their Lordships have held that:

“Generally, the Court has to be satisfied (a) in

whom did the undisputed title in respect of the

property vest and (b) whether the plaintiffs have

established the link between themselves and the

undisputed title holder. In the written statement, no

specific plea was raised as to how the appellant

derived title to the property.”

32. In the present case also, there is no specific plea as to how the plaintiffs derived the title to the property and how they got right and title over the property.

33. The learned counsel for the Plaintiffs further argued that

Ex.A1 is the certified copy of document and it is an old record and it is for the defendants to show that in the original there are no corrections and there is presumption in favour of its genuineness. In support of his argument, he has relied-upon a decision reported in 1959 SC 960 between BHINKA VS. CHARAN SINGH. But in the said decision, their Lordships have held that: “when a procedure to be

followed for issuing a document was not followed, the Court is not

bound to draw the presumption in regard to its genuineness.” 15

34. In the present case also, as already discussed it is clear to the naked eye that there are insertions in Ex.A1 document. So, it is for the plaintiffs to prove the document by examining the authority who has issued it, to prove that the insertions apparent on the face of the record were made by him and the entries in Ex.A1 tallies with the entries in original Inam register. But, the plaintiffs failed to examine the officer who had issued that document. As such, in view of

Bhinka’s case relied upon by the learned counsel for the Plaintiffs referred above, the Court is not bound to draw the presumption regarding the genuineness of Ex.A1, since except Ex.A1 no other document was filed to prove that they have got right over the schedule property.

35. The learned counsel for the plaintiffs argued that in Ex.B1 copy of Order of Land Ceiling Tribunal pertaining to the mother of the defendant No.1 , the Tribunal has categorically held at page 6 para 4 a and b that the mother of defendant No.1 has only about Ac 0.70 cents and the defendant No.1 is only adoptive son of the declarant and at that time, there was no land acquisition and therefore, the tribunal held that she was entitled to only 1/10th share which is 70 cents and now that nearly Ac.5.00cents is taken over by the

Government, she would be entitled to a fraction of the remainder and the lower Court completely misread the document.

36. The defendant No.1 is claiming title over the plaint schedule properties being the adopted son of Paibavi Ayyamma who is said to be the absolute and exclusive owner of the schedule properties. There is no dispute that Paibavi Ayyamma and her brothers filed declaration 16

before the Land Reforms Tribunal and the Land Reforms Tribunal,

Adoni, i.e., Additional Revenue Divisional Officer, Adoni, passed order declaring the holdings of Paibavi Ayyamma. The defendant No.1 filed the said order of LandReforms Tribunal (Additional Revenue

Divisional Officer) as Ex.B1.

37. The learned counsel for the plaintiffs vehemently argued that the Land Reforms Tribunal held that the mother of defendant

No.1 is entitled to only Ac 0.70 cents.

38. It is here pertinent to read relevant portions mentioned at

Pages 5 and 6 of Ex.B1, which are extracted hereunder:

She has the following objections against the verification report served on her.

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

4. a) In Sy.No.66 (1.72) of Madhavaram which is called Gaulla

Patta, she owns only Ac.0.05 cents and the remaining land belongs

to Gejjela Narsi Reddy, Gaulla Eranna, Pakkeraiah and others.

b) In Sy.No.188 A (6.74) and 188 B (0.20) which is called

Gaulla Patta, she has only 1/10 roughly about 0.70.”

39. Thus Paibavi Ayyamma has only 1/10th roughly about 70 cents as mentioned in page 6 at 4b as argued by the learned counsel for the plaintiffs, is not the finding of the Additional Revenue

Divisional Officer, Adoni and it is the objection taken by Paibavi

Ayyamma on the verification report served on her.

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40.This can be seen from the findings recorded by the

Additional Revenue Divisional Officer, Adoni. He has categorically

held at page number 15 of Ex B1 which is extracted hereunder:

“In Sy.No.66 an extent of Ac.2.92 cents was

computed in the holding of Ayyamma. As, an extent

of Ac.1.72 was given to Narayanappa and Ramanna,

the remaining extent of Ac.1.20 shall remain in the

holding of the declarant.”

