N. Solomon Raju

1

IN THE COURT OF V. ADDL. DISTRICT JUDGE (F.T.C) GUNTUR.

PRESENT: Sri.N.SOLOMON RAJU, M.Com., B.L.,

V. ADDL. DISTRICT JUDGE

SATURDAY THE 24 th DAY OF MARCH, 2012

O.S.137/06

Between :

1. Vakkalagadda Krishnakumari, w/o Prasad, aged 42 years, r/o Nayi Brahman Colony, Maruthinagar, Guntur.

2. G.Vijayalakshmi, w/o Anjaneyulu, aged 40 years, Occ: House-wife, r/o Near Vijaya Lakshmi Theate, Srinivasa Rao Thota, Guntur.

3. G.Muthyam, w/o Mohan, aged 37 years, Occ: House-wife, r/o Syed Khan street, Near Brahmananda Reddy satdium, Lalapet, Guntur.

4. G.Savithri w/o Venkateswara Rao, aged 35 years, Occ: House-wife, r/o Syed Khan street, Near Brahmananda Reddy Stadium, Lalapet, Guntur. ….Plaintiffs

And

1. Kosuru Parvathamma w/o late Venkateswara Rao, aged 75 years, w/o late Venkateswara Rao, aged 75 years, Occ: House-wife r/o Syed Khan Street, Near Brahmananda Reddy Stadium, Lalapet, Guntur.

2. Kosuri Koteswara Rao, s/o late K.Venkateswara Rao, aged 45 years, occ: Barber Shop, r/o Syed Khan street, Near Brahmananda Reddy Stadium, Lalapet, Guntur.

3. Kosuri Kotiratnam, w/o late K.Prakasha Rao, aged about 45 years, Occ: Household, Mangali Bazar, Near Venkateswara Band Company, Jaggaiahpet, Krishna District.

4. Kosuri Venkateswara Rao, s/o late K.Prakasha Rao, aged 28 years, Occ: Private Bazar, Near Venkateswara Rao Band Company, Jaggaiahpet, Krishna District.

5. Kosuri Shiva Kumar s/o Late K.Prakasha Rao, aged 27 years, Occ: Ayurvedic Doctor, r/o Mangali Bazar, Near Venkateswara Band Company, Jaggaiahpet, Krishna District

6. Shaik Jareena, w/o late Peda Kalesha Vali, aged 44 years, Occ: Household, r/o Syed Khan street, China Bazaar, Guntur.

7. Shaik Nageena w/o Bazeer Basha, Muslim, House wife, aged 23 years,

8. Shaik Kulsambi w/o Syed Sharief, aged about 22 years, Muslim, House wife, r/o R.T.C Colony, Guntur.

9. Shaik John Bi d/o Peda Kaleshavali, Muslim, aged about 17 years, (Being Minor Rep: by her Mother and natural guardian Shaik Jareena, r/o Syed Khan Sreet, China bazar, Guntur). (Ammended as per the orders dt.30.1.09 in I.A.No.507/2009, Defendants 7 to 9 were added).

....Defendants

This suit is coming on before me for final hearing on 19-9-11 in the 2 presence of Sri.P.Hanumantha Rao, Advocate for the Plaintiffs, defendants 1 & 2 having remained exparte, Sri.A.S.R.K.Reddy, Advocate for the defendants 3 to 5, Sri.Shaik Imam, Advocate for the 6th defendant, Sri.D.Naga Babu, Advocate for the defendants 7 to 9, and upon perusing the material on record, this court made the following:

J U D G M E N T

1.This original suit is filed for passing preliminary and final decrees for partition of plaint schedule property by metes and bounds into 7 equal shares and to allot one such share each to the plaintiffs and defendants 1 to 5 according to their rights in the property and for such other reliefs.

Originally the suit is filed against six defendants, subsequently as per the orders in I.A.507/09 dt.30.11.09 D7 to D9 are added.

2.Brief facts of the plaint are narrated as follows:- The defendant No.1 is the mother of the plaintiffs 1 to 4, D2 is brother of plaintiffs, D3 is wife of the elder brother of plaintiffs, D4 and D5 are sons of D3. Late Kosuri

Venkat ratnam was the original owner of plaint schedule property who purchased the same under registered sale deed dt.26.8.1950 in document No.4033/50 and Guntur Municipality has assessed the said property in the name of said K.Venkat ratnam and regularly collecting property tax on suit schedule property.

3.Kosuri Venkataratnam died intestate leaving behind her one son and one daughter namely late K.Venkateswararao and Alavalapati

Renukamma as legal heirs to her property. The said Kosuri Venkateswara

Rao had two sons by name Prakasharao and Koteswara Rao and four daughters i.e plaintiffs 1 to 4 and his wife i.e the first defendant in this suit. Late K.Prakasha Rao left behind him his wife K.Kotiratnam and two 3 sons by name K.Venkateswararao and K.Shiva Kumar i.e D3 to D5 as legal heirs to his share in plaint schedule property. Thus the plaintiffs 1 to 4 and defendants 1 to 5 are the sole legal heirs to the plaint schedule property and have succeeded the suit schedule property and have been in possession and enjoyment as absolute owners of the same. The defendants 1 to 5 without the consent or intimation of the other family members are trying to alienate the suit schedule property to 6th defendant to cause wrongful loss to the plaintiffs. The plaintiffs are asking the defendants 1 to 5 for partition of plaint schedule property, but defendants 1 to 5 are dragging on the matter on some pretext or other.

Hence the suit is filed.

4.D1 and D2 remained exparte. D4 filed written statement and the same was adopted by D3 and D5. D6 filed separate written statement and the same is adopted by D7 to D9.

