Sri.n.srinivasa Rao

1 Fair judgment in O.S.No.152/2014

IN THE COURT OF THE IV ADDITIONAL DISTRICT JUDGE: KAKINADA

PRESENT: SRI.N. SRINIVASA RAO, IV ADDITIONAL DISTRICT JUDGE, Thursday, the 7th day of April, 2022

ORIGINAL SUIT NO.152/2014

Between:

1. Medisetti Ratna

2. Yerubandi Suryakantham

3. Mummidi Urmila

4. Thothakura Satyavathi

5. Thothakura Dharma Rao

6. Karri Ramya Kirani (Plaintiffs 5 and 6 are added as per orders in I.A.1161/2016 dt:14.12.2019)

7. Vulimiri Sri Devi

8. Kalaga Satya Priya (Plaintiffs 7 and 8 are added as per orders in I.A.54/2019 dt:09.08.2019)

...Plaintiffs

And

1. Mallipamula Rambabu

2. Mallipamula Siva Sankara Subrahmanyeswarulu

3. Mallipamula Venkata Lakshmi

4. Mallipamula Aparna

5. Mallipamula Jogi Venkata Sai Krishna

6. Mallipamula Sree Devi

7. Mallipamula Ramya

8. Mallipamula Pooja

9. Gollapalli Lakshmichakram

10. Pothula Jagan Mohini

11. Natchimuthu Udaya Bhanu ...Defendants

This suit coming on 30.03.2022 for final hearing before me in the presence of Sri B.Radha Krishna, Advocate for Plaintiffs and of Sri J.R.V.S.V.Sagar, Advocate for Defendants 1 to 3, 5 and 6, Sri P.L.Srinvasa Rao, Advocate for defendants No.9 & 10, Sri Pendyala Malleswara Rao, Sri S.Bhagavan and Sri G.V.L.Narasimha Rao, Advocates for defendant No.11, defendants 7 and 8 remained set-exparte, 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 :

Plaintiffs No.1 to 4, who are no other than children of Mallipamula Jogi Raju and Mallipamula Chittemma have been filed a civil suit seeking the partition of the plaint schedule properties i.e., RCC house and vacant house bearing registered

D.No.23-7-29 an extent of 703 square yards situated Kakinada Municipal

Corporation.

2. The relief sought by the plaintiffs, as verbatim as, mentioned thus :

Grant a preliminary decree for partition of the plaint schedule property into ten equal shares according to good and bad qualities and for allotment of one such share each to the plaintiffs 1 to 3 and one such share of the 4th plaintiff to the 5th and 6th plaintiff equally 2 Fair judgment in O.S.No.152/2014 and thereafter appoint a commissioner for partition of the plaint schedule property as per the preliminary decree by meets and bounds and pass a final decree for the separate share of the plaintiff and pass a decree with costs and future profits over the plaint schedule properties with costs and other reliefs as the Hon’be Court deems fit and proper in the circumstances of the suit.

3.The relationship between plaintiffs and defendants are not in dispute.

Mallipamula Jogi Raju and Mallipamula Chittemma had six daughters viz., Plaintiff

No.1 to 4, defendants 9 and 10 and four sons viz., defendant No.1, defendant No.2,

M.Ramanjanaya Lakshmana Babu (husband of third defendant) and Mallipamula

Veerabhadra Rao (husband of 6th defendant). Mallipamula Jogi Raju died on 14.11.1985 and Chittemma died on 08.04.1988.

4.Originally, plaintiff No.1 to 4 instituted a civil suit. During pendency of suit, 4th plaintiff died intestate on 28.11.2015 and 5th plaintiff is husband of 4th plaintiff and 6th plaintiff is only daughter of 4th plaintiff added as legal heirs of deceased 4th plaintiff as per order in I.A.1161/2016 dt:14.12.2019. Similarly, plaintiff No.2 died during pendency of suit leaving behind her two daughters viz., plaintiff No.7 and 8 and they are added as legal representatives as per order in I.A.54/2019

dt:09.08.2019. Defendants 4 and 5 are children of Late M.Ramanjanaya Lakshmana

Babu and 3rd defendant and defendant No.7 and 8 are children of Late Mallipamula

Veerabhadra Rao and 6th defendant.

5.Brief averments made in the plaint as mentioned thus :

Plaint schedule property is a house situated in Duggiralavari Street, Kakinada, which was purchased by Late Mallipamula Jogi Raju along with Undavilli Subbarao and others on 03.07.1971 under registered sale deed. Thereafter, on 22.06.1974

Undavilli Manikyam and others executed a registered relinquishment deed in favour of Late Mallipamula Jogi Raju by relinquishing their shares in the schedule property and as such Late Mallipamula Jogi Raju became absolute owner of plaint schedule property and he has been enjoying the property during his lifetime absolutely. After his death, the schedule property was inhereted equally to all the children of Late

Mallipamula Jogi Raju .

3 Fair judgment in O.S.No.152/2014 6.After the death of Mallipamula Jogi Raju, plaintiff and defendant No.1 to 10 enjoyed the property with absolute rights. Thereafter, defendants 1 and 2 along with their brothers with the help of some third parties created some forged documents to grab the plaint schedule property. By knowing that plaintiffs, defendants 9 and 10 got issued a legal notice to defendants 1 and 2 and their two brothers for partition of plaint schedule property into ten equal shares and allot one such share each to them. After receiving the notice on 28.12.2006, defendants 1 and 2, Late M.Ramananjaneya Lakshmana Babu, and Veerabhadra Rao got issued a reply with false allegations stating that Late Mallipamula Jogi Raju executed an unregistered will dt:20.02.1981. Except mentioning the above, they did not mention anything about the alleged will. Plaintiffs, defendants 9 and 10 are very well aware that no will was executed by their father during his lifetime. Defendants 1 and 2 and other two brothers M.Ramananjaneya Lakshmana Babu and Veerabhadra Rao never claimed any right over the property by virtue of will at any time before issuing the reply notice by them and plaint schedule property is in joint and constructive possession of all the children of Late Jogi Raju. Plaintiffs and defendants 9 and 10 gave a rejoinder through their advocate on 29.01.2007 requesting them to send the copy of the alleged will claimed by them, but they have not given any reply. Later, plaintiffs and defendants 9 and 10 got issued a paper publication in Eenadu daily news paper on 13.03.2007 stating that defendants 1 and 2 and their brothers are creating documents to grab the plaint schedule property and informed the public that Late Jogi Raju died intestate and all the children of Late Jogi Raju are having equal rights over the property. After that also plaintiffs and defendants 9 and 10 got issued a remainder through their counsel on 11.04.2007 demanding the defendants to serve the alleged copy of will to them to give a suitable reply. Defendants 1, 2,

M.Ramananjaneya Lakshmana Babu, and Veerabhadra Rao got issued a reply through their counsel on 04.06.2007 with false allegations and informed to the plaintiffs, defendants 9 and 10 that they need not give the alleged copy of will.

Subsequently, due to intervention of elders, the defendants stopped claiming absolute right over the property and agreed before the elders that they will not 4 Fair judgment in O.S.No.152/2014 alienate the plaint schedule property in any manner and they will co-operate for partition of the property into ten equal shares. On several occasions all the legal heirs met and made proposal for partition of the properties. In the meanwhile, plaintiffs, defendants 9 and 10 came to know through paper publication by 11th defendant in Eenadu daily news paper on 10.04.2013 stating that 11th defendant enter into an agreement of sale in respect of plaint schedule property with defendants 1, 2, 3 and 6 and paid an advance amount and asked the public for objections if any. Immediately, on 14.04.2013, 1st plaintiff gave a reply personally to advocate of 11th defendant. Plaintiffs called upon the family meeting and asked their family members to come forward for partition of the plaint schedule property, but defendants 1 to 8 are not co-operating for partition of the plaint schedule property. Defendants 1 to 8 are making preparation to alienatre the plaint schedule property and plaintiffs, defendants 9 and 10 gave a paper publication in

Eenadu news paper on 02.07.2014 informed the public not to purchase the property without their consent. Therefore, there is no alternative for plaintiffs to file suit for partition against defendants 1 to 8 and 11. As the defendants 9 and 10 are not readily available at Kakinada, they were joined as defendants. Thus, plaintiffs are entitled each 1/10th share over plaint schedule property and urged the court to divide the plaint schedule property into ten equal shares and allot one such share according to the good and bad qualities.

7.Written statement filed by defendants 1 to 3, 5 and 6 defendants.

8.Defendants 1 to 3, 5 and 6 defendants denied all the material allegations in the plaint and plaintiffs put to strict proof of each and every allegation in the plaint.

9.The sum and substance of the case of the defendants, in brief, as mentioned thus :

Late Mallipamula Jogiraju executed a will on 20.02.1981 in a sound and disposing state of mind in favour of his four sons (D1, D2, M.Ramananjaneya

Lakshmana Babu and Veerabhadra Rao) in respect of plaint schedule property (Item

No.2 in the will) and bequeathing the property for equal shares. Thus, by virtue of will dt:20.02.1981, the sons of Late Mallipamula Jogiraju are become the absolute 5 Fair judgment in O.S.No.152/2014 owners of the plaint schedule property. On the date of execution of will

dt:20.02.1981, Mallipamula Satya Veerabhadra Rao is aged about 24 years,

1st defendant is aged about 22 years, Mallipamula Ramanjaneya Lakshmana Babu is aged about 20 years and 2nd defendant is aged about 18 years. The will was attested by Vegulla Papayya of Mandapeta Village and Balarama Krishnam Raju.

OneI.P.Varada Rao is the scribe of the will. The attestor and scribe of the will are no more. The will dt:20.02.1981 was acted upon and properties being enjoyed as per the recitals of the will dt:20.02.1981. The plaintiffs and defendants 9 and 10 are not entitled to any share over the plaint schedule property. The plaintiffs are having knowledge of the will dt:20.02.1981 and they never questioned the genuineness of the will dt:20.02.1981 even after death of Mallipamula Jogi Raju.

10.The suit for partial partition is not maintainable under law. The plaintiffs intentionally gave wrong address of defendants 7 and 8. Defendants 7 and 8 are not residents of India, they are residing in USA. 4th defendant is not residing in Kakinada.

She is also away from Kakinada. The plaintiffs are very aware of the will

dt:20.02.1981 and they were supplied the copy of the will on the death ceremony of

Mallipamula Jogi Raju in 1985, that is the reason why the plaintiffs never questioned the will and never claimed any right over plaint schedule property. The copy of the will was already given to plaintiffs at the time of 12th day ceremony i.e., Pedda

Dinam. Therefore, defendants 1 and 2 did not supply the copy of the will again to the plaintiffs. 11th defendant in collusion with plaintiffs and defendants 9 and 10 in order to avoid the sale of the property. 11th defendant is having copy of will

dt:20.02.1981.

11.Mallipamula Chittemma was executed a will on 28.01.1986. When the plaintiffs disputed about the will executed by Mallipamula Chittemma, plaintiffs and defendants 9 and 10 got mediated and accepted the will dt:28.01.1986 and indeed, the property of the mother was sold basing on the will dt:28.01.1986. Plaintiffs, defendants 9 and 10 signed as attestors in the sale deed in the year 2004. Plaintiffs are fully aware of will said to have been executed by their father on 20.02.1981 and if really there is no will they should have made a claim for the property of the father 6 Fair judgment in O.S.No.152/2014 also in the year 1995 itself. The plaintiffs having full knowledge of the execution of will dt:20.02.1981. The xerox copy of the will dt:20.02.1981 is filed herewith and it may be read as part of the written statement. The original Will be produced at the time of trial it is kept in the safe custody. The plaintiffs have no manner of right, title or interest in the property and they no right to make any claim in the property.

Plaintiffs, defendants 9 and 10 are not in joint possession of the property and they have no right to claim any share in the property. In view of the above pleadings, defendants 1 to 3, 5 and 6 urged before the court to dismiss the suit with costs.

12.Defendants 9 and 10 filed a detailed written statement and the contentions and pleadings of defendants 9 and 10 supported to the case of plaintiffs.

Defendants 9 and 10 prayed the court for partition of the plaint schedule property into ten equal shares and allot one such share to this defendants.

13.Defendant No.11 made a counter claim under ORDER VIII RULE 6 of Code of

Civil Procedure by paying the necessary court fees.

14.Brief case of the 11th defendant in the counter claim/written statement as mentioned thus :

Defendants 1, 2, 3 and 6 approached to this defendant in the month of

February, 2013 and informed that the plaint schedule property originally belongs to

Late Mallipamula Jogi Raju, who executed an unregistered will bequeathing the plaint schedule property to his sons and as such they became the absolute owners of the plaint schedule property and they were expressed that they intended to sell the schedule property for sale. This defendant agreed to purchase the schedule property. The defendants offered to purchase the schedule property for consideration of Rs.32,000/- per square yard for total extent of 703 square yards of site. On 13.02.2013 defendants 1, 2, 3 and 6 executed a letter (styled as receipt) stating that they agreed to sell the plaint schedule property for sale consideration of

Rs.32,000/- per square yard for the property bearing D.No.23-7-29, located at

Duggiralavari Street an extent of 703 square yards of site and received an advance amount of Rs.10,00,000/- (Rupees Ten Lakhs only) and also agreed to register the property within two months from that date and defendants 1, 2, 3 and 6 gave an 7 Fair judgment in O.S.No.152/2014 assurance that they will obtain the permission from the court to sell the share of the minors in the meanwhile. Defendants 3 and 6 gave an assurance that they would bring their children at the time of registration of the property and on behalf of them also they entered into an agreement of sale with the defendant. 3rd defendant informed to this defendant that her son M.J.V.S.Krishna is a minor and gave an assurance that she would file a petition before competent court to obtain permission to alienate the share of the plaint schedule property. This defendant made a paper publication on 10.04.2013 for calling objections from the public if any through his counsel Sri M.Narasimha Rao. The defendant has been received objection from 1st plaintiff dt:14.04.2013 claiming that she is having 1/10th share over plaint schedule property. The defendant also received a notice on 15.04.2013 from one Mallipamula Sai Venkata Ramana S/o.Seetharamaswamy of Yanam through their advocate Sri M.V.J.Rama Gopal of Kakinada stating that Late

Mallipamula Jogi Raju is not absolute owner of the schedule property and the schedule property belongs to partnership firm Thandava Vigneswara bus service.

The defendant having received the notice approached to defendants 1, 2, 3 and 6 informed about receiving of the such notice. The defendants not give any proper reply and 6th defendant gave a personal notice on 29.04.2013 asking the defendant to get ready for the registration or else they will forfeit the defendant’s amount. The defendant got issued a legal notice on 01.05.2013 to defendants 1, 2, 3 and 6 and informed them that he is ready for registration of the property and asked them to get no objection from 1st plaintiff and one M.Venkata Ramana and order of alienation of the property from the court for the share of the minor. The defendant informed to them that he is ready with money. The defendant received a reply notice on 10.05.2013 from defendants 1, 2, 3 and 6 through their counsel G.Satyanarayana of

Hyderabad. In the notice they were admitted that they were entered into an agreement of sale that this defendant for the plaint schedule property for amount of

Rs.32,000/- per square yard and received the advance amount of Rs.10,00,000/- (Rupees Ten Lakhs only). Defendants 1, 2, 3 and 6 not had given any answer to get no objection from the objectors and obtaining permission from the court for 8 Fair judgment in O.S.No.152/2014 alienating the share of the minor. In the notice, defendants 1, 2, 3 and 6 insisted the defendant to go for registration without clearing the cloud on the property and also mentioned that they would forfeit the advance amount of Rs.10,00,000/- paid by him if he fails to get the registered property on or before 07.08.2013. The defendant got issued a rejoinder on 06.07.2013. In the rejoinder the defendant informed about filing of guardian petition by 3rd defendant for obtaining permission for alienation of the share of her minor son before III Addl.District Judge’s Court, Kakinada and the same was given S.R.No.2468/2013. This defendant informed them to clear all the disputes over plaint schedule property and without clearing the disputes they cannot insist this defendant to pay balance of consideration and get ready for the registration, otherwise, this defendant would sustain huge loss. Defendants 1, 2, 3 and 6 did not give any answer to the notice and gave a reply on 24.07.2013 with false allegations.

15.Thereafter, this defendant has been received a notice from plaintiffs stating that the defendants 1, 2, 3 and 6 have no right with the plaint schedule property exclusively and asked this defendant not to purchase the property from defendants 1, 2, 3 and 6. All the defendants colluded together and hatched a conspiracy to cause loss to this defendant and created the litigation. This defendant is having right over the plaint schedule property and he is entitled to obtain a registered sale deed from defendants 1, 2, 3 and 6 in respect of plaint schedule property. This defendant is ready with balance consideration and perform his part of the contract.