41. At Page No.17 of Ex.B1, the Additional Revenue Divisional

Officer, Adoni, has mentioned that the “ holding of P. Ayyamma is computed at 1.7116 standard holding.”. He has given the details of standard holdings of P. Ayyamma, which contains Ac.1.20 cents in

Sy.No.66; Ac.56.74 cents in Sy.No.188 A and Ac.0.20 cents in

Sy.No.188 B apart from other holdings computed at 1.7116. Thus,

Ex.B1 clearly goes to show that Paibavi Ayyamma was declared as owner of plaint schedule properties. Apart from Ex.B1, the defendant

No.1 filed Ex.B2 to Ex.B7 which go to show that Veera Reddy S/o.

Paibavi Ayyamma is the absolute owner of the plaint schedule properties.

42. The learned counsel for the plaintiffs argued that the brother-in-law of the defendant No.1 worked as V.R.O and he manipulated the pass book contrary to the decision given by the

Additional Revenue Divisional Officer, Adoni, so that it cannot be

relied-upon. In support of his argument, he has relied-upon a decision reported in 2010 (SCW) 4544 between R. HANUMANAI VS.

SECRETARY TO GOVERNMENTOF KARNATAKA, REVENUE DEPARTMENT,

wherein their Lordships have held that: “Many a time, its own 18

officers who are expected to protect its properties and maintain

proper records, either due to negligence or collusion, create

entries in records to help private parties.”

43. It is true that the evidence discloses that the brother-in-law of the defendant No.1 worked as V.R.O. But, there is nothing in the evidence to suggest that the said V.R.O. Manipulated the record. There is nothing in the evidence to suggest that Chandra Sekhara Reddy, brother-in-law of the defendant No.1 has faced any allegations of fraud or irregularity while discharging his duties. As such, mere allegation by the plaintiffs without any proof cannot be considered.

Moreover, the entries in Ex.B2 to Ex.B5 are in accordance with the order in Ex.B1 passed by the Additional Revenue Divisional Officer,

Adoni. As such, Ex.B3 pass book was issued against the decision given by the Additional Revenue Divisional officer, Adoni, is not legally tenable.

44. The learned counsel for the plaintiffs argued that there is no record to show that the pass book was given after issuance of notice to the plaintiffs.

45. There is no evidence that the plaintiffs have right over the plaint schedule property. As such, there is no need to issue notice to the plaintiffs before issuance of pass book to the defendant No.1. The plaintiffs are not disputing the order passed by the Additional

Revenue Divisional officer under the original of Ex.B1. Ex.B3 was issued in pursuance of the orders passed under Ex.B1. As such, no notice is required to be issued to the plaintiffs who are no way concerned with the plaint schedule property .

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46. The learned counsel for the plaintiffs further argued that merely because the defendant No.1 alone is cultivating the land, that does not mean that the other co-owners are ousted. In support of his argument on that aspect , he has relied-upon the following decisions, (1) 1989 (2) APLJ 312 between ARAVEETI SUBBARATNAM VS. BYSANI

SIVALAKSHMAMMA; (2) 2005 (3) A.L.D. 531 between GADDAM CHINA

DODAMMA VS. GOKA PEDDA DODAMMA and (3) 2007 (6) A.L.D. 276 between RAMA MAHAL, SRIKALAHASTHI VS. R. RAJASEKHAR, S/O. LATE

R. DORASWAMY.

47. There is no dispute with regard to the proposition of law laid down in the above decisions. However, they are not applicable to the present case, since, the defendant No.1 never pleaded ouster and there is no evidence that the plaintiffs are co-owners with the defendant No.1.

48. The learned counsel for the plaintiffs further argued that the pass book is a void document and it is to be ignored and there is no need to seek for setting aside the pass book. In support of his argument, he has relied-upon a decision reported in A.I.R. 1953

Madras 610 between APPANNA VS. JAMI VENKATAPPADU, wherein their Lordships have held that: “Where the document is wholly void ‘ab initio’ any prayer to set aside is unnecessary and redundant.”

49. This decision has no application to the present case as pass book in this case is not proved to be a void document. The evidence discloses that Ex.B3 pass book was issued in pursuance of the orders under Ex.B1. As such, it is not a void document.

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50. The learned counsel for the plaintiffs argued that the trial

Court held that Ex.B1 is not Inam Register and it is register of holdings without giving an opportunity to both parties and new points may not be decided by the Court without hearing both parties .

In support of his argument, he has relied-upon a decision reported in

A.I.R. 2003 (SC) 3909 between UNION OF INDIA; GOPAL SINGH’

SHAMBHU DAYAL; V.K. MAJOTREA VS. UNION OF INDIA.