5.The material averments of the written statement filed by D4 are as follows:-The relationship of plaintiffs and defendants is true and correct. Late Kosuri Venkataratnam was the original owner of suit schedule property and the plaintiffs 1 to 4 and defendants 1 to 5 are the sole legal heirs to the plaint schedule property. Defendants 3 to 5 never alienated the suit schedule property to anybody. The suit schedule property has been partitioned long back during the year 1995 among the defendants 3 to 5, Alavalapati Renukamma, Defendants 1 & 2 and in the said partition the suit schedule property fell to the share of defendants 3 to 5 and ever since they have been in peaceful possession and enjoyment 4 of the said property in their own right. The plaintiffs have no right or share in suit schedule property. Shaik Pedakalesha filed suit in O.S.340/98 on the file of Addl.Senior Civil Judge's Court, Guntur against Alavalapati

Renukamma and defendants 1 to 5 herein for specific performance of suit contract of sale dt.7.12.95 and for permanent injunction. The defendants 3 to 5 are contending that the said agreement of sale was brought into existence by coercion and threat and signatures of the defendants were obtained on the said sale agreement and the defendants lodged complaint to police. The plaintiffs did not approach the court with clean hands and as such they are not entitled to any relief as prayed for. The plaintiffs have no cause of action to file the suit and this defendant finally prays the court to dismiss the suit with costs.

6.The material averments of written statement filed by D6 are as follows:-Smt.K.Venkataratnam w/o kotaiah, syed Khan street, China

Bazaar, Guntur purchased the written statement schedule property under registered sale deed dt.25.8.1950. The plaintiffs, defendants 1 to 5 and

Alavalapati Renukamma have succeeded to the estate of the said

Venkataratnam on her death which includes the written statement schedule property. The defendants 1 to 5, Alavalapati Renukamma have represented to this defendant and her husband that in the oral partition the written statement schedule property fell to the share of defendants 1 to 5 and the said Renukamma with absolute rights and they are entitled to sell away the written statement schedule property. The husband of this defendant Shaik Pedakalesha agreed to purchase the written statement schedule property at decent price of two lakhs for which the defendants 1 5 to 5 and Renukamma agreed to sell and in pursuance thereof on 7.12.95

D1 to D5 and Renukamma have sold the written statement schedule property to Shaik Pedakaleshavali for bill maktha price of two lakhs and have received a sum of Rs.1,10,000/- towards advance sale consideration, they have executed a regular contract of sale in favour of

Shaik Pedakaleshavali. The said Shaik Pedakaleshavali was in possession and enjoyment of the plaint schedule property as a tenant therein till the date of above said contract of sale and thereafter as the bonafide purchaser. After the death of Shaik Pedakaleshavali, this defendant and her children are in peaceful possession and enjoyment of the same till today. During the life time of Shaik Pedakaleshavali, he got issued registered notice on 4.5.97 to the defendants 1 to 5 calling them to perform their part of contract of sale, but they failed to perform the same.

In anticipation of the legal action proposed by Pedakaleshavali, the 3rd defendant has filed criminal case. In fact on 29.11.98 the defendants 1 to 5 and Renukamma made a futile attempt to evict Pedakaleshavali and his family members forcibly from written statement schedule property.

Having no other go on 30.11.98 the said Shaik Pedakaleshavali filed a suit in O.S.340/98 on the file of Addl.Senior Civil Judge's Court, Guntur against defendants 1 to 5 and Renukamma for specific performance of agreement of sale and for granting permanent injunction. After the death of Pedakaleshavali, this defendant and her three children are added as plaintiffs 2 to 5 in the above said suit. Thus the 6th defendant and her children are in peaceful possession and enjoyment of the written statement schedule property as bonafide purchasers of the same for valid and proper consideration till today with knowledge of each and everybody 6 including the plaintiffs. The suit in O.S.340/98 was decreed expartily on 5.7.2000 in favour of this defendant and her children, and defendants 3 to 5 herein filed I.A.1046/2000 in O.s.340/98 for setting aside the exparte decree passed in the said suit along with delay condone petition in

I.A.1045/2000 and those petitions are pending. The plaintiffs herein joined their hands with defendants in the above said suit and having colluded and conspired together, the plaintiffs have come forward with the present suit with false and untenable allegations. The plaintiffs are not in joint possession and enjoyment of the written statement schedule property and they are not entitled either to seek for partition or for granting any temporary injunction. This defendant came to know that there are other properties through whom the plaintiffs are claiming share and so the equities may be worked out. The suit is bad for non-joinder of the children of this defendant and the other parties in the above said specific performance suit, as parties herein. The court fee paid is also insufficient. The plaintiffs have approached the court with unclean hands and prays the court to dismiss the suit with exemplary costs.

7.From the respective pleadings of the parties the following issues are settled for trial:

1. Whether the suit properties are joint family properties of the plaintiffs and defendants 1 to 5?

2. Whether the contract of sale entered into with D6 by D1 to D5 and

Renukamma is valid and binding on the plaintiffs?

3. Whether the plaintiffs are entitled for partition and separate possession of suit property as prayed for ?

7

4. To what relief?

8.On behalf of plaintiffs, the 2nd plaintiff is examined as P.W.1 and no documents are marked on their behalf. On behalf of defendants D.Ws.1 to 3 are examined, and Exs.B1 to B10 are marked. 4th defendant is examined as D.W.1. 6th defendant is examined as D.W.2 and attester to the agreement of sale dt.7.12.1995 is examined as D.W.3. Exs.B1 to B3 are filed and marked through D.W.1, Ex.B1 is certified copy of sale deed dt.26.8.1950 executed in favour of Kosuri Venkatratnam, Ex.B2 is the CC of agreement of sale dt.7.12.95 marked in O.S.340/98. Ex.B3 is certified copy of eviction orders and decree passed in RCC.3/09. Exs.B4 to B10 are marked through D.W.2. Ex.B4 is the certified copy of contract of sale dt.7.12.95, Ex.B5 is the certified copy of registered legal notice, Ex.B6 is certified copy of amended plaint in O.S.340/98 on the file of I.Addl.Senior

Civil Judge's Court, Guntur, Ex.B7 is certified copy of judgment in

O.S.340/98, Ex.B8 is certified copy of decree in O.S.340/98, Ex.B9 is

certified copy of petition in RCCNo.3/09 and Ex.B10 is the registered extract of sale deed dt.19.7.1989 executed by Alavalapati Renukamma and others.