This defendant made a counter claim in the written statement seeking the relief of

Specific Performance of agreement dt:13.02.2013 from defendants 1 to 8.

16.Defendant No.11 urged before the court to pass a decree as mentioned below:

I.a) Decree of specific performance for the plaint schedule property against the defendants 1 to 8 by directing them to execute the registered sale deed for the plaint schedule property after receiving the balance of sale consideration from this defendant.

Or 9 Fair judgment in O.S.No.152/2014

b) Decree of specific performance for execution of registered sale deed for the shares allotted in the plaint schedule property to the defendants 1 to 8 by receiving the balance of sale consideration for the shares allotted to them proportionarely. Or

II.a) Pass an alternative decree for the return of the advance amount of Rs.10,00,000/- with interest @ 24% p.a from 14.02.2013 to till receiving the amount and create charge over the plaint schedule property for recovery of the advance amount.

III.With costs and such other reliefs as the Hon’ble Court deems fit and proper in the circumstances of the suit.

17.Additional written statement filed by 3rd defendant on behalf of defendants 1, 2, 3, 5 and 6 under ORDER IX RULE 9 of Code of Civil Procedure for the counter claim filed by 11th defendant. Memo filed by D1, D2, D4, D5 to adopt the additional written statement filed by 3rd defendant.

18.Briefly, the contents of the additional written statement, as mentioned thus :

19.The defendants denied allegations made in the counter claim filed by 11th defendant. The alleged agreement dt:13.02.2013 is illegal, invalid under law.

The alleged receipt dt:13.12.2013 is not true, valid and binding on the defendants

No.4, 5, 7 and 8. Defendants No.4, 5, 7 and 8 are not parties to the alleged receipt

dt:13.02.2013 and as such the document is not valid. The alleged receipt appears to

be an agreement of sale and as such alleged receipt requires stamp duty and penalty. The alleged receipt also requires registration and as such the receipt is not admissible in law. The alleged counter claim made by 11th defendant is not in accordance with law and as such the counter claim has to be rejected inlimini. The alleged receipt dt:13.02.2013 does not disclose any stipulation mentioned in the counter claim and in the notice dt:01.05.2013. The reply notice issued on behalf of the defendants may be read as part of the additional written statement. The defendants contended that the suit filed by plaintiff with full knowledge that plaintiffs have no right over the schedule property.

20.Indeed, Late Mallipamula Jogi Raju was executed a will on 20.02.1981 in a sound and disposing state of mind and as per the will the plaint schedule property 10 Fair judgment in O.S.No.152/2014 was bequeathed to 1st defendant, 2nd defendant, husband of 3rd defendant and 5th defendant. The legal heirs of 3rd defendant husband and 5th defendant husband are entitled to share in the property. The alleged receipt dt:13.02.2013 obtained by 11th defendant is not valid under law. Defendants No.4, 5, 7 and 8 never gave any consent for execution of the alleged agreement. The alleged agreement is illegal and invalid under law. 11th defendant has no right to make any counter claim against the present defendants. The alleged counter claim with an alternative prayer is not maintainable under law. 11th defendant did not obtain the sale deed within date from 10.05.2013 even though the persons who executed the receipts are ready and willing to perform their part of contract. The sale deed was not obtained by 10.05.2013 and as such the agreement cancelled and advance is forfeited by D1, D2, D3 and D6. 11th defendant is not entitled to make any counter claim against this defendants. 11th defendant himself has created alleged disputes, indeed, Mallipamula Venkata Ramana, who issued a notice dt:15.04.2013 clearly stated that 11th defendant has no right in the property and nothing to do with the property, inspite of all that also 11th defendant did not obtain the sale deed.

11th defendant is not entitled to any interest or refund of advance amount. The defendants urged before the court to dismiss the counter claim filed by 11th defendant.

21.On the strength of the above pleadings, the following issues are framed for settlement of trial by my Learned Predecessors of the Court on 13.03.2017 :

1. Whether the plaintiffs are entitled for preliminary decree for partition of the plaint schedule property as prayed for ?

2. Whether the alleged will executed by Mallipamula Jogi Raju

dt:20.02.1981 is true, valid and binding on the parties ?

3. Whether the defendants 9 and 10 are entitled to any share in the schedule property ? Counter Claim :

4. Whether the receipt dt:13.02.2013 executed by D1 to D3 and D6 in favour of D11 is true, valid and binding on the plaintiffs ?

5. Whether D11 is entitled for Specific Performance of Agreement of Sale against D1 to D8 after paying the balance of sale consideration ?

11 Fair judgment in O.S.No.152/2014

6. Whether D11 is entitled for Specific Performance of Agreement of Sale against D1 to D8 so far as shares being allotted to D1 to D8 ?

7. Whether D11 is entitled to refund of Rs.10,00,000/- (Rupees Ten Lakhs only) with interest as prayed for ?

8. To what relief ?

22.During trial, 1st plaintiff Medisetti Ratna alone examined as PW1 and Ex.A1 to

Ex.A13 documents got marked :

Ex.A.1:Registration extract of sale deed dated 03.07.1971 for the schedule property stands in the name of late Jogi Raju and others. Ex.A.2:Registration extract of Relinquishment deed dated 22.06.1974 executed by Undavalli Manikyam, Venkata Ramana, Veerabadra Rao, Rangarao, Satyanarayana and others in favour of Late Jogi Raju in respect of plaint schedule property. Ex.A.3:Office copy of the notice dated 11.12.2006 got issued to the D.1, D.2 and D.6 to D.8 and others by the plaintiffs and D.9 and D.10. Ex.A.4:Office copy of the reply notice dated 28.12.2006 for (Ex.A.3 ) got issued D.1, D.2 and D.6 to D.8 and others to by the Plaintiff No.2 and 5 others through their advocate.

Ex.A.5:Office copy of Rejoinder dated 29.01.2007 got issued by 1st plaintiff and others in respect of Ex.A.4 notice. Ex.A.6:Office copy of the Reminder notice dated 11.04.2007 got issued by the plaintiffs through their counsel seeking supply of testimonial documents to counsel for defendants. Ex.A.7:Reply dated 04.06.2007 issued by the defendants in pursuant Ex.A.6. Ex.A.8:Eenadu District Edition Paper publication dated 13.03.2007 issued by the plaintiffs 1 to 4, defendant Nos. 9 and 10 through their Advocate. Ex.A.9:Eenadu District Edition Paper publication dated 10.04.2013 issued by the 11th defendant. Ex.A.10:Copy of Death Certificate of Late M. Jogi Raju dated 14.11.1985. Ex.A.11:Office copy of the lawyer notice dated 10.03.2013 issued by 1st plaintiff to Plaintiff Nos. 2 to 4, D.1 to D.8 & others. Ex.A.12:Reply notice dated 28.05.2014 for Ex.A.11. Ex.A.13:Paper publication dated 02.07.2014 got issued by the plaintiff 1 to 4 and defendant Nos.9 and 10 in Eenadu daily newspaper.

23.On the other hand, 11th defendant Natchimuthu Udaya Bhanu examined as

DW1 and Ex.B3 to Ex.B9 documents got marked in his evidence. Ex.B1 and Ex.B2 12 Fair judgment in O.S.No.152/2014 got marked in the cross-examination of PW1. 1st defendant Mallipamula Rambabu examined as DW2 and Ex.B10 to Ex.B17 documents got marked in his evidence.

The defendants are also examined DW3 Mudunuri Vijay Bhaskar Raju, S/o.Balarama

Krishnam Raju to identify the signature of Balaram Krishnam Raju on unregistered will dt:20.02.1981. The descriptive particulars of Ex.B1 to Ex.B17 mentioned below :

Ex.B1: Khararunama dated 06.12.1995 executed by plaintiff Nos.1 to 4, D.9 and D.10 in favour of their brothers. Ex.B2:Reply letter dated 14.04.2013 issued by 1st plaintiff in pursuance of Ex.A.9 paper publication. Ex.B3:Notice dated 15.04.2013 issued by M. Sai Venkata Ramana in pursuance of Ex.A.9 paper publication. Ex.B4:Office copy of the notice dated 01.05.2013 got issued by D.11 to defendant Nos. 1, 2, 3 and 6. Ex.B5:Reply dated 10.05.2013 in pursuance of Ex.B.4. Ex.B6:Rejoinder dated 06.06.2013 got issued by D.11 to defendants 1, 2, 3 and 6. Ex.B7:Reply notice dated 24.07.2018 in pursuance of Ex.B.6. Ex.B8:Office copy of the lawyer notice dated 10.03.2013 issued by 1st plaintiff to Plaintiff Nos. 2 to 4, D.1 to D.8 & others. Ex.B9:Receipt dated 13.02.2013 executed by D.1, D.2, D.3 and D.6 in favour of D.11. Ex.B10:Unregistered Will dated 20-2-1981 executed by Mallipamula Jogiraju in favour of Defendant No.1, 2, Ramnuja Lakshmana Raju, Satya Veerabadra Rao. Ex.B11:Registration extract of Relinquishment deed dated 22.06.1974 executed by Undavalli Manikyam, Venkata Ramana, Veerabadra Rao, Rangarao, Satyanarayana and others in favour of Late Jogi Raju in respect of plaint schedule property. Ex.B12:Letter addressed by the Municipal Corporation to defendant No.5,

dated 31-10-2019 under the provisions of Right to Information Act

seeking information. Ex.B13:Letter addressed by the Municipal Corporation to defendant No.5,

dated 21-1-2020 under the provisions of Right to Information Act

seeking information. Ex.B14:Letter addressed by the Municipal Corporation to defendant No.5,

dated 11-3-2020 under the provisions of Right to Information Act

seeking information. Ex.B15:Andhra Bank Pass Book Account No.89/2 of M/s. Manikya Diesel House.

13 Fair judgment in O.S.No.152/2014

Ex.B16:Tax Receipt, dated 25-10-1999 stands in the name of Defendant No.1,3,5 and 6 relating to plaint schedule property. Ex.B17:Demand Notice dated 7-2-1987 relating to plaint schedule property issued in the name of M.Veera Bhadra Rao by Commissioner, Municipality, Kakinada.

24.I have heard arguments of Learned Counsel for plaintiffs Sri B.Radha Krishna and Learned Counsel for D1 to D8 Sri Vidya Sagar and counsel for the 11th defendant Sri G.V.L.Narasimha Rao, D9 and D10 who are no other than the sisters of the plaintiffs supported to the version of plaintiffs.

25.I have perused the material on record and consider the contentions of counsels who are appearing in respect of parties.

26.Issue No.2 :

2. Whether the alleged will executed by Mallipamula Jogi Raju

dt:20.02.1981(Ex.B10) is true, valid and binding on the

parties ?

The present issue is a crucial one to determine the rights of the plaintiffs and defendants. Therefore, this court firstly answered the present issue.

27.Defendants 1 to 8 mainly relied upon Ex.B10 unregistered will dt:20.02.1981 purpoted to have been executed by Mallipamula Jogi Raju in favour of 1st defendant, 2nd defendant, Mallipamula Ramanjaneya Lakshmana Babu and Mallipamula

Veerabhadra Rao, who are no other than the sons of Mallipamula Jogi Raju in respect of plaint schedule property (item No.2 in the will). Sri B.Radha Krishna, Learned

Counsel for the plaintiffs mainly contended that the defendants 1 to 8 concocted and fabricated Ex.B10 unregistered will purpoted to have been executed by Late

Mallipamula Jogi Raju in order to deprive the rights of the plaintiffs to claim share over the property.

28.In order to appreciate the contentions of the counsel and it is relevant to refer the preposition laid down in the judgment of Bench of Three Judges of Hon’ble Apex

Court in Smt.Jaswant Kaur Vs. Smt.Amrit Kaur 1 wherein the law has been crstalysed for proving of the will. In the above case, the law aspect is very clear that 1AIR 1977 SC 74 14 Fair judgment in O.S.No.152/2014 in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. The test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by testator.

It is further held that the initial onus of the propounder to remove all reasonable doubts in the matter.

29.The plea taken by plaintiffs, D9 and D10 are that Late Mallipamula Jogi Raju never executed any will muchless Ex.B10 during his lifetime and it is a fabricated document in order to avoid share over the schedule property to the daughters of

Late Mallipamula Jogi Raju.

30. The principle laid down in the above decision No.1 cited supra, it is very clear that the heavy burden lies upon D1 to D8 to prove the contents of Ex.B10 unregistered will and Late Mallipamula Jogi Raju executed the same in favour of his sons.

31.The first and foremost contention of the counsel for defendants 1 to 8

Sri J.R.V.S.V.Sagar that as per Ex.A3 lawyer notice is sufficient to establish the fact that the plaintiffs and defendants 9 and 10 have got knowledge about the execution of Ex.B10 will and he further contended that the recitals of Ex.B1 document also established the proving of the will by defendants 1 to 8.

32.In opugnation, Sri B.Radha Krishna, Learned Counsel for the plaintiffs vehemently argued that the entire contents of the notice to be consider and merely the only one word is not sufficient to come to the conclusion. Thus, this court carefully read the contents of Ex.A3 lawyer notice got issued by the plaintiffs, D9 and D10 to the defendants. It is no doubt true that as stated by the defendant counsel the word “bequeathed” by Jogiraju mentioned, however in the above line it was stated that Jogiraju died intestate on 14.11.1985. Therefore, the mere word “bequeathed” as mentioned in Ex.A3 lawyer notice is not sufficient to prove the execution of Ex.B10 unregistered will by Late Mallipamula Jogi Raju. Admittedly, the 15 Fair judgment in O.S.No.152/2014 attestors of Ex.B10 Vegulla Papayya and Balarama Krishnam Raju are no more. In order to prove the will the defendants examined DW3, who is no other than the son of Balarama Krishnam Raju, who is one of the attestor. The propounder of the will has to examine atleast one of the attesting witnesses to prove the contents of

Ex.B10 will as per under section 68 of The Indian Evidence Act. If the attestors are not found, the proof of the examination of the document required by law to be decided as per under section 69 of The Indian Evidence Act. At this juncture, the main contention of the counsel for plaintiffs, D9 and D10 are that the defendants 1 to 8 failed to comply the essential conditions as mandated under section 69 of The

Indian Evidence Act and the evidence of DW3 is not sufficient to prove the contents of Ex.B10 unregistered will. The learned counsel in order to support his contention he relies upon the following decisions :

1. Gondrala Sithamahalakshmi and another Vs.Pulipati Rajarao and others 2

2. Raavi Nookaraju Vs. Kotaru Latchayyamma and others 3 33.In the present facts of the case, undisputedly the attestors namely Vegulla

Papayya and Balarama Krishnam Raju are no more. Therefore, section 69 of The

Indian Evidence Act applies to the present facts of the case. Section 69 of The

Indian Evidence Act postulates that :- “Proof where no attesting witness found. If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.” 34.Now, the crux of the point for consideration is :

“Whether the sole testimony of DW3 is sufficient to comply the conditions mandated under section 69 of The Indian Evidence Act. In decision No.2 cited supra, the Hon’ble High Court of Andhra Pradesh observed in Para 7 of the judgment 22002 (4) ALD 277 (DB) 32012 (3) ALD 423 16 Fair judgment in O.S.No.152/2014 “In the case on hand also the plea of the respondents- defendants is that one attesting witness died and the whereabouts of another attesting witness was not known. In those circumstances, a duty is cast on the respondents-defendants to prove that the signature of the executant on the document is of his own and atleast the signature of one attesting witness has to be identified in a manner known to law. We are sure that mere saying that the signature of attesting witness is of him may not be sufficient unless he produces the signature of the attesting witness on some admissible document and make both the signatures available for comparison by the Court to find out whether the person acted as real witness. Those things had not taken place in this case. Hence we have to respectfully follow the said decision of the Supreme Court and hold that the scribe cannot act as attesting witness more so in the case of a will when the statute mandates that atleast one attesting witnesses should be thereto prove the execution of will.”

In decision No.3 cited supra, the principle laid down in Para 18 of the judgment. In the above decision, the Hon’ble High Court of Andhra Pradesh has held that in order to comply under section 69 of the Indian Evidence Act,

1.the person was under obligation to prove atleast one attesting witness has attested the document;

2.The signature on the document is in the hand-writing of the executant. Unless these two aspects are proved, the person relying upon the document cannot avail the benefit thereof.