51. The learned trial Judge has not decided any new points and basing on the documents produced, he has observed that it is a register of holdings and not Inam Fair register. So, it cannot be said that a new point was raised. As such, the decision has no application.

52. The learned counsel for the plaintiffs argued that the order of the Tribunal being in personem and not in rem, is not binding on the plaintiffs. In support of his argument, he has relied-upon a decision reported in A.I.R. 2004 A.P. 448 between B. NARASIMHA

REDDY AND ANOTHER VS. BHASKAR RAO JOSHI AND ANOTHER.

53. In the above decision, their Lordships have held that: “In

view of Sec.41 of Evidence Act, judgments of Courts exercising

probate, matrimonial, admiralty or insolvency jurisdiction only are

judgments in rem. A Judgment in a suit of this nature cannot be

said to be a judgment in rem, as it is binding only the parties to

the suit, but not persons who are not parties to the suit.”

54. On one hand the plaintiffs are placing reliance on the said document, in respect of holdings of mother of the defendant No.1. On the other hand, they are contending that the said document is not 21 binding on them. One cannot blow hot and cold at one breath. The orders under Ex.B1 were passed by a competent authority which became final as the orders were not challenged by the plaintiff or anybody. It appears that the plaintiffs did not file any objections also before the Additional Revenue Divisional Officer, Adoni, in respect of holdings of mother of defendant No.1. As such, the orders passed by the Additional Revenue Divisional Officer, Adoni, are relevant and binding.

55. It is the contention of the plaintiffs that the ancestors of the plaintiffs and the defendant No.1 had Reddy Inam Lands covered by the plaint schedule properties and the said lands have been jointly enjoyed by the successive generations as joint properties. But, no document whatsoever was filed by the plaintiffs in proof of the same.

In Ex.A2 notice, the plaintiffs have mentioned that the plaint schedule properties originally belong to Paibavi Rangaiah.But in the plaint they have mentioned that the plaint schedule properties belong to ancestors of the plaintiffs and the defendant No.1. Thus, the plaintiffs are not certain as to who is the original owner of the plaint schedule properties. The plaintiffs claimed Ac.6.74 cents in Sy.No.188A and

Ac.0.20 cents in Sy.No.188 B through Ex.A2 notice.Whereas, in the plaint, the plaintiffs have claimed Ac.6.74 cents in Sy.No.188/A and

Ac.1.00 cents in Sy.No.66. Thus, the plaintiffs are not even certain about the details of the properties over which they have claimed right and title.

56. The learned counsel for the defendant No.1 argued that Ex.B1 goes to show the holdings of Paibavi Ayyamma, which includes the 22 plaint schedule properties and the defendant No.1 being the adoptive son of Paibavi Ayyamma, succeeded to the properties and the plaintiffs have no right over it and they are not entitled for partition as prayed for.

57.The plaintiffs failed to prove that the plaint schedule properties belong to either Paibavi Rangaiah or to their ancestors.

Except Ex.A1 document, which do not disclose that the plaint schedule properties belong to the ancestors of the plaintiffs, no other documents were filed to prove their right and title over the plaint schedule properties. On the other hand, admittedly the Additional

Revenue Divisional Officer, Adoni, passed orders declaring the holdings of Paibavi Ayyamma, which shows that Paibavi Ayyamma is the absolute owner of the plaint schedule properties. It is not in dispute that the defendant No.1 is the adopted son of the said Paibavi

Ayyamma. It is not in dispute that Paibavi Ayyamma is no-more. As such, being the adopted son of Paibavi Ayyamma, the defendant No.1 would succeed to the estate of Paibavi Ayyamma, which was declared in her favour under the original of Ex.B1. As such, the plaintiffs are not entitled for any share in the plaint schedule properties. The plaintiffs are also not entitled for partition and consequential permanent injunction as prayed for. The points 1 to 3 are answered accordingly.

58. POINT NO.4: In view of the findings on points 1 to 3, this court holds that the conclusion arrived at by the trial judge is just and proper and there are no reasons to interfere with the findings of the trial Court. Accordingly, the point is answered.

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59. POINT NO.5: In the result, the appeal is dismissed confirming the Judgment and decree passed by the learned Senior Civil Judge,

Adoni, in O.S.No.88/2008 dated 24-12-2013. Under the circumstances of the case, there is no order as to costs.

Dictated to the Stenographer Gr.1, transcribed by him, corrected and pronounced

by me in open Court, this the 19 th day of December, 2019.

SD/-N.SANTHI.

II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.