9.Arguments heard on either side. 6th defendant filed written arguments and plaintiffs filed written reply arguments. As per the arguments advanced on behalf of plaintiffs the oral partition set up by the defendants 1 to 6 is not proved and the alleged sale of property by defendants 1 to 5 or some of them to 6th defendant's husband cannot defeat the legitimate rights of the plaintiffs. As per the admissions of

D.Ws.1 and 2 also, the plaintiffs 1 to 4 are having shares in plaint schedule property. It is further argued that the defendants 6 to 9 did not 8 obtain sale deed in pursuance of alleged contract of sale and they are not even in possession of plaint schedule property as purchasers of the property and no title is conveyed in favour of the defendants 6 to 9 by virtue of alleged contract of sale and as such they cannot make a request for working out the equities.

10.Per contra, on behalf of defendants it is argued that the plaintiffs are not having any right in plaint schedule property and that the same fell towards share of defendants 3 to 5 in a partition that took place in the year 1995. It is further argued on behalf of 6 to 9 defendants that Ex.B4 agreement of sale is proved and the defendants 6 to 9 are in possession of plaint schedule property in pursuance of agreement of sale and their tenancy rights in written statement schedule property are merged with the higher rights accrued under the original of Ex.B4 agreement of sale.

Further the suit filed by the plaintiffs is liable to be dismissed for nonjoinder of legal heirs of Alavalapati Renukamma. In support of the arguments advanced on behalf of D6 to D9 the learned counsel relies on the following decisions:

1)Nambi Narayana Rao (died) by LR Vs. Nambi Rajeswar Rao reported in 2008(3) ALD 469 A.P High Court

2) Manne Krishan Veni @ Veeraveni and others Vs. Rangisetti

Pavan Kumar and others reported in 2005(1) ALT 210 A.P High

Court.

3) P.Veerappa Vs. M.A.Mohammed Amanulla reported in (1996) 1

Supreme Court Cases 415

4) Avula Jayarami Reddy Vs. Yerrabothula Nagarathamma reported in 2012(1) ALT 356.

11.ISSUE NO.1:-“Whether the suit properties are joint family properties of the plaintiffs and defendants 1 to 5?”

Plaintiffs 1 to 4 filed this suit for partition of plaint schedule 9 property into 7 equal shares and for allotting one such share to each of the plaintiffs. As seen from the plaint schedule, it consists house property bearing No.18-14-2 in China Bazar, Syed Khan Street, Guntur city with assessment No.24053 in ward No.8 and block No.5 in an extent of 330 sq.yards. It is the contention of the defendants 3 to 5 that the entire plaint schedule property fell towards their share in the partition that took place in the year 1995 and the plaintiffs 1 to 4 have no right to seek partition of the same. As per the case of D6 to D9 the husband of D6 and father of D7 to D9 purchased the house property in an extent of 102 ½ sq.yards under contract of sale dt.7.12.95 from defendants 1 to 5 and

Alavalapati Renukamma which is more fully described in written statement schedule and which is part and parcel of of the plaint schedule property. It is also their case that they are in possession and enjoyment of the same and equities are to be worked out in their favour. But the plaintiffs 1 to 4 and defendants 3 to 5 denied the alleged contract of sale dt.7.12.95.

12.It is more appropriate to make mention of admitted facts of the matter. The fact that one Kosuri Venkat Ratnam was the original owner of the plaint schedule property who purchased it under the original of Ex.B1 sale deed bearing document No.4033/1950 dt.26.8.50 and Guntur

Municipality assessed the said property in her name and regularly collecting property tax on the suit schedule property, is not in dispute.

The relationship of the parties interse is also being admitted. Further the fact that the plaintiffs 1 to 4 and defendants 1 to 5 are the legal heirs to the plaint schedule property is not being disputed with. The facts that the husband of D6 and father of D7 to D9 filed a suit in O.S.340/98 on the file 10 of Addl.Senior Civil Judge Court, Guntur against D1 to D5 and

Renukamma for specific performance of contract of sale dt.7.12.95 and for permanent injunction and the suit was decreed expartily and the petitions filed for setting aside the exparte decree and delay condone petition by the defendants 3 to 5 herein are pending, and the proceedings filed by D3 to D5 herein before Rent Control Court in RCC.3/09 for eviction of D6 to D9 herein from written statement schedule property are decreed ordering eviction of D6 to D9 against which an appeal is pending, are also not being disputed with.

13.Where admittedly the plaintiffs 1 to 4 are also the legal heirs of

Kosuri Venkataratnam who died intestate, for the plaint schedule property, unless it is shown that the plaint schedule property fell towards the share of the defendants 3 to 5 in a partition that took place in the year 1995 as pleaded, the inevitable inference would be that the plaint schedule property is joint among all the legal heirs through Kosuri

Venkataratnam including the plaintiffs 1 to 4. The 4th defendant as D.W.1 in his evidence stated that the plaint schedule property has been partitioned long back during the year 1995 among D3 to D5, Alavalapati

Renukamma and the defendants 1 & 2 and in the said partition the suit schedule property fell to the share of themselves i.e D3 to D5 and ever since they have been in peaceful possession and enjoyment of the said property in their own right with absolute rights. But during the cross examination, D.W.1 in categoric terms admitted that the plaint schedule property is in joint possession of plaintiffs and defendants 1 to 5 and the plaint schedule property was not partitioned. D6 to D9 are contending that A.Renukamma was also allotted share in the property of Kosuri 11

Venkataratnam and the share alloted to A.Renukamma was sold away to

Abida Begum under registered sale deed dt.19.7.89 and in support of the said contention the defendants 6 to 9 are relying on Ex.B10. As seen from

Ex.B10 it is mentioned that the present plaint schedule property was joint among the executants of Ex.B10 sale deed wherein the plaintiffs 1 to 4 also joined as co-executants in the original of Ex.B10 sale deed. Thus the recitals in Ex.B10 go contrary to the case of the defendants 6 to 9.