35.The prepositions laid down in the above decisions No.2 and 3 cited supra, it is very clear that the defendants 1 to 8 are under obligation to comply with section 69 of The Indian Evidence Act. Whether, however, the attesting witnesses is no available, two aspects need to be proved to the other available evidence viz., that atleast one attesting witnesses has attested the document and that to be the signature on the document is in the hand writing of the executant. The heavy onus lies on the defendants 1 to 8 that they have necessarily examine the witnesses to prove the signature of Mallipamula Jogi Raju, who is executant of the document. In the present 17 Fair judgment in O.S.No.152/2014 case, DW3 in his chief-affidavit in lieu of the chief-examination stated that “My father died in the year 2019. My father told me that he attested the will executed by Mallipamula Jogi Raju on 20.02.1981. My father was the 2 nd attestor of the will. My father told me that Mallipamula Jogi Raju signed on the will in the presence of attestors and attestors signed on the will in the presence of Mallipamula Jogi Raju. I can identify the signature of my father. The signature of the 2 nd attestor on the will dt:20.02.1981 executed by Mallipamula Jogi Raju is that of my father.” 36.DW3 is cross-examined by plaintiff counsel admitted the following aspects :

“I do not know Late Mallipamula Jogi Raju personally. I do not know on what date Mallipamula Jogi Raju died. Whatever the facts stated in my chief-affidavit known through my father. I am having passport of my father which contains the specimen signature of my father. I have no personal knowledge about Ex.B10 document. I have no personal knowledge of Jogiraju family members like family affairs and property dealings.” 37.As per under section 69 of The Indian Evidence Act a duty cast on the defendants No.1 to 8 to prove that the signature of the executant on the document of his own and atleast the signature of one attesting witness has to be identified in the manner known to law. Therefore, the testimony of DW3 shows mere identifying the signature of his father on Ex.B10 unregistered will is not sufficient compliance.

Admittedly, DW3 has not produced any authenticated document where the signature of Balarama Krishnama Raju found for the comparison of his father signature on Ex.B10 will. Further more, the second limb of under section 69 of The

Indian Evidence Act also not complied by D1 to D8 that the signature of the executant found on Ex.B10 is that of the Late Mallipamula Jogi Raju. Keeping in view of the principles laid down in decision No.2 and 3 cited supra and after thorough scan the evidence of DW3, without any hesitation, I hold that the sole testimony of

DW3 is not sufficient to prove Ex.B10 will said to have been executed by Late

Mallipamula Jogi Raju in favour of his sons with respect of plaint schedule property.

The evidence of DW3 alone is not sufficient to comply the conditions mandate under section 69 of The Indian Evidence Act. As I already stated that the propounders of 18 Fair judgment in O.S.No.152/2014 the will has to remove all suspicious circumstances over the will, particularly, the plea of plaintiffs are Ex.B10 is forged and concocted will. The defendants 1 to 8 examined only DW3 to prove the contents of the will and his evidence is not trust- worthy to prove the recitals of will and therefore, I hold that D1 to D8 miserably failed to prove the contents of Ex.B10 unregistered will and thus, they are not entitled to get any right over plaint schedule property based on Ex.B10 unregistered will.

38.It is no doubt true that there are exchange of lawyer notices between both parties prior to the filing of the suit. The contents of lawyer notice or any admissions in the lawyer notice by plaintiffs is not sufficient to proving of unregistered will (Ex.B10).

39.Learned Counsel for Defendants 1 to 8 Sri J.R.V.S.V. Sagar, brought to the notice of the court the contents of Ex.B1 document. Ex.B1 executed by Plaintiff No.1 to 4, D9 and D10 i.e., Khararunama letter in favour of their brothers in respect of the will executed by Late Mallipamula Chittemma on 28.01.1986. The main contention of the defendant counsel is that the plaintiffs 1 to 4 and D9 and D10 are very much knowledge about Ex.B10 unregistered will and that may be the reason they are not raised any objection on the date of Ex.B1 i.e., on 06.12.1985. In decision No.1 cited supra, it is very clear that the propounder of the will to remove all the reasonable doubts for execution of the will and the mere filing of

Ex.B1 document is not sufficient to discharge the burden of the propounder of the will for proving Ex.B10 unregistered will.

40.Learned Counsel for D1 to D8 contended that Ex.B10 unregistered will

dt:20.02.1981 and it is a thirty years old document and as such the presumption

under section 90 of Indian Evidence Act applies to Ex.B10 document and it presumed that the unregistered will dt:20.02.1981 is valid document. It is a settled principle of law laid down in the decision of Hon’ble Apex Court reported in

M.B.Ramesh (D) by LRs Vs. K.M.Veeraje Urs (D) by LRs and Others4 wherein the Hon’ble Apex Court categorically observed that the presumption as 42013 (4) ALD 104 (SC) 19 Fair judgment in O.S.No.152/2014 contemplated under section 90 of Indian Evidence Act in respect of execution of the documents thirty years old has no application to a will. Therefore, the contension of the counsel for defendants 1 to 8 cannot be considered for proving of Ex.B10 will.

41.Having consider the contentions of both counsels and evidence on record,

I hold that the sole testimony of DW3 is not sufficient to prove the execution of

Ex.B10 unregistered will by Late Mallipamula Jogi Raju. DW2 also stated that he has no knowledge about the contents of the will on that date. Therefore, having taken into consideration of the admission of DW3, I hold that defendants 1 to 8 failed to prove the execution of Ex.B10 unregistered will executed by Jogiraju and Ex.B10 is not binding on plaintiffs 1 to 4 and 9 and 10. Thus, the issue is answered against D1 to D8 and in favour of plaintiffs, D9 and D10.

42.Issue No.1 & 3 :

1. Whether the plaintiffs are entitled for preliminary decree for

partition of the plaint schedule property as prayed for ?

3. Whether the defendants 9 and 10 are entitled to any share in the schedule property ?

Plaintiffs 1 to 4, D9 and D10 are no other than the daughters of Late

Mallipamula Jogi Raju. The main contention of plaintiffs are that they are entitled to claim their share over the plaint schedule property which exclusively belongs to

Mallipamula Jogiraju. Ex.A1 and Ex.A2 documents clearly established the fact that the Late Mallipamula Jogiraju is exclusive owner of the plaint schedule property.

43.In this issue, Learned Counsel for D1 to D8 vehemently contended that the suit is not maintainable for partial partition and the plaintiffs failed to implead the other properties left by Mallipamula Jogiraju in plaint schedule property. He further argued that a suit for partial partition does not lie is a settled preposition of law. The counsel further brought to the notice of the court that the plaintiffs failed to mention the exact extent of plaint schedule property and in Ex.A8 paper publication the extent is mentioned “1020 Chadharapu Gajaalu” and whereas in the plaint it was mentioned 703 square yards. Plaintiffs have no knowledge about the total extent of the land and in Ex.A11 notice, PW1 specifically mentioned ‘A’ schedule property and 20 Fair judgment in O.S.No.152/2014 ‘B’ schedule property. ‘A’ schedule property is equivalent to plaint schedule property. ‘B’ schedule property shown as Udaya Bhaskar Cinema Hall at

Bhadrachalam and VijayaBhaskar Cinema Hall at Bhadrachalam. The main contention of D1 to D8 counsel is that the cinema halls at Bhadrachalam are the exclusive properties of Late Mallipamula Jogiraju and thus, properties are not impleaded in the plaint and on that ground that the suit is liable to be dismissed. To substantiate his contention the Learned Counsel for D1 to D8 Sri J.R.V.S.V.Sagar relies upon the decision Eda Mary (died) Per LRs Vs. Yedla Elzebeth Rani and others 5. It is a settled principle of law laid down in catena of decisions that a suit for partial partition does not lie. Now, the crux of the point of consideration is

Whether the ‘B’ schedule property as mentioned in Ex.B8(Ex.A11) lawyer notice i.e., Udaya Bhaskar Cinema Hall and Vijaya Bhaskar Cinema Hall of Bhadrachalam are exclusive properties of Late Mallipamula Raju at the time of his death. In order to come to the right conclusion of the case, it is relevant to refer the admissions made by DW2 in his cross-examination.

44.1st defendant Mallipamula Rambabu examined as DW2. DW2 in his cross- examination by plaintiff counsel mentioned the following aspects regarding the properties left by his father :

“I can remember some aspects of my pleadings mentioned in the written statement as well as my chief-affidavit. I do not remember some aspects of my pleadings mentioned in the written statement as well as my chief-affidavit. The only plaint schedule property is left by the date of death of my father. At the time of death of my mother, one house property located at Bhanugudi Junction, Kakinada stand in her name, 10% share in Udaya Bhaskar picture palace at Bhadrachalam, 12.5% share in Vijaya Bhaskar picture palace at Bhadrachalam and some amount kept in the FDR. One Balarama Krishnam Raju who is my partner informed to me the execution of Ex.B10 will by my father. The said Balarama Krishnam Raju is my partner in Cinema Theatres at Bhadrachalam after the death of my mother, myself and Balarama Krishnam Raju are continued partnership business in Bhadrachalam.” 52019 (2) ALD 170 21 Fair judgment in O.S.No.152/2014 45.The clear admissions made by DW2 that the cinema halls located at

Bhadrachalam are the properties of wife of Late Mallipamula Jogiraju namely

Mallipamula Chittemma. The heavy onus lies upon the defendants 1 to 8 to adduce evidence on record to produce documents to prove that Udaya Bhaskar Cinema Hall and Vijaya Bhaskar Cinema Hall at Bhadrachalam exclusively in the name of Late

Mallipamula Jogiraju. The contents of Ex.A11 (Ex.B8) notice does not established that the ‘B’ schedule property exclusively belongs to Mallipamula Jogiraju and it refers only parents. Therefore, the intention of PW1 at the time of issuance of

Ex.A11 notice that ‘A’ and ‘B’ schedule properties belongs to her parents. There is no clear differentiate in the notice that ‘B’ schedule property exclusively belongs to

Late Mallipamula Jogiraju. There is no cogent or satisfactory evidence on behalf of

D1 and D8 that the ‘B’ schedule property i.e., cinema halls exclusively belongs to

Late Mallipamula Jogiraju. The admission made by DW2 is very clear that the shares in two cinema halls belongs to the mother of DW2. Therefore, I hold that the present suit is certainly maintainable in respect of the plaint schedule property.

46.Be that as it may, it is no doubt true that there is a descrepancy with regard to the extent of the plaint schedule property as mentioned by plaintiffs. The crucial document is Ex.A2 in which Late Jogiraju acquired the plaint schedule property.

Ex.A2 equivalent to Ex.B11. Ex.B11 document clearly shows that there are certain measurements and extent is mentioned as 703 square yards. Having compared the schedule mentioned in Ex.B11 equivalent to Ex.A2 that plaint schedule property itself shows that both are one and the same. However, the descrepancy with regard to the extent of the plaint schedule property would be decided during the final decree proceedings. Merely, basing the said discrepancy is not sufficient to reject the share of the plaintiffs over the plaint schedule property. Therefore, the suit is certainly maintainable in respect of plaint schedule property filed by the plaintiffs.

Plaintiffs No. 1 to 4, D9 and D10 are daughters of Late Mallipamula Jogi Raju and sister of D1 and D2. Thus, they are entitled share over the plaint schedule property on par with sons of Late Mallipamula Jogi Raju. Accordingly, the issues No.1 and 3 are answered in favour of plaintiffs, D9 and D10 and against D1 to D8.

22 Fair judgment in O.S.No.152/2014 47.Issue No.5 and 7 :

5. Whether D11 is entitled for Specific Performance of Agreement

of Sale against D1 to D8 after paying the balance of sale

consideration ?

7. Whether D11 is entitled to refund of Rs.10,00,000/- (Rupees Ten Lakhs only) with interest as prayed for ?

In order to prove the issue, defendant No.11 has filed a counter claim/written statement seeks relief of decree of Specific performance for the plaint schedule property against D1 to D8 directing them to execute a registered sale deed in pursuance of Ex.B9 receipt, an alternative plea for recovery of an amount of

Rs.10,00,000/ with interest. 11th defendant examined as DW1. The specific case of the 11th defendant is that on 13.02.2013, D1, D2, D3 and D6 executed a receipt in his favour for agreeing sale of plaint schedule property an amount of Rs.32,000/ per square yard and on that date 11th defendant paid an amount of Rs.10,00,000/. It is further case of the 11th defendant is that he is always ready and willing to perform his part of contract. At the time of execution of Ex.B9, 3rd defendant stated that her son M.V.J.S.Krishna is a minor and she promised to file a petition before the competent court to get permission for alienation of the minor share over the plaint schedule property. DW1 informed that Late Mallipamuma Jogi Raju executed unregistered will in favour of his four sons, in which D1, D2, D3 and D6 get share over the property. 11th defendant made a paper publication on 10.04.2013 (Ex.A9) calling for an objections before purchase of the property and immediately, he received the objection from 1st plaintiff under Ex.B2 reply letter claiming that she is having 1/10th share over the schedule property. Immediately, 11th defendant approached to D1, D2, D3 and D6 and questioning about notice issued by 1st plaintiff, but there is no proper reply. On 01.05.2013 (Ex.B4) 11th defendant got issued a legal notice (Ex.B4) to D1, D2, D3 and D6 informing that he is ready to purchase the property, for which a false reply was given under Ex.B5.

48.At this juncture, counsel for the 11th defendant Sri P.Malleswara Rao/

Sri G.V.L.Narasimha Rao vehemently contended that DW2 categorically admitted in the cross-examination for execution of Ex.B9 receipt and the negotiations taken 23 Fair judgment in O.S.No.152/2014 place on the date of Ex.B9. He further admitted that the receipt of consideration is

Rs.10,00,000/- received by DW2 and there is no latches on the part of 11th defendant and 3rd defendant failed to obtain a permission on behalf of her minor son and as such defendant No.11 not obtained sale deed. Thus, 11th defendant is entitled to obtain a registered sale deed after paying the balance consideration in pursuance of Ex.B9 receipt from D1 to D8.

49.Per contra, Sri J.R.V.S.V.Sagar, counsel for D1 to D8 in reply to the arguments contended that the filing of the counter claim by 11th defendant is not maintainable in accordance with law. He further argued that 11th defendant failed to prove the essential conditions readiness and willingness as mentioned U/Sec.16(c) of Specific

Relief Act, 1963 and 11th defendant should prove all the conditions from the date of the agreement upto the date of decree in order to get a relief of specific performance. The learned counsel raised two objections for allowing the counter claim viz., firstly, DW1 failed to perform his part of contract and not comply the essential conditions U/Sec.16(c) of Specific Relief Act and another ground is that the counter claim filed by 11th defendant is not in accordance with law under Order VIII

Rule 6-A of Code of Civil Procedure.

50.Learned Counsel for Defendants 1 to 8 relies upon the decision of the Hon’ble

Apex Court reported in Rohit Singh and others Vs. State of Bihar (Now State of Jharkhand)6. In the above decision, in Para 19 of the judgment, the Hon’ble

Apex Court clearly observed that “a counter claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter claim directed solely against the co-defendants cannot be maintained.By filing a counter- claim the litigation cannot be converted into some sort of an inter- pleader suit.” 51.In the instant case, 11th defendant sought a relief against D1 to D8 and no relief sought against the plaintiffs. Admittedly, 11th defendant is not the family 62006 (6) ALT 45 (SC) 24 Fair judgment in O.S.No.152/2014 member of plaintiffs. He is a stranger to the family of plaintiffs. By applying the above principle, the relief sought by the DW1 in the counter claim against the spirit under Order VIII Rule 6-A of CPC and therefore, without any hesitation, I hold that 11th defendant is not entitled for Specific Performance of the agreement of sale against D1 to D8.

52.Be that as it may, Learned Counsel for Defendants 1 to 8 Sri J.R.V.S.V.Sagar also relies upon two decisions i.e.,

1. Saladi Suryanarayana Vs. Evani Suryanarayana Sastry and others 7

2. Dhanraj (Died) per LRs. and others Vs. Saleh 8to establish the preposition that the 11th defendant has to prove his continuous readiness and willingness from the date of the agreement to the date of the decree to get the relief of Specific Performance. In the present case, DW1 in his cross-examination, he admitted that he is an income tax assessee holder and a sufficient balance amount mentioned in the income tax returns for the financial years 2013-2014, 2014-2015.

Admittedly, those documents are not filed before the court in order to prove the financial capacity of DW1. It is a settled principle of law has laid down in the decisions No.7 and 8 that DW1 has to plead not only readiness but also willingness to perform his part of the contract to obtain the registered sale deed in pursuance of obtain Ex.B9. In the present case, there is no positive or satisfactory evidence on the record that DW1 is having a capacity to pay the entire amount as mentioned in

Ex.B9 and viewed from any angle, I hold that 11th defendant is not entitled for the discretionary relief of Specific Performance of the agreement of sale from D1 to D8.

The counter claim filed by 11th defendant is not in accordance with provision under

Order VIII Rule 6-A of CPC and 11th defendant also failed to establish the essential elements under section 16(c) of Specific Relief Act and therefore, 11th defendant is not entitled the relief of Specific Performance of the Agreement of Sale (Ex.B9) and he is also not entitled to recover the amount of Rs.10,00,000/- (Rupees Ten Lakhs only) from D1 to D8. Accordingly, issue No.5 and 7 are answered against 11th defendant.

72020 (3) ALT 528 (TS & AP) 82016 (4) ALD 1 25 Fair judgment in O.S.No.152/2014 53.Issue No.6 :

6. Whether D11 is entitled for Specific Performance of Agreement of Sale against D1 to D8 so far as shares being allotted to D1 to D8 ?

In Issue No.5 and 7, this court observed that the 11th defendant failed to prove the essential elements U/Sec.16(c) of C.P.C and also the counter claim filed by 11th defendant is not in accordance with provision under Order VIII Rule 6-A C.P.C and therefore, 11th defendant is not entitled to obtain the decree from D1 to D8 as being shares allotted to D1 to D8. Thus, 11th defendant is not entitled any relief against D1 to D8 to claim the shares being allotted to them. Accordingly, issue No.6 is answered against 11th defendant.

54.Issue No.4 :

4. Whether the receipt dt:13.02.2013 (Ex.B9) executed by D1 to D3 and D6 in favour of D11 is true, valid and binding on the plaintiffs ?

In the above all the issues, this court observed that 11th defendant failed to prove the contents of Ex.B9 receipt said to have been executed by D1, D2, D3 and

D6 in favour of D11 and counter claim is not maintainable as per law and as such

Ex.B9 receipt dt:13.02.2013 is not binding on the plaintiffs. Accordingly, issue No.4 is answered in favour of plaintiffs and against 11th defendant.

55. Issue No.8 :

8. To what relief ?

In view of the answers in all the issues, this court hold that all the plaintiffs and D9 and D10 are entitled share over the plaint schedule property on par with their brothers.

56.In the result, the suit is decreed and granting a preliminary decree in respect of the plaint schedule property into ten equal shares by meets and bounds. Accordingly, the plaint schedule property is divided into ten equal shares as per good and bad qualities and allotment of 1/10th share to 1st plaintiff, 1/10th share to plaintiffs No.7 and 8 jointly (LRs of 2nd plaintiff), 1/10th share to 3rd plaintiff, 1/10th share to 5th and 6th plaintiffs jointly (LRs of 4th plaintiff), 1/10th share to defendants 9 and 10 each, and accordingly, Preliminary Decree is passed.

26 Fair judgment in O.S.No.152/2014

The plaintiffs has to file a separate application for passing of final decree in terms of the preliminary decree.

The counter claim filed by 11th defendant is dismissed and thereby, 11th defendant is not entitled to recover an amount of Rs.10,00,000/- (Rupees Ten Lakhs only) from D1 to D8.

In view of the relationship between the parties, they are directed to bear their own costs.

Dictated to the Stenographer Gr.III, transcribed and typed by her, corrected and pronounced by me in

open Court, this the 7 th day of April, 2022.

Sd/- N.Srinivasa Rao

IV ADDL.DISTRICT JUDGE,

KAKINADA.

Appendix of Evidence

Witnesses examined

For Plaintiff : For Defendant : P.W.1 : Medisetti Ratna D.W.1 : Natchimuthu Udaya Bhanu D.W.2 : Mallipamula Rambabu D.W.3 : Mudunuri Vijay Bhaskar Raju

Documents marked

For Plaintiff : Ex.A.1:Registration extract of sale deed dated 03.07.1971 for the schedule property stands in the name of late Jogi Raju and others. Ex.A.2:Registration extract of Relinquishment deed dated 22.06.1974 executed by Undavalli Manikyam, Venkata Ramana, Veerabadra Rao, Rangarao, Satyanarayana and others in favour of Late Jogi Raju in respect of plaint schedule property. Ex.A.3:Office copy of the notice dated 11.12.2006 got issued to the D.1, D.2 and D.6 to D.8 and others by the plaintiffs and D.9 and D.10. Ex.A.4:Office copy of the reply notice dated 28.12.2006 for (Ex.A.3 ) got issued D.1, D.2 and D.6 to D.8 and others to by the Plaintiff No.2 and 5 others through their advocate. Ex.A.5:Office copy of Rejoinder dated 29.01.2007 got issued by 1st plaintiff and others in respect of Ex.A.4 notice. Ex.A.6:Office copy of the Reminder notice dated 11.04.2007 got issued by the plaintiffs through their counsel seeking supply of testimonial documents to counsel for defendants. Ex.A.7:Reply dated 04.06.2007 issued by the defendants in pursuant Ex.A.6. Ex.A.8:Eenadu District Edition Paper publication dated 13.03.2007 issued by the plaintiffs 1 to 4, defendant Nos. 9 and 10 through their Advocate. Ex.A.9:Eenadu District Edition Paper publication dated 10.04.2013 issued by the 11th defendant.

27 Fair judgment in O.S.No.152/2014

Ex.A.10:Copy of Death Certificate of Late M. Jogi Raju dated 14.11.1985. Ex.A.11:Office copy of the lawyer notice dated 10.03.2013 issued by 1st plaintiff to Plaintiff Nos. 2 to 4, D.1 to D.8 & others. Ex.A.12:Reply notice dated 28.05.2014 for Ex.A.11. Ex.A.13:Paper publication dated 02.07.2014 got issued by the plaintiff 1 to 4 and defendant Nos.9 and 10 in Eenadu daily newspaper. For Defendant :

Ex.B1: Khararunama dated 06.12.1995 executed by plaintiff Nos.1 to 4, D.9 and D.10 in favour of their brothers. Ex.B2:Reply letter dated 14.04.2013 issued by 1st plaintiff in pursuance of Ex.A.9 paper publication. Ex.B3:Notice dated 15.04.2013 issued by M. Sai Venkata Ramana in pursuance of Ex.A.9 paper publication. Ex.B4:Office copy of the notice dated 01.05.2013 got issued by D.11 to defendant Nos. 1, 2, 3 and 6. Ex.B5:Reply dated 10.05.2013 in pursuance of Ex.B.4. Ex.B6:Rejoinder dated 06.06.2013 got issued by D.11 to defendants 1, 2, 3 and 6. Ex.B7:Reply notice dated 24.07.2018 in pursuance of Ex.B.6. Ex.B8:Office copy of the lawyer notice dated 10.03.2013 issued by 1st plaintiff to Plaintiff Nos. 2 to 4, D.1 to D.8 & others. Ex.B9:Receipt dated 13.02.2013 executed by D.1, D.2, D.3 and D.6 in favour of D.11. Ex.B10:Unregistered Will dated 20-2-1981 executed by Mallipamula Jogiraju in favour of Defendant No.1, 2, Ramnuja Lakshmana Raju, Satya Veerabadra Rao. Ex.B11:Registration extract of Relinquishment deed dated 22.06.1974 executed by Undavalli Manikyam, Venkata Ramana, Veerabadra Rao, Rangarao, Satyanarayana and others in favour of Late Jogi Raju in respect of plaint schedule property. Ex.B12:Letter addressed by the Municipal Corporation to defendant No.5,

dated 31-10-2019 under the provisions of Right to Information Act

seeking information. Ex.B13:Letter addressed by the Municipal Corporation to defendant No.5,

dated 21-1-2020 under the provisions of Right to Information Act

seeking information. Ex.B14:Letter addressed by the Municipal Corporation to defendant No.5,

dated 11-3-2020 under the provisions of Right to Information Act

seeking information.

28 Fair judgment in O.S.No.152/2014

Ex.B15:Andhra Bank Pass Book Account No.89/2 of M/s. Manikya Diesel House. Ex.B16:Tax Receipt, dated 25-10-1999 stands in the name of Defendant No.1,3,5 and 6 relating to plaint schedule property. Ex.B17:Demand Notice dated 7-2-1987 relating to plaint schedule property issued in the name of M.Veera Bhadra Rao by Commissioner, Municipality, Kakinada.

Sd/- N.Srinivasa Rao

IV ADJ/KKD // t.c.f.b.o //

Sr.Superintendent

1 Fair judgment in O.S.No.152/2014

IN THE COURT OF THE IV ADDITIONAL DISTRICT JUDGE: KAKINADA

PRESENT: SRI.N. SRINIVASA RAO, IV ADDITIONAL DISTRICT JUDGE, Thursday, the 7th day of April, 2022

ORIGINAL SUIT NO.152/2014

Between:

1. Medisetti Ratna

2. Yerubandi Suryakantham

3. Mummidi Urmila

4. Thothakura Satyavathi

5. Thothakura Dharma Rao

6. Karri Ramya Kirani (Plaintiffs 5 and 6 are added as per orders in I.A.1161/2016 dt:14.12.2019)

7. Vulimiri Sri Devi

8. Kalaga Satya Priya (Plaintiffs 7 and 8 are added as per orders in I.A.54/2019 dt:09.08.2019)

...Plaintiffs

And

1. Mallipamula Rambabu

2. Mallipamula Siva Sankara Subrahmanyeswarulu

3. Mallipamula Venkata Lakshmi

4. Mallipamula Aparna

5. Mallipamula Jogi Venkata Sai Krishna

6. Mallipamula Sree Devi

7. Mallipamula Ramya

8. Mallipamula Pooja

9. Gollapalli Lakshmichakram

10. Pothula Jagan Mohini

11. Natchimuthu Udaya Bhanu ...Defendants

This suit coming on 30.03.2022 for final hearing before me in the presence of Sri B.Radha Krishna, Advocate for Plaintiffs and of Sri J.R.V.S.V.Sagar, Advocate for Defendants 1 to 3, 5 and 6, Sri P.L.Srinvasa Rao, Advocate for defendants No.9 & 10, Sri Pendyala Malleswara Rao, Sri S.Bhagavan and Sri G.V.L.Narasimha Rao, Advocates for defendant No.11, defendants 7 and 8 remained set-exparte, 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 :

Plaintiffs No.1 to 4, who are no other than children of Mallipamula Jogi Raju and Mallipamula Chittemma have been filed a civil suit seeking the partition of the plaint schedule properties i.e., RCC house and vacant house bearing registered

D.No.23-7-29 an extent of 703 square yards situated Kakinada Municipal

Corporation.

2. The relief sought by the plaintiffs, as verbatim as, mentioned thus :

Grant a preliminary decree for partition of the plaint schedule property into ten equal shares according to good and bad qualities and for allotment of one such share each to the plaintiffs 1 to 3 and one such share of the 4th plaintiff to the 5th and 6th plaintiff equally 2 Fair judgment in O.S.No.152/2014 and thereafter appoint a commissioner for partition of the plaint schedule property as per the preliminary decree by meets and bounds and pass a final decree for the separate share of the plaintiff and pass a decree with costs and future profits over the plaint schedule properties with costs and other reliefs as the Hon’be Court deems fit and proper in the circumstances of the suit.

3.The relationship between plaintiffs and defendants are not in dispute.

Mallipamula Jogi Raju and Mallipamula Chittemma had six daughters viz., Plaintiff

No.1 to 4, defendants 9 and 10 and four sons viz., defendant No.1, defendant No.2,

M.Ramanjanaya Lakshmana Babu (husband of third defendant) and Mallipamula

Veerabhadra Rao (husband of 6th defendant). Mallipamula Jogi Raju died on 14.11.1985 and Chittemma died on 08.04.1988.

4.Originally, plaintiff No.1 to 4 instituted a civil suit. During pendency of suit, 4th plaintiff died intestate on 28.11.2015 and 5th plaintiff is husband of 4th plaintiff and 6th plaintiff is only daughter of 4th plaintiff added as legal heirs of deceased 4th plaintiff as per order in I.A.1161/2016 dt:14.12.2019. Similarly, plaintiff No.2 died during pendency of suit leaving behind her two daughters viz., plaintiff No.7 and 8 and they are added as legal representatives as per order in I.A.54/2019

dt:09.08.2019. Defendants 4 and 5 are children of Late M.Ramanjanaya Lakshmana

Babu and 3rd defendant and defendant No.7 and 8 are children of Late Mallipamula

Veerabhadra Rao and 6th defendant.

5.Brief averments made in the plaint as mentioned thus :

Plaint schedule property is a house situated in Duggiralavari Street, Kakinada, which was purchased by Late Mallipamula Jogi Raju along with Undavilli Subbarao and others on 03.07.1971 under registered sale deed. Thereafter, on 22.06.1974

Undavilli Manikyam and others executed a registered relinquishment deed in favour of Late Mallipamula Jogi Raju by relinquishing their shares in the schedule property and as such Late Mallipamula Jogi Raju became absolute owner of plaint schedule property and he has been enjoying the property during his lifetime absolutely. After his death, the schedule property was inhereted equally to all the children of Late

Mallipamula Jogi Raju .

3 Fair judgment in O.S.No.152/2014 6.After the death of Mallipamula Jogi Raju, plaintiff and defendant No.1 to 10 enjoyed the property with absolute rights. Thereafter, defendants 1 and 2 along with their brothers with the help of some third parties created some forged documents to grab the plaint schedule property. By knowing that plaintiffs, defendants 9 and 10 got issued a legal notice to defendants 1 and 2 and their two brothers for partition of plaint schedule property into ten equal shares and allot one such share each to them. After receiving the notice on 28.12.2006, defendants 1 and 2, Late M.Ramananjaneya Lakshmana Babu, and Veerabhadra Rao got issued a reply with false allegations stating that Late Mallipamula Jogi Raju executed an unregistered will dt:20.02.1981. Except mentioning the above, they did not mention anything about the alleged will. Plaintiffs, defendants 9 and 10 are very well aware that no will was executed by their father during his lifetime. Defendants 1 and 2 and other two brothers M.Ramananjaneya Lakshmana Babu and Veerabhadra Rao never claimed any right over the property by virtue of will at any time before issuing the reply notice by them and plaint schedule property is in joint and constructive possession of all the children of Late Jogi Raju. Plaintiffs and defendants 9 and 10 gave a rejoinder through their advocate on 29.01.2007 requesting them to send the copy of the alleged will claimed by them, but they have not given any reply. Later, plaintiffs and defendants 9 and 10 got issued a paper publication in Eenadu daily news paper on 13.03.2007 stating that defendants 1 and 2 and their brothers are creating documents to grab the plaint schedule property and informed the public that Late Jogi Raju died intestate and all the children of Late Jogi Raju are having equal rights over the property. After that also plaintiffs and defendants 9 and 10 got issued a remainder through their counsel on 11.04.2007 demanding the defendants to serve the alleged copy of will to them to give a suitable reply. Defendants 1, 2,

M.Ramananjaneya Lakshmana Babu, and Veerabhadra Rao got issued a reply through their counsel on 04.06.2007 with false allegations and informed to the plaintiffs, defendants 9 and 10 that they need not give the alleged copy of will.

Subsequently, due to intervention of elders, the defendants stopped claiming absolute right over the property and agreed before the elders that they will not 4 Fair judgment in O.S.No.152/2014 alienate the plaint schedule property in any manner and they will co-operate for partition of the property into ten equal shares. On several occasions all the legal heirs met and made proposal for partition of the properties. In the meanwhile, plaintiffs, defendants 9 and 10 came to know through paper publication by 11th defendant in Eenadu daily news paper on 10.04.2013 stating that 11th defendant enter into an agreement of sale in respect of plaint schedule property with defendants 1, 2, 3 and 6 and paid an advance amount and asked the public for objections if any. Immediately, on 14.04.2013, 1st plaintiff gave a reply personally to advocate of 11th defendant. Plaintiffs called upon the family meeting and asked their family members to come forward for partition of the plaint schedule property, but defendants 1 to 8 are not co-operating for partition of the plaint schedule property. Defendants 1 to 8 are making preparation to alienatre the plaint schedule property and plaintiffs, defendants 9 and 10 gave a paper publication in

Eenadu news paper on 02.07.2014 informed the public not to purchase the property without their consent. Therefore, there is no alternative for plaintiffs to file suit for partition against defendants 1 to 8 and 11. As the defendants 9 and 10 are not readily available at Kakinada, they were joined as defendants. Thus, plaintiffs are entitled each 1/10th share over plaint schedule property and urged the court to divide the plaint schedule property into ten equal shares and allot one such share according to the good and bad qualities.