Further, there is variation between the pleadings of the defendants 3 to 5 on one hand and that of defendants 6 to 9 on the other hand with respect to the alleged partition of property. As per the defendants 3 to 5, the property was partitioned in the year 1995 and plaint schedule property fell to their share in the said partition. But as per averments of the written statement of D6 the parties represented that the written statement schedule property fell towards the share of D1 to D5 and A.Renukamma in oral partition and thereby they had agreed to sell away the written statement schedule property to them. Moreover, as suggested during the course of the examination of the witnesses according to D6 to D9 by the year 1989 itself there was a partition and the property covered by Ex.B10 was alloted to the share of A.Renukamma. But as mentioned in the aforesaid judgment the recitals in Ex.B10 show that the plaint schedule property was joint among the all heirs of Kosuri Venkat Ratnam. D6 as

D.W.2 during the cross examination admitted that the plaintiffs are also having shares in suit schedule property and she further stated that the plaintiffs also sold the plaint schedule property under contract of sale marked in Ex.B4. D.W.2 again says that she does not know that the plaintiffs executed agreement of sale or not and she came to know tha 12 the property was partitioned among them. It is evident from the evidence of D.W.2 that she was conscious about the rights and joint possession of plaintiffs in plaint schedule property. It is relevant to advert to the recitals of Ex.B4 wherein the executants of original of Ex.B4 undertook to execute proper sale deed along with plaintiffs 1 to 4 herein which obviously shows that the plaintiffs 1 to 4 are also having shares in the said property. None of the elders to the alleged partition is examined. The defendants further failed to place any record to show that the defendants 3 to 5 were in exclusive possession and enjoyment in written statement schedule property prior to the date of alleged agreement of sale in Ex.B4. Due to the aforesaid discussion, I hold that the plaint schedule property is joint among all the heirs of Kosuri Venkat Ratnam and the plaintiffs 1 to 4 are also co-sharers for the plaint schedule property. Accordingly this issue is answered.

14.ISSUES 2 & 3:- “Whether the contract of sale entered into

with D6 by D1 to D5 and Renukamma is valid and binding on the

plaintiffs?”

“Whether the plaintiffs are entitled for partition and

separate possession of suit property as prayed for ?”

It is the evidence of D.W.2 that her husband Shaik Pedakaleshavali has agreed to purchase the written statement schedule property which is part of plaint schedule property for a sum of Rs.2,00,000/- which was the prevailing market value in the vicinity and the defendants 1 to 5 and

Renukamma agreed to sell the same. In pursuance thereof the defendants1 to 5 and Renukamma executed the contract of sale dt.12.7.95 in favour of her husband by receiving Rs.1,10,000/- towards 13 part of sale consideration and the remaining consideration is payable on or before 10.2.96 and they have to execute the registered sale deed in the name of her husband or his nominee on or before 10.2.96. On the very next day of contract of sale there was dispute between the shareholders and one Razak mediated the dispute and a criminal case in

CC.10/97 on the file of IV.AMM, Guntur was filed by the 4th defendant

against Renuka, Parvathi (D1), Bharathi, Koteswara Rao (D2), Razak and others. Ultimately the accused were acquitted in the said case on the ground that it is a false case. As the share holders did not come forward to perform their part of contract Shaik Pedakaleshavali got issued a legal notice dt.4.5.97 under Ex.B5 and then filed suit in O.S.340/98 on the file of I.Addl.Senior Civil Judge's Court for specific performance of contract of sale and for permanent injunction. The said suit was decreed expartily on 5.7.2000 and as per the direction of the said court he deposited balance of sale consideration under BR.No.273/2000-01 bearing receipt

No.304377,dt.3.8.2000. Exs.B6 to B8 lend corroboration to the evidence given by D.W.2 to the effect that the specific performance suit filed in

O.S.340/98 was decreed on 21.1.09.

15.As per the evidence of D.W.3 he is attestor to the contract of sale dt.7.12.95 executed in faovur of Shaik Pedakaleshavali and the executants received a sum of Rs.1,10,000/- towards part sale consideration. D.W.3 further stated that Shaik Pedakaleshavali and defendants 6 to 9 are the tenants of written statement schedule property since 3 years prior to the execution of contract of sale dt.7.12.95 and the said Kaleshavali continued his possession under said contract of sale. As seen from the cross examination D.W.3 was not having own house at 14

Sayyed Khan street, he does not know the particulars of the property covered under contract of sale. Ex.B4 contract of sale is not specifically referred in his evidence. Coming to his chief affidavit he stated that he does not know who gave instruction to prepare chief affidavit and he does not know what was written therein.

16.As against the evidence of D.Ws.2 and 3, D.W.1 stated that the said agreement of sale was brought into existence by coercion and threat and his mother gave report to Lalapet L&O police on 16.8.95 police filed charge sheet and the same was numbered as CC.10/95 and the suit in

O.S.340/98 is still pending. However, D3 to D5 are not disputing the fact

that the criminal case was ended in acquittal. D.W.1 further admitted that they did not file any suit seeking cancellation of Ex.B2 contract of sale on the ground that it was obtained by force or coercion.

17.According to the defendants 6 to 9 the tenancy rights in written statement schedule property stood merged with the larger rights accrued under agreement of sale and their possession is protected U/s.53-A of T.P.

Act and equities are to be worked out. In P.Veerappa's case cited for the defendants 6 to 9 it is held that the so long as the agreement subsists the lesser right of tenency stood merged with larger rights accrued under the agreement. In Manne Krishnaveni's case cited supra for D6 to D9 It is held that until alienations are held not binding or unenforceable, alienees cannot be deprived of their right to enjoy the same even if alienations are so held, rights of alienees can be kept intact by allotting the alienated properties to the share of transfer - coparcener.

18.As seen from the recitals of Exs.B2 and B4 contract of sale it was agreed upon to give possession to the purchaser at the time of execution 15 of registered sale deed in pursuance of the said contract of sale. It was further agreed upon that the defendants 3 to 5 herein had to pay the

Municipal Taxes and electricity charges over written statement schedule property. Thus the intention of the parties under Ex.B4 contract of sale was to continue their hitherto relationship of landlord and tenant till the execution of registered sale deed. As seen from Ex.B9 CC of petition in

RCC.3/09 and Ex.B3 CC of eviction orders and decree in RCC.3/09, the rent control Court ordered for eviction of the tenants on the ground that the tenants made default in payment of the rent since the date of execution of Ex.B4 contract of sale. However an appeal is pending against the said orders.

19.As per the settled law a contract of sale of immovable property does not itself create any interest in or charge on such property. It creates a right of equity only for the purpose of Sec.53 of T.P.Act. Further where the agreement of sale shows that the possession of the property purchased was agreed to be given to the tenant at the time of execution of sale deed and the relationship of landlord and tenancy continuous over the property, the benefit of Sec.53-A is also not available to the tenant.