7.Written statement filed by defendants 1 to 3, 5 and 6 defendants.

8.Defendants 1 to 3, 5 and 6 defendants denied all the material allegations in the plaint and plaintiffs put to strict proof of each and every allegation in the plaint.

9.The sum and substance of the case of the defendants, in brief, as mentioned thus :

Late Mallipamula Jogiraju executed a will on 20.02.1981 in a sound and disposing state of mind in favour of his four sons (D1, D2, M.Ramananjaneya

Lakshmana Babu and Veerabhadra Rao) in respect of plaint schedule property (Item

No.2 in the will) and bequeathing the property for equal shares. Thus, by virtue of will dt:20.02.1981, the sons of Late Mallipamula Jogiraju are become the absolute 5 Fair judgment in O.S.No.152/2014 owners of the plaint schedule property. On the date of execution of will

dt:20.02.1981, Mallipamula Satya Veerabhadra Rao is aged about 24 years,

1st defendant is aged about 22 years, Mallipamula Ramanjaneya Lakshmana Babu is aged about 20 years and 2nd defendant is aged about 18 years. The will was attested by Vegulla Papayya of Mandapeta Village and Balarama Krishnam Raju.

OneI.P.Varada Rao is the scribe of the will. The attestor and scribe of the will are no more. The will dt:20.02.1981 was acted upon and properties being enjoyed as per the recitals of the will dt:20.02.1981. The plaintiffs and defendants 9 and 10 are not entitled to any share over the plaint schedule property. The plaintiffs are having knowledge of the will dt:20.02.1981 and they never questioned the genuineness of the will dt:20.02.1981 even after death of Mallipamula Jogi Raju.

10.The suit for partial partition is not maintainable under law. The plaintiffs intentionally gave wrong address of defendants 7 and 8. Defendants 7 and 8 are not residents of India, they are residing in USA. 4th defendant is not residing in Kakinada.

She is also away from Kakinada. The plaintiffs are very aware of the will

dt:20.02.1981 and they were supplied the copy of the will on the death ceremony of

Mallipamula Jogi Raju in 1985, that is the reason why the plaintiffs never questioned the will and never claimed any right over plaint schedule property. The copy of the will was already given to plaintiffs at the time of 12th day ceremony i.e., Pedda

Dinam. Therefore, defendants 1 and 2 did not supply the copy of the will again to the plaintiffs. 11th defendant in collusion with plaintiffs and defendants 9 and 10 in order to avoid the sale of the property. 11th defendant is having copy of will

dt:20.02.1981.

11.Mallipamula Chittemma was executed a will on 28.01.1986. When the plaintiffs disputed about the will executed by Mallipamula Chittemma, plaintiffs and defendants 9 and 10 got mediated and accepted the will dt:28.01.1986 and indeed, the property of the mother was sold basing on the will dt:28.01.1986. Plaintiffs, defendants 9 and 10 signed as attestors in the sale deed in the year 2004. Plaintiffs are fully aware of will said to have been executed by their father on 20.02.1981 and if really there is no will they should have made a claim for the property of the father 6 Fair judgment in O.S.No.152/2014 also in the year 1995 itself. The plaintiffs having full knowledge of the execution of will dt:20.02.1981. The xerox copy of the will dt:20.02.1981 is filed herewith and it may be read as part of the written statement. The original Will be produced at the time of trial it is kept in the safe custody. The plaintiffs have no manner of right, title or interest in the property and they no right to make any claim in the property.

Plaintiffs, defendants 9 and 10 are not in joint possession of the property and they have no right to claim any share in the property. In view of the above pleadings, defendants 1 to 3, 5 and 6 urged before the court to dismiss the suit with costs.

12.Defendants 9 and 10 filed a detailed written statement and the contentions and pleadings of defendants 9 and 10 supported to the case of plaintiffs.

Defendants 9 and 10 prayed the court for partition of the plaint schedule property into ten equal shares and allot one such share to this defendants.

13.Defendant No.11 made a counter claim under ORDER VIII RULE 6 of Code of

Civil Procedure by paying the necessary court fees.

14.Brief case of the 11th defendant in the counter claim/written statement as mentioned thus :

Defendants 1, 2, 3 and 6 approached to this defendant in the month of

February, 2013 and informed that the plaint schedule property originally belongs to

Late Mallipamula Jogi Raju, who executed an unregistered will bequeathing the plaint schedule property to his sons and as such they became the absolute owners of the plaint schedule property and they were expressed that they intended to sell the schedule property for sale. This defendant agreed to purchase the schedule property. The defendants offered to purchase the schedule property for consideration of Rs.32,000/- per square yard for total extent of 703 square yards of site. On 13.02.2013 defendants 1, 2, 3 and 6 executed a letter (styled as receipt) stating that they agreed to sell the plaint schedule property for sale consideration of

Rs.32,000/- per square yard for the property bearing D.No.23-7-29, located at

Duggiralavari Street an extent of 703 square yards of site and received an advance amount of Rs.10,00,000/- (Rupees Ten Lakhs only) and also agreed to register the property within two months from that date and defendants 1, 2, 3 and 6 gave an 7 Fair judgment in O.S.No.152/2014 assurance that they will obtain the permission from the court to sell the share of the minors in the meanwhile. Defendants 3 and 6 gave an assurance that they would bring their children at the time of registration of the property and on behalf of them also they entered into an agreement of sale with the defendant. 3rd defendant informed to this defendant that her son M.J.V.S.Krishna is a minor and gave an assurance that she would file a petition before competent court to obtain permission to alienate the share of the plaint schedule property. This defendant made a paper publication on 10.04.2013 for calling objections from the public if any through his counsel Sri M.Narasimha Rao. The defendant has been received objection from 1st plaintiff dt:14.04.2013 claiming that she is having 1/10th share over plaint schedule property. The defendant also received a notice on 15.04.2013 from one Mallipamula Sai Venkata Ramana S/o.Seetharamaswamy of Yanam through their advocate Sri M.V.J.Rama Gopal of Kakinada stating that Late

Mallipamula Jogi Raju is not absolute owner of the schedule property and the schedule property belongs to partnership firm Thandava Vigneswara bus service.

The defendant having received the notice approached to defendants 1, 2, 3 and 6 informed about receiving of the such notice. The defendants not give any proper reply and 6th defendant gave a personal notice on 29.04.2013 asking the defendant to get ready for the registration or else they will forfeit the defendant’s amount. The defendant got issued a legal notice on 01.05.2013 to defendants 1, 2, 3 and 6 and informed them that he is ready for registration of the property and asked them to get no objection from 1st plaintiff and one M.Venkata Ramana and order of alienation of the property from the court for the share of the minor. The defendant informed to them that he is ready with money. The defendant received a reply notice on 10.05.2013 from defendants 1, 2, 3 and 6 through their counsel G.Satyanarayana of

Hyderabad. In the notice they were admitted that they were entered into an agreement of sale that this defendant for the plaint schedule property for amount of

Rs.32,000/- per square yard and received the advance amount of Rs.10,00,000/- (Rupees Ten Lakhs only). Defendants 1, 2, 3 and 6 not had given any answer to get no objection from the objectors and obtaining permission from the court for 8 Fair judgment in O.S.No.152/2014 alienating the share of the minor. In the notice, defendants 1, 2, 3 and 6 insisted the defendant to go for registration without clearing the cloud on the property and also mentioned that they would forfeit the advance amount of Rs.10,00,000/- paid by him if he fails to get the registered property on or before 07.08.2013. The defendant got issued a rejoinder on 06.07.2013. In the rejoinder the defendant informed about filing of guardian petition by 3rd defendant for obtaining permission for alienation of the share of her minor son before III Addl.District Judge’s Court, Kakinada and the same was given S.R.No.2468/2013. This defendant informed them to clear all the disputes over plaint schedule property and without clearing the disputes they cannot insist this defendant to pay balance of consideration and get ready for the registration, otherwise, this defendant would sustain huge loss. Defendants 1, 2, 3 and 6 did not give any answer to the notice and gave a reply on 24.07.2013 with false allegations.

15.Thereafter, this defendant has been received a notice from plaintiffs stating that the defendants 1, 2, 3 and 6 have no right with the plaint schedule property exclusively and asked this defendant not to purchase the property from defendants 1, 2, 3 and 6. All the defendants colluded together and hatched a conspiracy to cause loss to this defendant and created the litigation. This defendant is having right over the plaint schedule property and he is entitled to obtain a registered sale deed from defendants 1, 2, 3 and 6 in respect of plaint schedule property. This defendant is ready with balance consideration and perform his part of the contract.

This defendant made a counter claim in the written statement seeking the relief of

Specific Performance of agreement dt:13.02.2013 from defendants 1 to 8.

16.Defendant No.11 urged before the court to pass a decree as mentioned below:

I.a) Decree of specific performance for the plaint schedule property against the defendants 1 to 8 by directing them to execute the registered sale deed for the plaint schedule property after receiving the balance of sale consideration from this defendant.

Or 9 Fair judgment in O.S.No.152/2014

b) Decree of specific performance for execution of registered sale deed for the shares allotted in the plaint schedule property to the defendants 1 to 8 by receiving the balance of sale consideration for the shares allotted to them proportionarely. Or

II.a) Pass an alternative decree for the return of the advance amount of Rs.10,00,000/- with interest @ 24% p.a from 14.02.2013 to till receiving the amount and create charge over the plaint schedule property for recovery of the advance amount.

III.With costs and such other reliefs as the Hon’ble Court deems fit and proper in the circumstances of the suit.

17.Additional written statement filed by 3rd defendant on behalf of defendants 1, 2, 3, 5 and 6 under ORDER IX RULE 9 of Code of Civil Procedure for the counter claim filed by 11th defendant. Memo filed by D1, D2, D4, D5 to adopt the additional written statement filed by 3rd defendant.

18.Briefly, the contents of the additional written statement, as mentioned thus :

19.The defendants denied allegations made in the counter claim filed by 11th defendant. The alleged agreement dt:13.02.2013 is illegal, invalid under law.

The alleged receipt dt:13.12.2013 is not true, valid and binding on the defendants

No.4, 5, 7 and 8. Defendants No.4, 5, 7 and 8 are not parties to the alleged receipt

dt:13.02.2013 and as such the document is not valid. The alleged receipt appears to

be an agreement of sale and as such alleged receipt requires stamp duty and penalty. The alleged receipt also requires registration and as such the receipt is not admissible in law. The alleged counter claim made by 11th defendant is not in accordance with law and as such the counter claim has to be rejected inlimini. The alleged receipt dt:13.02.2013 does not disclose any stipulation mentioned in the counter claim and in the notice dt:01.05.2013. The reply notice issued on behalf of the defendants may be read as part of the additional written statement. The defendants contended that the suit filed by plaintiff with full knowledge that plaintiffs have no right over the schedule property.

20.Indeed, Late Mallipamula Jogi Raju was executed a will on 20.02.1981 in a sound and disposing state of mind and as per the will the plaint schedule property 10 Fair judgment in O.S.No.152/2014 was bequeathed to 1st defendant, 2nd defendant, husband of 3rd defendant and 5th defendant. The legal heirs of 3rd defendant husband and 5th defendant husband are entitled to share in the property. The alleged receipt dt:13.02.2013 obtained by 11th defendant is not valid under law. Defendants No.4, 5, 7 and 8 never gave any consent for execution of the alleged agreement. The alleged agreement is illegal and invalid under law. 11th defendant has no right to make any counter claim against the present defendants. The alleged counter claim with an alternative prayer is not maintainable under law. 11th defendant did not obtain the sale deed within date from 10.05.2013 even though the persons who executed the receipts are ready and willing to perform their part of contract. The sale deed was not obtained by 10.05.2013 and as such the agreement cancelled and advance is forfeited by D1, D2, D3 and D6. 11th defendant is not entitled to make any counter claim against this defendants. 11th defendant himself has created alleged disputes, indeed, Mallipamula Venkata Ramana, who issued a notice dt:15.04.2013 clearly stated that 11th defendant has no right in the property and nothing to do with the property, inspite of all that also 11th defendant did not obtain the sale deed.

11th defendant is not entitled to any interest or refund of advance amount. The defendants urged before the court to dismiss the counter claim filed by 11th defendant.

21.On the strength of the above pleadings, the following issues are framed for settlement of trial by my Learned Predecessors of the Court on 13.03.2017 :

1. Whether the plaintiffs are entitled for preliminary decree for partition of the plaint schedule property as prayed for ?

2. Whether the alleged will executed by Mallipamula Jogi Raju

dt:20.02.1981 is true, valid and binding on the parties ?

3. Whether the defendants 9 and 10 are entitled to any share in the schedule property ? Counter Claim :

4. Whether the receipt dt:13.02.2013 executed by D1 to D3 and D6 in favour of D11 is true, valid and binding on the plaintiffs ?

5. Whether D11 is entitled for Specific Performance of Agreement of Sale against D1 to D8 after paying the balance of sale consideration ?

11 Fair judgment in O.S.No.152/2014

6. Whether D11 is entitled for Specific Performance of Agreement of Sale against D1 to D8 so far as shares being allotted to D1 to D8 ?

7. Whether D11 is entitled to refund of Rs.10,00,000/- (Rupees Ten Lakhs only) with interest as prayed for ?

8. To what relief ?

22.During trial, 1st plaintiff Medisetti Ratna alone examined as PW1 and Ex.A1 to

Ex.A13 documents got marked :

Ex.A.1:Registration extract of sale deed dated 03.07.1971 for the schedule property stands in the name of late Jogi Raju and others. Ex.A.2:Registration extract of Relinquishment deed dated 22.06.1974 executed by Undavalli Manikyam, Venkata Ramana, Veerabadra Rao, Rangarao, Satyanarayana and others in favour of Late Jogi Raju in respect of plaint schedule property. Ex.A.3:Office copy of the notice dated 11.12.2006 got issued to the D.1, D.2 and D.6 to D.8 and others by the plaintiffs and D.9 and D.10. Ex.A.4:Office copy of the reply notice dated 28.12.2006 for (Ex.A.3 ) got issued D.1, D.2 and D.6 to D.8 and others to by the Plaintiff No.2 and 5 others through their advocate.

Ex.A.5:Office copy of Rejoinder dated 29.01.2007 got issued by 1st plaintiff and others in respect of Ex.A.4 notice. Ex.A.6:Office copy of the Reminder notice dated 11.04.2007 got issued by the plaintiffs through their counsel seeking supply of testimonial documents to counsel for defendants. Ex.A.7:Reply dated 04.06.2007 issued by the defendants in pursuant Ex.A.6. Ex.A.8:Eenadu District Edition Paper publication dated 13.03.2007 issued by the plaintiffs 1 to 4, defendant Nos. 9 and 10 through their Advocate. Ex.A.9:Eenadu District Edition Paper publication dated 10.04.2013 issued by the 11th defendant. Ex.A.10:Copy of Death Certificate of Late M. Jogi Raju dated 14.11.1985. Ex.A.11:Office copy of the lawyer notice dated 10.03.2013 issued by 1st plaintiff to Plaintiff Nos. 2 to 4, D.1 to D.8 & others. Ex.A.12:Reply notice dated 28.05.2014 for Ex.A.11. Ex.A.13:Paper publication dated 02.07.2014 got issued by the plaintiff 1 to 4 and defendant Nos.9 and 10 in Eenadu daily newspaper.

23.On the other hand, 11th defendant Natchimuthu Udaya Bhanu examined as

DW1 and Ex.B3 to Ex.B9 documents got marked in his evidence. Ex.B1 and Ex.B2 12 Fair judgment in O.S.No.152/2014 got marked in the cross-examination of PW1. 1st defendant Mallipamula Rambabu examined as DW2 and Ex.B10 to Ex.B17 documents got marked in his evidence.