Moreover, the sale as defined U/s.54 of T.P Act is different and distinct transaction from the transaction done under agreement of sale.

20.Admittedly in the present matter the defendants 6 to 9 did not obtain sale deed in pursuance of Ex.B4 agreement of sale. The plaintiffs 1 to 4 did not join as executants in the said contract of sale. Against the exparte decree and judgment passed in O.S.340/98 the petitions filed for setting aside exparte decree are pending. Under an agreement of sale no right or title will be conveyed to the purchaser except the equity U/s.53-A 16 of T.P in appropriate cases and to obtain specific performance of the said contract. Though the evidence adduced in respect of contract of sale dt.7.12.95 is oscillating on both sides, under the circumstances discussed above, the proof or non-proof of agreement of sale is not that much of relevant in the present matter. Even if it is deemed that Ex.B4 agreement of sale is true and valid it does not bind the plaintiffs. The rights and interest of plaintiffs in plaint schedule property cannot be taken away by the execution of Ex.B4 agreement of sale. The decisions cited for defendants 6 to 9 referred above with respect to work out equities are not applicable to the present case. Consequently it can be said that the plaintiffs are entitled for share in plaint schedule property.

21.It is one of the contentions of D6 that the suit filed for partial partition is not sustainable under law. It is true as held by the Hon'ble

High Court of A.P in Nambi Narayanarao's case cited supra the suit filed for partial partition is not sustainable. But in the present suit the defendants failed to prove that the present suit is filed for partial partition by not showing some of the properties which are also liable to be partitioned. Hence the decision referred above is not applicable to the present case.

22.D6 in her written statement raised the plea that the suit is bad for non-joinder of the children of D6 and the other parties in O.S.340/98 on the file of Addl. Senior Civil Judge's Court, Guntur. The plaintiff subsequently added the children of D6 as D7 to D9. Alavalapati

Renukamma who is the daughter of original of plaint schedule property is the firs defendant in O.S.340/98. Admittedly the said Renukamma is no more by the date of filing of the present suit.

17

23.As per the averments of the plaint as well as from the averments of the written statements filed by the defendants late K.Venakteswara Rao and Alavalapati Renukamma being the children of Kosuri Venkataratnam succeeded to the plaint schedule property. It is brought to the light during the evidence of D.W.2 that Alavalapati Renukamma had a son by name

Nageswara Rao and he also died leaving behind him his three daughters i.e Manga Kumari, Durga and Nageswari. Manga Kumari is no other than the wife of 2nd defendant and has been residing in part of plaint schedule property. The same is not denied either by the plaintiffs or by the defendants 3 to 5. It is not pleaded by the plaintiffs that Alavalapati died issueless. It is also silent in the plaint as to what happened to the share of said Renukamma. PW.1 conveniently omitted in her chief affidavit about the share of Alavalapati Renukamma. Though in cross examination P.W.1 nodded that Alavalapati Renukamma died intestate and left no class.1 heirs, the same cannot be given undue weight in view of the evidence given by D.W.2. D.W.2 in his evidence pleaded ignorance about the children of Alavalapati Renukamma. In a suit for partition all the persons who have a share in the properties to be partitioned are necessary parties. Having felt that the legal representatives of Renukamma are also necessary and proper parties to the present suit, by exercising the undisputed power vested with the court under Order.1 Rule.10 CPC, gave an opportunity for the plaintiffs for impleading the legal representatives of Renukamma. But the plaintiffs did not move their little fingers in this regard nor gave any explanation for their non-impleadment. As per the ratio laid down by the Hon'ble High Court of AP in Avula Jayaramireddy's case cited supra for the defendants, though the plaintiffs are entitled for 18 share in plaint schedule property the same is liable to be dismissed for non-joinder of necessary and proper parties i.e the grand daughters of

Alavalapati Renukamma. Accordingly issues 2 and 3 are answered.

24.ISSUE No.4:-In the result the suit in O.S.137/06 is dismissed.

There is no order as to costs under circumstances of the present matter.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in Open court on the 24 th day of March, 2012.

V.ADDL.DISTRICT JUDGE

FTC) GUNTUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For plaintiffs: For defendants: PW.1 ­Gunturi Vijayalakshmi D.W.1 – K.Venkateswara Rao D.W.2 ­ Sk.Jareena D.W.3 ­ Sk. Khaja

DOCUMENTS MARKED

For plaintiffs:­Nil

For defendants: Ex.B1 ­CC of Sale deed executed by P.V.Subba Rao dt,26.8.1950 Ex.B2 ­CC of alleged agreement of sale in O.S.340/98, dt.7.12.95 Ex.B3 ­CC of eviction order & decree in RCC.3/09, dt.26.2.10 Ex.B4 ­CC of contract of sale, dt.7.12.95 Ex.B5 ­CC of Regd. Legal notice, dt.4.5.97 Ex.B6 ­CC of amended plaint in O.S.340/98 of I.ASCJ, Guntur. Ex.B7 ­CC of Judgment dt.21.1.09, Ex.B8 ­CC of Decree dt.21.1.09 Ex.B9 ­CC of petition in RCC.3/09 Ex.B10­Regd. Extract of sale deed dt.19.7.1989 19

V. ADDL. DISTRICT JUDGE

(FTC), GUNTUR

1

BEFORE THE MOTOR VEHICLE ACCIDENTS CLAIMS TRIBUNAL –

CUM - V. ADDL. DISTRICT JUDGE (F.T.C) GUNTUR.

PRESENT: Sri.N.SOLOMON RAJU, M.Com., B.L.,

CHAIRMAN,

MOTOR VEHICLES ACCIDENTS

CLAIMS TRIBUNAL- CUM-

V. ADDL. DISTRICT JUDGE

WEDNESDAY THE 28 th DAY OF MARCH, 2012

MVOP.1335/2010

Between :

Nakka Nagi Reddy, s/o China Koti Reddy, aged about 27 years, V.Appapuram village, Nujendla Mandal, Guntur Dt.

.....Petitioner

And

1. M/s.Tricom Agro Pvt., Ltd., Rep: by its Authorised signatory, 16, Tricom Towers, 2nd floor, Srinagar Colony west, Opp: to Swarna Jayanthi Complex, HYDERABAD.

2. The Oriental Insurance Co., Ltd., Rep: by its Divisional Manager, 9/2, Arundelpet, Guntur – 522 002.

.....Respondents

This petition coming on before me for final hearing on 22.3.12 in the presence of Sri.V.Brahma Reddy, Advocate for the Petitioner, 1st respondent having remained exparte, and Sri.L.Balakoteswara Rao, Advocate for 2nd 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 claim application is filed U/s.163-A of M.V.Act claiming compensation amount of Rs.2,00,000/- with subsequent interest @ 12% p.a from the date of accident till the date of realization and for such other reliefs for the injuries said to have been caused to the petitioner in motor vehicle accident.

2.The case of the petitioner as revealed from his claim application is as follows:- on 25.2.10 the petitioner and another person came to Vinukonda on motor cycle bearing No.AP16A 6302 and after completion of their work on the same day at about 7:30 p.m they were proceeding towards Anji Reddy Petrol Bunk, in the meanwhile TATA Indica Car bearing No.AP10V 3165 coming from Chikateegalapalem side towards Vinukonda driven by its driver in rash and negligent manner, dashed the motor cycle on which the petitioner was travelling, as a result of which both the persons fell down on the road and sustained severe injuries. Immediately both the injured were shifted to Government Hospital, Vinukonda. After first aid the petitioner was shifted to Dr.Arvinda Babu Hospital, Narasaraopet where the petitioner undertook inpatient treatment and 2 surgery was conducted. Vinukonda Police registered a case in Cr.No.70/10 U/s.338 IPC against the driver of the Indica Car. The petitioner was hale and healthy and was aged about 27 years and earning Rs.70,000/- p.a on cultivation. Due to this accident the petitioner lost his earnings and earning power in addition to mental agony. The disability caused to him is permanent one. He spent huge amount towards treatment. The first respondent is the owner of the car bearing No.AP10V 3165 and 2nd respondent is its insurer and as such both the respondents are liable to pay compensation to the petitioner as claimed.

3.First respondent remained exparte. 2nd respondent filed written statement denying the material averments of claim application. R2 contends that the Indica Car bearing No.AP10V 3165 did not involve in the accident. R2 does not admit the factum and manner of accident, the age, income, occupation and residence particulars of the petitioner. R2 further contends that there is no negligence on the part of the driver of TATA Indica Car; that the driver has no valid and effective driving licence; that TATA Indica Car was not insured with this respondent company; that the petitioner received simple injuries only; that there is no either permanent or partial disability; that the accident occurred due to the self- negligence of the injured/petitioner; that the petition is bad for non- joinder of necessary parties i.e owner and insurer of motor cycle bearing No.AP16AF 6302; that the compensation claimed is highly excessive and finally prays the Tribunal to dismiss the petition with costs.

4.From the respective pleadings of the parties the following issues are settled for trial:

1. Whether the accident occurred due to rash and negligent driving of the driver of Indica Car No.AP10V 3165?

2. Whether the petitioner is entitled for compensation, if so, to what amount and against whom?

3. To what relief?

5.To prove the claim of the petitioner P.Ws.1 and 2 are examined, Exs.A1 to A8, X1 to X3 are marked. On behalf of 2nd respondent R.Ws.1 and 2 are examined and Exs.B1 to B5, X4 are marked. Arguments heard on either side. As per the orders in I.A....../11 in CFR.4196/11 dt.24.11.11 R2 is permitted to contest the claim on all grounds that are available for R1 also.

6.ISSUE NO.1:-The petitioner who is injured in the present case is examined as P.W.1. The doctor who examined the injuries of the petitioner is examined as P.W.2. P.W.1 in his chief affidavit reiterated all the material averments of claim application. As per the evidence of P.W.1 he was proceeding as pillion rider on the motor cycle along with Chittiyala Koteswara Rao who is riding the motor cycle at the time of accident. The accident occurred on 25.2.10 at about 7:30 p.m and at the time of accident, the petitioner and Koteswasra Rao were proceeding towards Petrol Bunk for the purpose of filling of the fuel tank of the motor cycle. At that time TATA Indica Car bearing No.AP10V 3165 which was coming from Cheekatigalapalem side and towards Vinukonda driven by its driver in rash and negligent manner, dashed against the motor cycle, as a result of which both of them fell down on the road and sustained injuries. Petitioner sustained injuries including fractures to left leg knee and also left thigh bone. Through P.W.1 certified copies of FIR in Cr.No.70/10 of Vinukonda P.S, wound certificate, charge sheet, discharge summary issued by Dr.Ch.Arvinda Babu, Medical certificate issued by the same 3 doctor, hospital bill and bunch of prescriptions and bunch of medical bills issued for Rs.13,507/- are filed and marked as Exs.A1 to A8 respectively. P.W.2 testified Ex.A2 wound certificate. The case sheet of the petitioner maintained at his hospital and X-rays taken in his hospital and check X- ray taken on his advise are marked as Exs.X1 to X3 through P.W.2 By examining P.W.2 and by marshalling medical record, the petitioner proved that he sustained injuries in road traffic accident. The testimony given by P.W.1 gets support from the contents of crime record. The crime is registered and charge sheet is filed against the driver of Indica Car for his rash and negligent driving. The charge sheet filed by the police after thorough investigation reveals rash and negligence on the part of the driver of the Indica Car.