The defendants are also examined DW3 Mudunuri Vijay Bhaskar Raju, S/o.Balarama

Krishnam Raju to identify the signature of Balaram Krishnam Raju on unregistered will dt:20.02.1981. The descriptive particulars of Ex.B1 to Ex.B17 mentioned below :

Ex.B1: Khararunama dated 06.12.1995 executed by plaintiff Nos.1 to 4, D.9 and D.10 in favour of their brothers. Ex.B2:Reply letter dated 14.04.2013 issued by 1st plaintiff in pursuance of Ex.A.9 paper publication. Ex.B3:Notice dated 15.04.2013 issued by M. Sai Venkata Ramana in pursuance of Ex.A.9 paper publication. Ex.B4:Office copy of the notice dated 01.05.2013 got issued by D.11 to defendant Nos. 1, 2, 3 and 6. Ex.B5:Reply dated 10.05.2013 in pursuance of Ex.B.4. Ex.B6:Rejoinder dated 06.06.2013 got issued by D.11 to defendants 1, 2, 3 and 6. Ex.B7:Reply notice dated 24.07.2018 in pursuance of Ex.B.6. Ex.B8:Office copy of the lawyer notice dated 10.03.2013 issued by 1st plaintiff to Plaintiff Nos. 2 to 4, D.1 to D.8 & others. Ex.B9:Receipt dated 13.02.2013 executed by D.1, D.2, D.3 and D.6 in favour of D.11. Ex.B10:Unregistered Will dated 20-2-1981 executed by Mallipamula Jogiraju in favour of Defendant No.1, 2, Ramnuja Lakshmana Raju, Satya Veerabadra Rao. Ex.B11:Registration extract of Relinquishment deed dated 22.06.1974 executed by Undavalli Manikyam, Venkata Ramana, Veerabadra Rao, Rangarao, Satyanarayana and others in favour of Late Jogi Raju in respect of plaint schedule property. Ex.B12:Letter addressed by the Municipal Corporation to defendant No.5,

dated 31-10-2019 under the provisions of Right to Information Act

seeking information. Ex.B13:Letter addressed by the Municipal Corporation to defendant No.5,

dated 21-1-2020 under the provisions of Right to Information Act

seeking information. Ex.B14:Letter addressed by the Municipal Corporation to defendant No.5,

dated 11-3-2020 under the provisions of Right to Information Act

seeking information. Ex.B15:Andhra Bank Pass Book Account No.89/2 of M/s. Manikya Diesel House.

13 Fair judgment in O.S.No.152/2014

Ex.B16:Tax Receipt, dated 25-10-1999 stands in the name of Defendant No.1,3,5 and 6 relating to plaint schedule property. Ex.B17:Demand Notice dated 7-2-1987 relating to plaint schedule property issued in the name of M.Veera Bhadra Rao by Commissioner, Municipality, Kakinada.

24.I have heard arguments of Learned Counsel for plaintiffs Sri B.Radha Krishna and Learned Counsel for D1 to D8 Sri Vidya Sagar and counsel for the 11th defendant Sri G.V.L.Narasimha Rao, D9 and D10 who are no other than the sisters of the plaintiffs supported to the version of plaintiffs.

25.I have perused the material on record and consider the contentions of counsels who are appearing in respect of parties.

26.Issue No.2 :

2. Whether the alleged will executed by Mallipamula Jogi Raju

dt:20.02.1981(Ex.B10) is true, valid and binding on the

parties ?

The present issue is a crucial one to determine the rights of the plaintiffs and defendants. Therefore, this court firstly answered the present issue.

27.Defendants 1 to 8 mainly relied upon Ex.B10 unregistered will dt:20.02.1981 purpoted to have been executed by Mallipamula Jogi Raju in favour of 1st defendant, 2nd defendant, Mallipamula Ramanjaneya Lakshmana Babu and Mallipamula

Veerabhadra Rao, who are no other than the sons of Mallipamula Jogi Raju in respect of plaint schedule property (item No.2 in the will). Sri B.Radha Krishna, Learned

Counsel for the plaintiffs mainly contended that the defendants 1 to 8 concocted and fabricated Ex.B10 unregistered will purpoted to have been executed by Late

Mallipamula Jogi Raju in order to deprive the rights of the plaintiffs to claim share over the property.

28.In order to appreciate the contentions of the counsel and it is relevant to refer the preposition laid down in the judgment of Bench of Three Judges of Hon’ble Apex

Court in Smt.Jaswant Kaur Vs. Smt.Amrit Kaur 1 wherein the law has been crstalysed for proving of the will. In the above case, the law aspect is very clear that 1AIR 1977 SC 74 14 Fair judgment in O.S.No.152/2014 in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. The test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by testator.

It is further held that the initial onus of the propounder to remove all reasonable doubts in the matter.

29.The plea taken by plaintiffs, D9 and D10 are that Late Mallipamula Jogi Raju never executed any will muchless Ex.B10 during his lifetime and it is a fabricated document in order to avoid share over the schedule property to the daughters of

Late Mallipamula Jogi Raju.

30. The principle laid down in the above decision No.1 cited supra, it is very clear that the heavy burden lies upon D1 to D8 to prove the contents of Ex.B10 unregistered will and Late Mallipamula Jogi Raju executed the same in favour of his sons.

31.The first and foremost contention of the counsel for defendants 1 to 8

Sri J.R.V.S.V.Sagar that as per Ex.A3 lawyer notice is sufficient to establish the fact that the plaintiffs and defendants 9 and 10 have got knowledge about the execution of Ex.B10 will and he further contended that the recitals of Ex.B1 document also established the proving of the will by defendants 1 to 8.

32.In opugnation, Sri B.Radha Krishna, Learned Counsel for the plaintiffs vehemently argued that the entire contents of the notice to be consider and merely the only one word is not sufficient to come to the conclusion. Thus, this court carefully read the contents of Ex.A3 lawyer notice got issued by the plaintiffs, D9 and D10 to the defendants. It is no doubt true that as stated by the defendant counsel the word “bequeathed” by Jogiraju mentioned, however in the above line it was stated that Jogiraju died intestate on 14.11.1985. Therefore, the mere word “bequeathed” as mentioned in Ex.A3 lawyer notice is not sufficient to prove the execution of Ex.B10 unregistered will by Late Mallipamula Jogi Raju. Admittedly, the 15 Fair judgment in O.S.No.152/2014 attestors of Ex.B10 Vegulla Papayya and Balarama Krishnam Raju are no more. In order to prove the will the defendants examined DW3, who is no other than the son of Balarama Krishnam Raju, who is one of the attestor. The propounder of the will has to examine atleast one of the attesting witnesses to prove the contents of

Ex.B10 will as per under section 68 of The Indian Evidence Act. If the attestors are not found, the proof of the examination of the document required by law to be decided as per under section 69 of The Indian Evidence Act. At this juncture, the main contention of the counsel for plaintiffs, D9 and D10 are that the defendants 1 to 8 failed to comply the essential conditions as mandated under section 69 of The

Indian Evidence Act and the evidence of DW3 is not sufficient to prove the contents of Ex.B10 unregistered will. The learned counsel in order to support his contention he relies upon the following decisions :

1. Gondrala Sithamahalakshmi and another Vs.Pulipati Rajarao and others 2

2. Raavi Nookaraju Vs. Kotaru Latchayyamma and others 3 33.In the present facts of the case, undisputedly the attestors namely Vegulla

Papayya and Balarama Krishnam Raju are no more. Therefore, section 69 of The

Indian Evidence Act applies to the present facts of the case. Section 69 of The

Indian Evidence Act postulates that :- “Proof where no attesting witness found. If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.” 34.Now, the crux of the point for consideration is :

“Whether the sole testimony of DW3 is sufficient to comply the conditions mandated under section 69 of The Indian Evidence Act. In decision No.2 cited supra, the Hon’ble High Court of Andhra Pradesh observed in Para 7 of the judgment 22002 (4) ALD 277 (DB) 32012 (3) ALD 423 16 Fair judgment in O.S.No.152/2014 “In the case on hand also the plea of the respondents- defendants is that one attesting witness died and the whereabouts of another attesting witness was not known. In those circumstances, a duty is cast on the respondents-defendants to prove that the signature of the executant on the document is of his own and atleast the signature of one attesting witness has to be identified in a manner known to law. We are sure that mere saying that the signature of attesting witness is of him may not be sufficient unless he produces the signature of the attesting witness on some admissible document and make both the signatures available for comparison by the Court to find out whether the person acted as real witness. Those things had not taken place in this case. Hence we have to respectfully follow the said decision of the Supreme Court and hold that the scribe cannot act as attesting witness more so in the case of a will when the statute mandates that atleast one attesting witnesses should be thereto prove the execution of will.”

In decision No.3 cited supra, the principle laid down in Para 18 of the judgment. In the above decision, the Hon’ble High Court of Andhra Pradesh has held that in order to comply under section 69 of the Indian Evidence Act,

1.the person was under obligation to prove atleast one attesting witness has attested the document;

2.The signature on the document is in the hand-writing of the executant. Unless these two aspects are proved, the person relying upon the document cannot avail the benefit thereof.

35.The prepositions laid down in the above decisions No.2 and 3 cited supra, it is very clear that the defendants 1 to 8 are under obligation to comply with section 69 of The Indian Evidence Act. Whether, however, the attesting witnesses is no available, two aspects need to be proved to the other available evidence viz., that atleast one attesting witnesses has attested the document and that to be the signature on the document is in the hand writing of the executant. The heavy onus lies on the defendants 1 to 8 that they have necessarily examine the witnesses to prove the signature of Mallipamula Jogi Raju, who is executant of the document. In the present 17 Fair judgment in O.S.No.152/2014 case, DW3 in his chief-affidavit in lieu of the chief-examination stated that “My father died in the year 2019. My father told me that he attested the will executed by Mallipamula Jogi Raju on 20.02.1981. My father was the 2 nd attestor of the will. My father told me that Mallipamula Jogi Raju signed on the will in the presence of attestors and attestors signed on the will in the presence of Mallipamula Jogi Raju. I can identify the signature of my father. The signature of the 2 nd attestor on the will dt:20.02.1981 executed by Mallipamula Jogi Raju is that of my father.” 36.DW3 is cross-examined by plaintiff counsel admitted the following aspects :

“I do not know Late Mallipamula Jogi Raju personally. I do not know on what date Mallipamula Jogi Raju died. Whatever the facts stated in my chief-affidavit known through my father. I am having passport of my father which contains the specimen signature of my father. I have no personal knowledge about Ex.B10 document. I have no personal knowledge of Jogiraju family members like family affairs and property dealings.” 37.As per under section 69 of The Indian Evidence Act a duty cast on the defendants No.1 to 8 to prove that the signature of the executant on the document of his own and atleast the signature of one attesting witness has to be identified in the manner known to law. Therefore, the testimony of DW3 shows mere identifying the signature of his father on Ex.B10 unregistered will is not sufficient compliance.

Admittedly, DW3 has not produced any authenticated document where the signature of Balarama Krishnama Raju found for the comparison of his father signature on Ex.B10 will. Further more, the second limb of under section 69 of The

Indian Evidence Act also not complied by D1 to D8 that the signature of the executant found on Ex.B10 is that of the Late Mallipamula Jogi Raju. Keeping in view of the principles laid down in decision No.2 and 3 cited supra and after thorough scan the evidence of DW3, without any hesitation, I hold that the sole testimony of

DW3 is not sufficient to prove Ex.B10 will said to have been executed by Late

Mallipamula Jogi Raju in favour of his sons with respect of plaint schedule property.

The evidence of DW3 alone is not sufficient to comply the conditions mandate under section 69 of The Indian Evidence Act. As I already stated that the propounders of 18 Fair judgment in O.S.No.152/2014 the will has to remove all suspicious circumstances over the will, particularly, the plea of plaintiffs are Ex.B10 is forged and concocted will. The defendants 1 to 8 examined only DW3 to prove the contents of the will and his evidence is not trust- worthy to prove the recitals of will and therefore, I hold that D1 to D8 miserably failed to prove the contents of Ex.B10 unregistered will and thus, they are not entitled to get any right over plaint schedule property based on Ex.B10 unregistered will.

38.It is no doubt true that there are exchange of lawyer notices between both parties prior to the filing of the suit. The contents of lawyer notice or any admissions in the lawyer notice by plaintiffs is not sufficient to proving of unregistered will (Ex.B10).

39.Learned Counsel for Defendants 1 to 8 Sri J.R.V.S.V. Sagar, brought to the notice of the court the contents of Ex.B1 document. Ex.B1 executed by Plaintiff No.1 to 4, D9 and D10 i.e., Khararunama letter in favour of their brothers in respect of the will executed by Late Mallipamula Chittemma on 28.01.1986. The main contention of the defendant counsel is that the plaintiffs 1 to 4 and D9 and D10 are very much knowledge about Ex.B10 unregistered will and that may be the reason they are not raised any objection on the date of Ex.B1 i.e., on 06.12.1985. In decision No.1 cited supra, it is very clear that the propounder of the will to remove all the reasonable doubts for execution of the will and the mere filing of

Ex.B1 document is not sufficient to discharge the burden of the propounder of the will for proving Ex.B10 unregistered will.

40.Learned Counsel for D1 to D8 contended that Ex.B10 unregistered will

dt:20.02.1981 and it is a thirty years old document and as such the presumption

under section 90 of Indian Evidence Act applies to Ex.B10 document and it presumed that the unregistered will dt:20.02.1981 is valid document. It is a settled principle of law laid down in the decision of Hon’ble Apex Court reported in

M.B.Ramesh (D) by LRs Vs. K.M.Veeraje Urs (D) by LRs and Others4 wherein the Hon’ble Apex Court categorically observed that the presumption as 42013 (4) ALD 104 (SC) 19 Fair judgment in O.S.No.152/2014 contemplated under section 90 of Indian Evidence Act in respect of execution of the documents thirty years old has no application to a will. Therefore, the contension of the counsel for defendants 1 to 8 cannot be considered for proving of Ex.B10 will.

41.Having consider the contentions of both counsels and evidence on record,

I hold that the sole testimony of DW3 is not sufficient to prove the execution of

Ex.B10 unregistered will by Late Mallipamula Jogi Raju. DW2 also stated that he has no knowledge about the contents of the will on that date. Therefore, having taken into consideration of the admission of DW3, I hold that defendants 1 to 8 failed to prove the execution of Ex.B10 unregistered will executed by Jogiraju and Ex.B10 is not binding on plaintiffs 1 to 4 and 9 and 10. Thus, the issue is answered against D1 to D8 and in favour of plaintiffs, D9 and D10.

42.Issue No.1 & 3 :

1. Whether the plaintiffs are entitled for preliminary decree for

partition of the plaint schedule property as prayed for ?

3. Whether the defendants 9 and 10 are entitled to any share in the schedule property ?

Plaintiffs 1 to 4, D9 and D10 are no other than the daughters of Late

Mallipamula Jogi Raju. The main contention of plaintiffs are that they are entitled to claim their share over the plaint schedule property which exclusively belongs to

Mallipamula Jogiraju. Ex.A1 and Ex.A2 documents clearly established the fact that the Late Mallipamula Jogiraju is exclusive owner of the plaint schedule property.

43.In this issue, Learned Counsel for D1 to D8 vehemently contended that the suit is not maintainable for partial partition and the plaintiffs failed to implead the other properties left by Mallipamula Jogiraju in plaint schedule property. He further argued that a suit for partial partition does not lie is a settled preposition of law. The counsel further brought to the notice of the court that the plaintiffs failed to mention the exact extent of plaint schedule property and in Ex.A8 paper publication the extent is mentioned “1020 Chadharapu Gajaalu” and whereas in the plaint it was mentioned 703 square yards. Plaintiffs have no knowledge about the total extent of the land and in Ex.A11 notice, PW1 specifically mentioned ‘A’ schedule property and 20 Fair judgment in O.S.No.152/2014 ‘B’ schedule property. ‘A’ schedule property is equivalent to plaint schedule property. ‘B’ schedule property shown as Udaya Bhaskar Cinema Hall at

Bhadrachalam and VijayaBhaskar Cinema Hall at Bhadrachalam. The main contention of D1 to D8 counsel is that the cinema halls at Bhadrachalam are the exclusive properties of Late Mallipamula Jogiraju and thus, properties are not impleaded in the plaint and on that ground that the suit is liable to be dismissed. To substantiate his contention the Learned Counsel for D1 to D8 Sri J.R.V.S.V.Sagar relies upon the decision Eda Mary (died) Per LRs Vs. Yedla Elzebeth Rani and others 5. It is a settled principle of law laid down in catena of decisions that a suit for partial partition does not lie. Now, the crux of the point of consideration is

Whether the ‘B’ schedule property as mentioned in Ex.B8(Ex.A11) lawyer notice i.e., Udaya Bhaskar Cinema Hall and Vijaya Bhaskar Cinema Hall of Bhadrachalam are exclusive properties of Late Mallipamula Raju at the time of his death. In order to come to the right conclusion of the case, it is relevant to refer the admissions made by DW2 in his cross-examination.