7.It is the contention of the 2nd respondent that the accident occurred due to negligence of the petitioner. As held in United India Insurance Co., Ltd., Vs. K.Anjaiah and others reported in 2004(2) AWR 193 A.P High Court and also in Nasrin Babu and others Vs. Divisional Manager, New India Assurance Co., Ltd., and another reported in 2009 ACJ 1906 Karnataka High Court at Bangalore (DB) in case of pillion rider victim in motor vehicles accident the principle of contributory negligence on the part of the rider of the motor bike has to be extended to the pillion riders also. Therefore, now it is to be seen whether there is contributory negligence on the part of the rider of the motor vehicle involved in the accident. The development Officer in R2 insurance company who is examined as R.W.1 stated in his evidence that the injured received injuries due to motor cycle driver's negligence only, but not due to the negligence of the Indica Car driver. Admittedly R.W.1 is not eye witness to the accident and as such no undue weightage can be given to his evidence on the aspect of the contributory negligence or negligence. As seen from the evidence of P.W.1, he categorically admitted that the petrol Bunk is located on the right side of the road if one goes towards V.Appapuram and the crime car gave hit to them while they were proceeding towards petrol Bunk. Further P.W.1 admitted that the lights of the crime Indica Car were on, and they observed the same at the time of the accident. If the crime record is read coupled with the admissions made by P.W.1, it is clear that the petitioner and his friend were proceeding towards petrol bunk for which they had to cross the road towards the right side and the crime car while proceeding towards Vinukonda gave hit to the moor cycle in that process. If the rider of the motor cycle took precautions while crossing the road the accident could have been averted. Therefore, it can be said there was contributory negligence on the part of the rider of the motor cycle also which can be extended to the petitioner being pillion rider on the motor cycle. The ratio of negligence on the part of the driver of the car and contributory negligence on the part of the rider of the motor cycle can reasonably be fixed as 75:25. Due to the aforesaid discussion, I therefore, hold that the petitioner sustained injuries in road traffic accident on account of rash and negligent driving by the driver of the Indica Car bearing No.AP10V 3165, and that there was contributory negligence on the part of the rider of the motor cycle which can be stated as 25% as reasonable. Accordingly this issue is answered.

8.ISSUE NO.2:-As per the evidence of P.W.1 he received fracture injuries to left leg knee and also left thigh bone and he took treatment in government hospital Vinukonda and Dr.Arvind Babu Hospital, Narsaraopet. As per Ex.A2 wound certificate the petitioner received fracture left femur and the medical officer opined that the injury is 4 grievous in nature. P.W.2 in his evidence stated that the petitioner received fracture of left femur and fracture to left ankle joint and both the injuries are grievous in nature. In Ex.A4 discharge summary as well as in Ex.A5 medical certificate, two fractures caused to the petitioner are found noted. The doctor also filed X-rays and case sheet which show both fractures caused to the petitioner in motor vehicle accident. Thus it can be said that the petitioner proved that he sustained two fracture injuries in motor vehicle accident for which he is entitled for compensation towards pain and suffering. It is also the evidence of P.W.2 that he performed surgery to both the injuries by rod and screws on the same day and the petitioner is unable to sit on the ground and unable to do manual labour works and he examined the petitioner clinically, and radiologically with the help of X- rays and assessed percentage of disability is 30% due to stiffness of the left knee joint and left ankle as per Orthopedic Manual. Further from the evidence of P.W.2, it is given to understand that the petitioner did not attend for follow up treatment, and he came only on 2.1.12 on which day the percentage of disability is assessed. As per medical jurisprudence, in case of fracture injuries, Physiotherapy treatment and follow up treatment is very much essential and it reduces the percentage of disability to some extent. In the light of the facts of the present matter and the evidence adduced the percentage of disability is reasonably taken as 25% as permanent and partial. The petitioner is aged about 25 years as per him and also as per medical record. As per the schedule prepared by the Hon'ble Apex Court and mentioned in Saralavarma's case reported in 2009 ACJ 1298 for the victims of the age group of 21 to 25 years the proper multiplier is '18'. As per the petitioner he is an agriculturist and he used to earn Rs.70,000/- p.a, but there is no evidence to prove his actual earnings or the extent of the land held by him. Under those circumstances, in the light of the settled ratio and depending on the age of the petitioner, his monthly income can be taken as Rs.3,000/- and yearly income comes to Rs.36,000/- and if it is multiplied by the multiplier '18' it comes to Rs.6,48,000/- then 25% of disability comes to Rs.1,62,000/. Exs.A6 to A8 are testified by P.W.2 and Ex.A6 consolidated hospital bill is issued for Rs.39,407/-. As admitted by P.Ws.1 and 2, Exs.A7 and A8 medical bills and prescriptions are included in Ex.A6. Therefore the medical expenses as proved as Rs.39,407/- are allowed. Since the petitioner was treated for more than eight days as inpatient towards incidental expenses a sum of Rs.2,000/- can reasonably be awarded. According to P.W.2, 2nd operation is required for the removal of implants which costs around Rs.10,000/-. Therefore, towards future medical expenses and surgery charges a sum of Rs.7,000/- can reasonably be awarded. The petitioner is therefore, entitled for the following compensation:

1. Towards pain and suffering for two grievous injuries 2X10,000/--Rs. 20,000/-

2. Towards disability-Rs.1,62,000/-

3. Towards medical expenses-Rs. 39,407/-

4. Towards incidental expenses-Rs. 2,000/-

5. Towards future operation charges-Rs. 7,000/- Total-Rs.2,30,407/-

9.As held in issue No.1 there is contributory negligence on the part of the petitioner to the extent of 25% and after deduction of 25% of total entitlement, the net entitlement of the petitioner comes to Rs.1,72,805- 25 ps. In view of the prevailing rate of interest at Reserve Bank of India 5 and Nationalised Banks the petitioner is entitled for interest @ 8% p.a from the date of petition till the date of realization on the compensation awarded.

10.Admittedly the first respondent is owner of crime vehicle and as such he is vicariously liable for the acts committed by his driver during the course of employment. As per the evidence of R.W.1 coupled with the contents of Ex.B1 policy, the crime vehicle belongs to the first respondent was insured with 2nd respondent and the policy was in force on th date of the accident.

11.it is the contention of the 2nd respondent that the driver of the Indica Car was not holding valid and effective driving licence on the date of the accident. Through R.W.1 driving licence extract issued by RTA, Narasaraopet, the office copy of the registered notice and acknowledgment of first respondent are marked as Exs.B2 to B4. Copy of registration certificate of crime vehicle is marked as Ex.B5. Jr.Assistant in RTA Office, Narasaraopet gave evidence as per Ex.X4 authorization letter issued by RTO, Narasaraopet, and he testified Ex.B2 driving licence particulars of Rajkumar. It is not in dispute that P.Rajakumar s/o Kruparao was the driver of crime car at the time of the accident. The same can also be evidenced from the contents of Ex.A3 charge sheet. According to R.W.2 the said Raj Kumar was having driving licence to drive motor cycle with gear and light motor vehicle nontransport vehicles. The driving licence of the motor cycle was issued on 7.10.92 and valid till 30.6.2014 and light motor vehicle nontansport was issued on 19.2.10 and it is valid till 30.6.2014. The crime vehicle can be said as cab vehicle and it comes under the category of transport vehicles and said Raj Kumar is not authorised to drive Cab vehicles and he did not obtain transport driving licence after 7.10.92 till this day. As admitted by R.W.2 a person holding light motor vehicle driving licence can drive car for his own purpose. Though it is not come on the record whether the crime car was used for personal use or not, as per Ex.B5 registration certificate it is tourist cab light motor vehicle. As per Ex.B1 policy also the policy was issued for four wheelers carrying passengers and the capacity is not more than six. At relevant point of time driving transport vehicle by a person holding light motor vehicle nontransport driving licence can be said as violation of policy condition within the ambit of Sec.149(2) of M.V.Act. In the present case the driver of the crime car was driving the same type of vehicle i.e Light motor vehicle. As seen from Ex.B2 nontransport driving licence was renewed on 3.7.04 and it is not stated by R.W.2 in his evidence. As per the ratio laid down by the Hon'ble three Judges Bench of Apex Court in National Insurance Co,. Ltd., Vs. Swaransingh's case reported in 2004 ACJ 1 (SC), in case of no driving licence the insurance company can be exonerated from its liability to the claimants, and in other cases pay and recovery can be ordered, provided the claim is 3rd party claim. The petitioner is the present matter is the 3rd party to the crime vehicle i.e Indica Car and this is not a case of no driving licence. Further there may not be any variation in the skills of a driver driving transport and nontransport Indica Car. Therefore, the principle of pay and recovery can be made applicable to the present case. In the light of the aforesaid discussion, I hold that the first respondent is liable to pay compensation to the petitioner as awarded and the 2nd respondent can be directed to satisfy the award first subject to recover the same from the first respondent. Accordingly this issue is answered.

12.ISSUE NO.3:-In the result this claim application is partly 6 allowed awarding compensation amount of Rs.1,72,805-25/- ps (Rupees one lakh seventy two thousand eight hundred five and twenty five paise only) in favour of the petitioner and the 2nd respondent is directed to deposit the same together with interest @ 8% p.a from the date of petition till the date of realization with proportionate costs within two months from the date of this order subject to recover the same from the owner of the crime vehicle i.e first respondent. Advocate fee is fixed at Rs.2000/-. The rest of the claim of the petitioner is dismissed. In case of failure of the insured to deposit the said amount within one month from the date of deposit of awarded amount by the insurer, the insurer can obtain certificate from the Tribunal and can proceed to recover the said amount from the insured. On deposit the petitioner is permitted to withdraw a sum of Rs.75,000/- immediately and the balance shall be invested in Fixed Deposit in any Nationalised Bank. The petitioner is further permitted to withdraw a sum of Rs.50,000/- on expiry of one year from the date of this order and the balance with accrued interest on expiry of two years from the date of this order.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me in open Court, on the 28 th day of March, 2012.

V. Addl.District Judge (FTC) Guntur

APPENDIX OF EVIDENCE

FOR PETITIONERS :

P.W.1­N.Nagireddy P.W.2­Dr.Ch.Aravinda babu

FOR RESPONDENTS:

R.W.1­M.Rami Reddy R.W.2­K.V.Raviteja

DOCUMENTS MARKED

FOR PETITIONERS :

Ex.A1­CC of F.I.R Ex.A2­CC of wound certificate Ex.A3­CC of charge sheet Ex.A4­Discharge summary Ex.A5­Medical certificate Ex.A6­Hospital Bill Ex.A7­Bunch of prescriptions Ex.A8­Bunch of Bills Ex.X1­Case sheet Ex.X2­X­rays Ex.X3­Check X­rays 7

FOR RESPONDENTS:

Ex.B1-Policy copy Ex.B2-Extract copy of D.L Ex.B3-O/c of Regd Notice to R1 Ex.B4-Postal acknowledgment Ex.B5-Xerox Copy of R.C

Ex.X4-Authorisation letter

V. Addl.District Judge (FTC) Guntur

V ADDITIONAL DISTRICT JUDGE, GUNTUR

Present: Sri N.Soloman Raju, V Addl. District & Sessions Judge

AS.No.387/2010, dated 24-03-2011

Between:

Perla Subba Rao ………….Petitioner

And

Sannidhi John …….Respondent

J U D G M E N T

Notice given to both counsel.Judgment pronounced VSJ In the result this appeal suit is dismissed confirming the decree and judgment dated 15.7.10 passed in O.S.288-08 on the file of P.J.C.J court sattenapalli But there is no order as to costs in the appeal under the circumstances of the matter.

Sd/-xxxxxxxxxxxxxxxxx

V Addl. District Judge, Guntur.

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

V ADDITIONAL DISTRICT JUDGE, GUNTUR

Present: Sri N.Soloman Raju, V Addl. District & Sessions Judge

M.V.O.P.No.661/2011, dated 26-03-2012

Between Ustela Yesu and 4 Others ………….Petitioner

And

Manavat Sivanayak and another …….Respondents

J U D G M E N T

As per the joint memo filed the matter is referred to Lok Adalat for settlement send the record to DLSA, Guntur.

This matter is settled before Lok Adalat.

Sd/-xxxxxxxxxxxxxxxxx

V Addl. District Judge, Guntur.

IN THE COURT OF V ADDL. DISTRICT AND SESSIONS JUDGE-CUM-SPL.

JUDGE FOR TRIAL OF OFFENCES AGAINST WOMEN, GUNTUR

Present: Sri N. Solomon Raju, V Addl. District & Sessions Judge 28th day of March, 2012

O.S.No.186/2010

Between Yella Koteswara Rao and others ….Plaintiff

And

Rayapati Venkata Koteswara Prasad.

.....Defendant

J U D G M E N T

In the result this suit is decreed with costs.

Sd/-xxxxxxxxxxxxxxxxx

V Addl. District & Sessions Judge, Guntur.