44.1st defendant Mallipamula Rambabu examined as DW2. DW2 in his cross- examination by plaintiff counsel mentioned the following aspects regarding the properties left by his father :

“I can remember some aspects of my pleadings mentioned in the written statement as well as my chief-affidavit. I do not remember some aspects of my pleadings mentioned in the written statement as well as my chief-affidavit. The only plaint schedule property is left by the date of death of my father. At the time of death of my mother, one house property located at Bhanugudi Junction, Kakinada stand in her name, 10% share in Udaya Bhaskar picture palace at Bhadrachalam, 12.5% share in Vijaya Bhaskar picture palace at Bhadrachalam and some amount kept in the FDR. One Balarama Krishnam Raju who is my partner informed to me the execution of Ex.B10 will by my father. The said Balarama Krishnam Raju is my partner in Cinema Theatres at Bhadrachalam after the death of my mother, myself and Balarama Krishnam Raju are continued partnership business in Bhadrachalam.” 52019 (2) ALD 170 21 Fair judgment in O.S.No.152/2014 45.The clear admissions made by DW2 that the cinema halls located at

Bhadrachalam are the properties of wife of Late Mallipamula Jogiraju namely

Mallipamula Chittemma. The heavy onus lies upon the defendants 1 to 8 to adduce evidence on record to produce documents to prove that Udaya Bhaskar Cinema Hall and Vijaya Bhaskar Cinema Hall at Bhadrachalam exclusively in the name of Late

Mallipamula Jogiraju. The contents of Ex.A11 (Ex.B8) notice does not established that the ‘B’ schedule property exclusively belongs to Mallipamula Jogiraju and it refers only parents. Therefore, the intention of PW1 at the time of issuance of

Ex.A11 notice that ‘A’ and ‘B’ schedule properties belongs to her parents. There is no clear differentiate in the notice that ‘B’ schedule property exclusively belongs to

Late Mallipamula Jogiraju. There is no cogent or satisfactory evidence on behalf of

D1 and D8 that the ‘B’ schedule property i.e., cinema halls exclusively belongs to

Late Mallipamula Jogiraju. The admission made by DW2 is very clear that the shares in two cinema halls belongs to the mother of DW2. Therefore, I hold that the present suit is certainly maintainable in respect of the plaint schedule property.

46.Be that as it may, it is no doubt true that there is a descrepancy with regard to the extent of the plaint schedule property as mentioned by plaintiffs. The crucial document is Ex.A2 in which Late Jogiraju acquired the plaint schedule property.

Ex.A2 equivalent to Ex.B11. Ex.B11 document clearly shows that there are certain measurements and extent is mentioned as 703 square yards. Having compared the schedule mentioned in Ex.B11 equivalent to Ex.A2 that plaint schedule property itself shows that both are one and the same. However, the descrepancy with regard to the extent of the plaint schedule property would be decided during the final decree proceedings. Merely, basing the said discrepancy is not sufficient to reject the share of the plaintiffs over the plaint schedule property. Therefore, the suit is certainly maintainable in respect of plaint schedule property filed by the plaintiffs.

Plaintiffs No. 1 to 4, D9 and D10 are daughters of Late Mallipamula Jogi Raju and sister of D1 and D2. Thus, they are entitled share over the plaint schedule property on par with sons of Late Mallipamula Jogi Raju. Accordingly, the issues No.1 and 3 are answered in favour of plaintiffs, D9 and D10 and against D1 to D8.

22 Fair judgment in O.S.No.152/2014 47.Issue No.5 and 7 :

5. Whether D11 is entitled for Specific Performance of Agreement

of Sale against D1 to D8 after paying the balance of sale

consideration ?

7. Whether D11 is entitled to refund of Rs.10,00,000/- (Rupees Ten Lakhs only) with interest as prayed for ?

In order to prove the issue, defendant No.11 has filed a counter claim/written statement seeks relief of decree of Specific performance for the plaint schedule property against D1 to D8 directing them to execute a registered sale deed in pursuance of Ex.B9 receipt, an alternative plea for recovery of an amount of

Rs.10,00,000/ with interest. 11th defendant examined as DW1. The specific case of the 11th defendant is that on 13.02.2013, D1, D2, D3 and D6 executed a receipt in his favour for agreeing sale of plaint schedule property an amount of Rs.32,000/ per square yard and on that date 11th defendant paid an amount of Rs.10,00,000/. It is further case of the 11th defendant is that he is always ready and willing to perform his part of contract. At the time of execution of Ex.B9, 3rd defendant stated that her son M.V.J.S.Krishna is a minor and she promised to file a petition before the competent court to get permission for alienation of the minor share over the plaint schedule property. DW1 informed that Late Mallipamuma Jogi Raju executed unregistered will in favour of his four sons, in which D1, D2, D3 and D6 get share over the property. 11th defendant made a paper publication on 10.04.2013 (Ex.A9) calling for an objections before purchase of the property and immediately, he received the objection from 1st plaintiff under Ex.B2 reply letter claiming that she is having 1/10th share over the schedule property. Immediately, 11th defendant approached to D1, D2, D3 and D6 and questioning about notice issued by 1st plaintiff, but there is no proper reply. On 01.05.2013 (Ex.B4) 11th defendant got issued a legal notice (Ex.B4) to D1, D2, D3 and D6 informing that he is ready to purchase the property, for which a false reply was given under Ex.B5.

48.At this juncture, counsel for the 11th defendant Sri P.Malleswara Rao/

Sri G.V.L.Narasimha Rao vehemently contended that DW2 categorically admitted in the cross-examination for execution of Ex.B9 receipt and the negotiations taken 23 Fair judgment in O.S.No.152/2014 place on the date of Ex.B9. He further admitted that the receipt of consideration is

Rs.10,00,000/- received by DW2 and there is no latches on the part of 11th defendant and 3rd defendant failed to obtain a permission on behalf of her minor son and as such defendant No.11 not obtained sale deed. Thus, 11th defendant is entitled to obtain a registered sale deed after paying the balance consideration in pursuance of Ex.B9 receipt from D1 to D8.

49.Per contra, Sri J.R.V.S.V.Sagar, counsel for D1 to D8 in reply to the arguments contended that the filing of the counter claim by 11th defendant is not maintainable in accordance with law. He further argued that 11th defendant failed to prove the essential conditions readiness and willingness as mentioned U/Sec.16(c) of Specific

Relief Act, 1963 and 11th defendant should prove all the conditions from the date of the agreement upto the date of decree in order to get a relief of specific performance. The learned counsel raised two objections for allowing the counter claim viz., firstly, DW1 failed to perform his part of contract and not comply the essential conditions U/Sec.16(c) of Specific Relief Act and another ground is that the counter claim filed by 11th defendant is not in accordance with law under Order VIII

Rule 6-A of Code of Civil Procedure.

50.Learned Counsel for Defendants 1 to 8 relies upon the decision of the Hon’ble

Apex Court reported in Rohit Singh and others Vs. State of Bihar (Now State of Jharkhand)6. In the above decision, in Para 19 of the judgment, the Hon’ble

Apex Court clearly observed that “a counter claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter claim directed solely against the co-defendants cannot be maintained.By filing a counter- claim the litigation cannot be converted into some sort of an inter- pleader suit.” 51.In the instant case, 11th defendant sought a relief against D1 to D8 and no relief sought against the plaintiffs. Admittedly, 11th defendant is not the family 62006 (6) ALT 45 (SC) 24 Fair judgment in O.S.No.152/2014 member of plaintiffs. He is a stranger to the family of plaintiffs. By applying the above principle, the relief sought by the DW1 in the counter claim against the spirit under Order VIII Rule 6-A of CPC and therefore, without any hesitation, I hold that 11th defendant is not entitled for Specific Performance of the agreement of sale against D1 to D8.

52.Be that as it may, Learned Counsel for Defendants 1 to 8 Sri J.R.V.S.V.Sagar also relies upon two decisions i.e.,

1. Saladi Suryanarayana Vs. Evani Suryanarayana Sastry and others 7

2. Dhanraj (Died) per LRs. and others Vs. Saleh 8to establish the preposition that the 11th defendant has to prove his continuous readiness and willingness from the date of the agreement to the date of the decree to get the relief of Specific Performance. In the present case, DW1 in his cross-examination, he admitted that he is an income tax assessee holder and a sufficient balance amount mentioned in the income tax returns for the financial years 2013-2014, 2014-2015.

Admittedly, those documents are not filed before the court in order to prove the financial capacity of DW1. It is a settled principle of law has laid down in the decisions No.7 and 8 that DW1 has to plead not only readiness but also willingness to perform his part of the contract to obtain the registered sale deed in pursuance of obtain Ex.B9. In the present case, there is no positive or satisfactory evidence on the record that DW1 is having a capacity to pay the entire amount as mentioned in

Ex.B9 and viewed from any angle, I hold that 11th defendant is not entitled for the discretionary relief of Specific Performance of the agreement of sale from D1 to D8.

The counter claim filed by 11th defendant is not in accordance with provision under

Order VIII Rule 6-A of CPC and 11th defendant also failed to establish the essential elements under section 16(c) of Specific Relief Act and therefore, 11th defendant is not entitled the relief of Specific Performance of the Agreement of Sale (Ex.B9) and he is also not entitled to recover the amount of Rs.10,00,000/- (Rupees Ten Lakhs only) from D1 to D8. Accordingly, issue No.5 and 7 are answered against 11th defendant.

72020 (3) ALT 528 (TS & AP) 82016 (4) ALD 1 25 Fair judgment in O.S.No.152/2014 53.Issue No.6 :

6. Whether D11 is entitled for Specific Performance of Agreement of Sale against D1 to D8 so far as shares being allotted to D1 to D8 ?

In Issue No.5 and 7, this court observed that the 11th defendant failed to prove the essential elements U/Sec.16(c) of C.P.C and also the counter claim filed by 11th defendant is not in accordance with provision under Order VIII Rule 6-A C.P.C and therefore, 11th defendant is not entitled to obtain the decree from D1 to D8 as being shares allotted to D1 to D8. Thus, 11th defendant is not entitled any relief against D1 to D8 to claim the shares being allotted to them. Accordingly, issue No.6 is answered against 11th defendant.

54.Issue No.4 :

4. Whether the receipt dt:13.02.2013 (Ex.B9) executed by D1 to D3 and D6 in favour of D11 is true, valid and binding on the plaintiffs ?

In the above all the issues, this court observed that 11th defendant failed to prove the contents of Ex.B9 receipt said to have been executed by D1, D2, D3 and

D6 in favour of D11 and counter claim is not maintainable as per law and as such

Ex.B9 receipt dt:13.02.2013 is not binding on the plaintiffs. Accordingly, issue No.4 is answered in favour of plaintiffs and against 11th defendant.

55. Issue No.8 :

8. To what relief ?

In view of the answers in all the issues, this court hold that all the plaintiffs and D9 and D10 are entitled share over the plaint schedule property on par with their brothers.

56.In the result, the suit is decreed and granting a preliminary decree in respect of the plaint schedule property into ten equal shares by meets and bounds. Accordingly, the plaint schedule property is divided into ten equal shares as per good and bad qualities and allotment of 1/10th share to 1st plaintiff, 1/10th share to plaintiffs No.7 and 8 jointly (LRs of 2nd plaintiff), 1/10th share to 3rd plaintiff, 1/10th share to 5th and 6th plaintiffs jointly (LRs of 4th plaintiff), 1/10th share to defendants 9 and 10 each, and accordingly, Preliminary Decree is passed.

26 Fair judgment in O.S.No.152/2014

The plaintiffs has to file a separate application for passing of final decree in terms of the preliminary decree.

The counter claim filed by 11th defendant is dismissed and thereby, 11th defendant is not entitled to recover an amount of Rs.10,00,000/- (Rupees Ten Lakhs only) from D1 to D8.

In view of the relationship between the parties, they are directed to bear their own costs.

Dictated to the Stenographer Gr.III, transcribed and typed by her, corrected and pronounced by me in

open Court, this the 7 th day of April, 2022.

Sd/- N.Srinivasa Rao

IV ADDL.DISTRICT JUDGE,

KAKINADA.

Appendix of Evidence

Witnesses examined

For Plaintiff : For Defendant : P.W.1 : Medisetti Ratna D.W.1 : Natchimuthu Udaya Bhanu D.W.2 : Mallipamula Rambabu D.W.3 : Mudunuri Vijay Bhaskar Raju

Documents marked

For Plaintiff : Ex.A.1:Registration extract of sale deed dated 03.07.1971 for the schedule property stands in the name of late Jogi Raju and others. Ex.A.2:Registration extract of Relinquishment deed dated 22.06.1974 executed by Undavalli Manikyam, Venkata Ramana, Veerabadra Rao, Rangarao, Satyanarayana and others in favour of Late Jogi Raju in respect of plaint schedule property. Ex.A.3:Office copy of the notice dated 11.12.2006 got issued to the D.1, D.2 and D.6 to D.8 and others by the plaintiffs and D.9 and D.10. Ex.A.4:Office copy of the reply notice dated 28.12.2006 for (Ex.A.3 ) got issued D.1, D.2 and D.6 to D.8 and others to by the Plaintiff No.2 and 5 others through their advocate. Ex.A.5:Office copy of Rejoinder dated 29.01.2007 got issued by 1st plaintiff and others in respect of Ex.A.4 notice. Ex.A.6:Office copy of the Reminder notice dated 11.04.2007 got issued by the plaintiffs through their counsel seeking supply of testimonial documents to counsel for defendants. Ex.A.7:Reply dated 04.06.2007 issued by the defendants in pursuant Ex.A.6. Ex.A.8:Eenadu District Edition Paper publication dated 13.03.2007 issued by the plaintiffs 1 to 4, defendant Nos. 9 and 10 through their Advocate. Ex.A.9:Eenadu District Edition Paper publication dated 10.04.2013 issued by the 11th defendant.

27 Fair judgment in O.S.No.152/2014

Ex.A.10:Copy of Death Certificate of Late M. Jogi Raju dated 14.11.1985. Ex.A.11:Office copy of the lawyer notice dated 10.03.2013 issued by 1st plaintiff to Plaintiff Nos. 2 to 4, D.1 to D.8 & others. Ex.A.12:Reply notice dated 28.05.2014 for Ex.A.11. Ex.A.13:Paper publication dated 02.07.2014 got issued by the plaintiff 1 to 4 and defendant Nos.9 and 10 in Eenadu daily newspaper. For Defendant :

Ex.B1: Khararunama dated 06.12.1995 executed by plaintiff Nos.1 to 4, D.9 and D.10 in favour of their brothers. Ex.B2:Reply letter dated 14.04.2013 issued by 1st plaintiff in pursuance of Ex.A.9 paper publication. Ex.B3:Notice dated 15.04.2013 issued by M. Sai Venkata Ramana in pursuance of Ex.A.9 paper publication. Ex.B4:Office copy of the notice dated 01.05.2013 got issued by D.11 to defendant Nos. 1, 2, 3 and 6. Ex.B5:Reply dated 10.05.2013 in pursuance of Ex.B.4. Ex.B6:Rejoinder dated 06.06.2013 got issued by D.11 to defendants 1, 2, 3 and 6. Ex.B7:Reply notice dated 24.07.2018 in pursuance of Ex.B.6. Ex.B8:Office copy of the lawyer notice dated 10.03.2013 issued by 1st plaintiff to Plaintiff Nos. 2 to 4, D.1 to D.8 & others. Ex.B9:Receipt dated 13.02.2013 executed by D.1, D.2, D.3 and D.6 in favour of D.11. Ex.B10:Unregistered Will dated 20-2-1981 executed by Mallipamula Jogiraju in favour of Defendant No.1, 2, Ramnuja Lakshmana Raju, Satya Veerabadra Rao. Ex.B11:Registration extract of Relinquishment deed dated 22.06.1974 executed by Undavalli Manikyam, Venkata Ramana, Veerabadra Rao, Rangarao, Satyanarayana and others in favour of Late Jogi Raju in respect of plaint schedule property. Ex.B12:Letter addressed by the Municipal Corporation to defendant No.5,

dated 31-10-2019 under the provisions of Right to Information Act

seeking information. Ex.B13:Letter addressed by the Municipal Corporation to defendant No.5,

dated 21-1-2020 under the provisions of Right to Information Act

seeking information. Ex.B14:Letter addressed by the Municipal Corporation to defendant No.5,

dated 11-3-2020 under the provisions of Right to Information Act

seeking information.

28 Fair judgment in O.S.No.152/2014

Ex.B15:Andhra Bank Pass Book Account No.89/2 of M/s. Manikya Diesel House. Ex.B16:Tax Receipt, dated 25-10-1999 stands in the name of Defendant No.1,3,5 and 6 relating to plaint schedule property. Ex.B17:Demand Notice dated 7-2-1987 relating to plaint schedule property issued in the name of M.Veera Bhadra Rao by Commissioner, Municipality, Kakinada.

Sd/- N.Srinivasa Rao

IV ADJ/KKD // t.c.f.b.o //

Sr.Superintendent

IN THE COURT OF THE III ADDITIONAL SESSIONS JUDGE

EAST GODAVARI AT KAKINADA

Present:-Sri.N.Srinivasa Rao, IV Additional Sessions Judge FAC/III Additional District Judge, Kakinada

Wednesday, this the 12th day of January, 2022

CRIMINAL APPEAL No.343 of 2018

From what court the appeal is : I Additional Assistant Sessions Judge, preferred Kakinada.

Number of the case in that Court : S.C.No.249 of 2015

Number of the Appeal : C.A.No.343 of 2018

Name and description of the : Kanithi Veerababu S/o.Narasimha Rao, Appellant/s 35 years, Caste:Nayi Brahmin, Door No.8-5-36, Near Neelamma Temple, Sangeetharaopeta, Samalkota, East Godavari District.

Name and description of the : State: Represented by Inspector of respondent Police, Peddapuram Circle.

The sentence and order under : In the result, the accused is found which it was imposed in the lower guilty for the charge under Sec.376 of Court. I.P.C. and accordingly, he is convicted under Sec.235(2) Cr.P.C and sentenced to undergo Rigorous Imprisonment for a period of Seven (7) years and also sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) in default to suffer simple imprisonment for six (6) months for the charge under Sec.376 of I.P.C. The accused has informed about his right to appeal and legal aid. The accused is aged 38 years. The remand period of accused i.e., from 05.12.2012 to 07.03.2013 (93 days) is set off under section 428 of Cr.P.C. M.O.s 1 to 6, White and Snuff Saree, Yellow coloured Petty coat, White and Green Saree, Snuff coloured T-Shirt, T-Shirt and Lungi shall be destroyed after lapse of appeal time. Whether confirmed/modified or Reversed, if modified the CONFIRMED modification

Date of presentation : 15-10-2018

Date of filing : 22-10-2018 Notice issued by Court to appear : 25-10-2018 Bail bonds if appellant has been : …. let out on bail

Appellant ordered to appear : 18-12-2018 Date of hearing : 07-01-2022 Date of Judgment : 12-01-2022 2

This criminal appeal is coming on 07-01-2022 for final hearing before me in the presence of Sri.P.Sekhar, Advocate for Appellant and Additional Public Prosecutor for prosecution and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This appeal is filed under Sec.374(3) of Cr.P.C by the appellant/ accused in S.C.No.249/2015 on the file of I Additional Assistant Sessions

Judge, Kakinada challenging the calendar and judgment dated 11-09-2017

wherein and where under the accused was convicted for offences under

Sec.376 of I.P.C.

2. For the sake of convenience, the appellant hereinafter is referred to as accused as he is arrayed in S.C.No.249/2015.

3. The brief facts which are leading to the filing of the present appeal are as follows:-

a) Before the IV Additional Judicial Magistrate of First Class, Kakinada filed charge sheet against the accused for the offence punishable under

Secs.376 of I.P.C. relating to Cr.No.265/2012 of Samalkota Police station.

b) The case of the prosecution, in brief, is as follows:

c) The victim women/Bugatha Polamma/L.W.1 is residing alone since four years in the room shed constructed with cement brick walls and asbestos sheet roof near Neelamma Temple, resident of Sangeetharaopeta,

Samalkota. The husband of L.W.1 died about 35 years back. On 28-11-2012 night after taking food, victim woman/L.W.1 slept alone on a plastic tape cot made up of wood. She did not put inner side latch of front door way as the hole of cement wall was damaged. At about 1-30 a.m on 28/29-11-2012 the accused who is resident of nearby tiled house at a distance of 150 yards and known person to her, entered into the room through front door way, shut her mouth, firmly laid upon her, torn her wearing cold seasons banian, lifted her wearing sari, langa/petty coat up and committed rape on her forcibly against her will and without her consent. While committing rape, when he removed his 3 hand from her mount, the victim woman raised cries “Chachipothunnanu

Baboi-Nannu Champestunnadu Baboi” and so raising cries, she tried her best to escape from him but accused did not allow her and did not stop doing sexual intercourse with her.

d) On hearing cries, Kocherapu Subba Lakshmi/P.W.2 resident of rear side tiled house, rushed there and noticed him laid upon the victim woman/L.W.1 and committing rape on her and on seeing the same, she chided the accused loudly to woke up from victim woman/L.W.1. On which, the accused woke up from the victim woman. On hearing cries, Bugatha

Veerabhadra Rao/P.W.1 his wife Bughatha Lakshmi/P.W.2 neighbours Kota

Vishnu/P.W.3, and his wife Kota Satyavathi/L.W.6 and Bonu Sitayamma/P.W.9 residents of Southern side tiled house bearing No.8-5-40 and Yandamuru

Bhaskara Rao/L.W.8 and Manoju Atchutamba/L.W.9 rushed there. On seeing them accused escaped from there. As the victim woman is aged about 85 years old, accused raped her brutally by using force, her vagina might have ruptured and her wearing sari and petty coat/Langa were stained with blood.

On knowing the same, Bugatha Apparao/L.W.10 came to the place of offence and shifted the victim woman accompanied by P.Ws.1 and 2 to Samalkota

Police where she presented a report.

4. On the strength of report of victim woman/L.W.1 a case in Crime

No.265/2012 for the offence under Sec.376 of I.P.C. was registered by

M.D.M.R.Ali Khan/L.W.17 and investigated into.

5. During course of investigation, Inspector of Police/P.W.7 visited the scene of offence at about 12.00 noon, secured photographer Taki Srinivas / L.W.12, mediators/P.W.4 and Nanduri Veera Nagendra Vara laxmi

Prasadarao/L.W.14 and examined the scene of offence in their presence, prepared rough sketch, got photographed the scene of offence, drafted observation report (Ex.P2) by mediators/P.W.4 and Nanduri Veera Nagendra

Vara laxmi Prasadarao/L.W.14, seized two blood stained sarees, one blood 4 stained inner langa, one cold seasonal banian of victim woman, House tax demand notice issued by Samalkota Municipality, current bill, pertaining to the said scene of offence under the cover of Ex.P2 scene observation report.

6. The inspector of police/P.W.7 recorded the statements of P.W.1,

L.W.4/Bugatha Lakshmi, P.W.3, Kota Satyavathi/L.W.6, P.W.9, Yandamuru

Bhaskara Rao/L.W.8, Manoju Atchutamba/L.W.9, Bugatha Appa Rao/L.W.10,

Vedurupaka Brajmaji/L.W.11, Taki Srinivas/L.W.12. The victim woman was sent to Government Hospital, Samalkota for medical examination.

7. On 4.12.2012 at 3-00 p.m. the Inspector of Police/P.W.7 arrested the accused underneath of fly over bridge in the presence of mediators/P.W.4 and

Nanduri Veera Nagendra Vara Lakshmi Prasada Rao/L.W.14 at which, the accused voluntarily confessed the offence. The confessional statement of accused was reduced into writing by mediators/P.W.4 and Nanduri Veera

Nagendra Vara Lakshmi Prasada Rao/L.W.14, P.W.7 seized one T-Shirt stained with blood water at bottom border and one cotton Lungi stained with blood water from the accused under cover of same mediators report and sent the accused for judicial remand.

8. P.W.5/Dr.K.Lakshmi, Medical officer, Government Hospital, Samalkota who examined the victim woman preserved vaginal swabs etc., and forwarded to Regional Forensic Science Laboratory, Vijayawada for analysis and issued wound certificate. After receipt of chemical analysis report, she issued final opinion that the clinical findings are suggestive of rape. Dr.B.Ramesh/P.W.8

Associate Professor, King George Hospital, Visakhapatnam who examined the accused, conducted potency test, issued certificate stating that ‘normal external genitalia clinically and as per history patient/accused is potent”.

Hence, the charge.

9. The learned IV Additional Judicial Magistrate of First Class, Kakinada took cognizance of the offence against the sole accused which is punishable

U/s.376 I.P.C. and registered the case as P.R.C.No.20/2013.

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10. After appearance of accused before the learned Magistrate, he was furnished with the copies of documents relied by the prosecution in compliance of Sec.207 Cr.P.C.

11. As the offence U/s.376 I.P.C. is exclusively trialable by the Court of

Sessions, the learned Magistrate has committed the case U/s.209 Cr.P.C to

the Court of Sessions, East Godavari Division, Rajamahendravaram vide committal order dt.28-08-2014.

12. The learned Sessions Judge, East Godavari at Rajamendravaram after receipt of the record from the learned Magistrate registered the case as

S.C.No.249/2015 and made over to the I Additional Assistant Sessions Judge’s

Court, Kakinada for disposal in accordance with law.

13. The learned I Additional Assistant Sessions Judge, Kakinada after appearance of accused and after consideration, framed the charge U/s.376

I.P.C. against the accused, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

14. During the course of trial, the prosecution examined P.Ws.1 to 9 and exhibited Exs.P.1 to P.11 and marked M.Os.1 to 6.

15. The accused denied the incriminating material available in the evidence of prosecution witnesses when he was examined U/s 313 Cr.P.C. No oral evidence is adduced by him and no documents are marked on his behalf.

16. The trial court after evaluating the oral and documentary evidence placed by the prosecution and after considering the defence of the accused, found the accused guilty for the offence under Sec.376 of IPC and convicted the accused and sentenced to undergo Rigorous Imprisonment for a period of Seven (7) years and also sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) in default to suffer simple imprisonment for six (6) months for the charge under Sec.376 of I.P.C.

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17. Challenging the impugned judgment of the trial court, the appellant/accused preferred this appeal on the following grounds:

a)The judgment passed by the lower court is contrary to law, weight of evidence and probabilities of the case.

b)The lower court ought to have observed that there is no corroboration to the evidence of P.W.1.

c)The lower court ought to have seen that the prosecution failed to prove its case. There are contradictions in between the evidences of prosecution side witnesses and the lower court failed to consider the same.

d)The lower court ought to have observed that P.W.2 deposed that she did not identify the accused when he came out from the house. She deposed that she does not know what happened in the room. P.W.3 also deposed that he does not know what happened in the house of victim woman.

e)The lower court ought to have observed that evidences of P.W.1 to

P.W.3 and 9 are not corroborating with that each other.

f)The lower court ought to have observed that P.W.4 is mediator and he is V.R.O of Samalkota. He deposed that police called him along with another V.R.O and he is interested witness to the prosecution.

g)The lower court ought to have observed that P.W.2,3 and 9 are relatives of P.W.1 and they are interested witnesses to the prosecution.

h)The lower court ought to have seen that the evidences of P.W.4 and 7 are not believable under law. Ex.P.8 rough sketch is not prepared correctly.

i)The lower court ought to have observed that the age of victim woman is aged 85 years. The prosecution witnesses deposed that the victim was not examined by the prosecution. The lower court failed to consider the same.

j)The lower court ought to have observed that the enemies of accused might have implicated the appellant in this case. The appellant ought to have been acquitted.

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18. In view of the above grounds the Appellant / Accused urged before this court to set aside the calendar and Judgment dated 11-09-2017 passed by the

I Additional Assistant Sessions Judge, Kakinada in S.C.No.249 of 2015 by acquitting the Appellant / Accused for the offences under section 376 of I.P.C.

19. I have heard arguments of learned counsel for the Appellant and learned

Additional Public Prosecutor for Respondent.

20. Learned Additional Public Prosecutor argued that the trial Court has properly evaluated the material placed before it and rightly convicted for the offence with which he is charged and there are no merits in this appeal and so the appeal may be dismissed.

21. Given, the appeal grounds and contentions of the both counsels, the points for determination are:

1. Whether, the prosecution has established the guilt against the Appellant / Accused beyond all reasonable doubts?

2. Whether, the finding of the trial court needs any interference?

POINT No: 1:

22. In order to prove its case, in the trial court, the prosecution examined

PW1 to PW9 and got marked Ex’s. P.1 to P.11 and M.O.1 to M.O.6 are marked. P.W.1 is the son of the victim, P.W.2, P.W.3 and P.W.9 are the neighbours, P.W.4 is the mediator, P.W.5 and P.W.8 are the medical officers and P.W.6 and P.W.7 are investigation officers. Ex.P1 is the report given by

L.W.1., Ex.P2 is the scene observation report, Ex.P3 is the relevant portion marked in mediators report, Ex.P4 is the wound certificate of Victim, Ex.P5 is the R.F.S.L. Report, Ex.P6 is the final opinion, Ex.P7 is the original F.I.R. in

Cr.No.265/2012 of S.H.O. Samalkota, Ex.P8 is the rough sketch of the scene of offence, Ex.P9 is the letter of advice, Ex.P10 is the medical outpatient slip and Ex.P11 is the police requisition.

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23. It is the evidence of PW1 who is the son of the victim is that, on 28.11.2012 himself and his wife slept in the house at about 1.00 a.m. in the mid night, they heard cries of his mother from her house. Immediately they came out from their house and went to the house of his mother, his mother and Subbalakshmi were present at the house of his mother. His mother weeping and on enquiry told him that the accused committed rape on her and ran away.

24. It is the evidence of PW2 is that, the victim is residing in a tin roofed shed and she was died about three years back. By the time of incident she was aged about 80 years. The house of the victim is situated in between the houses of PW1 and LW7 Bonu Sitayamma. A wall separated the house of the victim from her house. Victim was aged about 80 years. About four years

back, while she was slept in her house at 2.00 mid-night, she heard

the cries of victim woman and rushed to her house and found the

accused lying on the victim. On seeing the incident, she raised cries

and on hearing her cries, the accused got up and ran away.

25. It is the evidence of PW3 is that about four years back at about 8.30 p.m. himself and his wife slept in their house. On that day during mid night,

PW2 tapped the door of his house, they woke up and opened the door. PW2 stated that the accused molestering the victim woman. They both PW2 and

PW3 went to the house of victim and they found the accused running from the house of victim woman. They could identify the accused with illumination of lighting and lights were there in the house of victim and also outside of the house.

26. During cross examination by learned Additional Public Prosecutor, PW1 admitted that he enquired about the incident from Subbalakshmi, she stated that the accused committed rape against his mother and he witnessed the accused at the house of his mother and running and the accused wore half hands polyster T shirt and cotton lungi. Thus, it is clear that PW1 witnessed the accused while running from the scene of offence.

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27. PW2 in her cross examination she deposed that when she reached to the house of victim woman, it was dark. She did not identify the accused while he was present over the victim woman, but they could identify the accused when he came out from the house. During cross-examination of PW3 also it was elicited that when he went to the house of victim woman, the accused is already left. He volunteers that the accused is running.

28. PW9 who is another eye witness examined as PW9 deposed that herself and her husband were sleeping in the house, at about 1.00 mid night, they heard the cries. After hearing the cries, immediately they came out, but that time she witnessed that PW2 Subbalakshmi and PW3 Vishnu standing in front of her house and also the accused covering his lungi and ran away from the tin shed of the victim woman/LW1. Thus, when PW9 reached to the scene of offence, already PW2 Subbalakshmi and PW3 Vishnu were standing infront of her house. PW2 also categorically deposed that after hearing the cries, she immediately went to the house of victim and later PW3 came to the scene of offence.

29. It is the evidence of PW5/ Dr.K.Lakshmi, Medical Officer who gave treatment to the victim woman on 29.11.2012, according to her, the victim aged about 85 years and found the following external injuries.

1. An abrasion of 1.c.m. length on right labia minura.

2. Small tear of 1/4th c.m. of fourchatte active bleeding.

3. Tear of the posterior vaginal wall could not be visualized as there is a profuse vaginal bleeding and the victim is irreteble and not cooperating.

She issued wound certificate and final opinion. Ex.P4 is the wound certificate, Ex.P5 is the R.F.S.L. Report and Ex.P6 is the final opinion. The evidence of PW5 coupled with Ex.P4 to P6 it is evident that PW5 opined that there is suggestive of rape.

29. It is the evidence of PW8 /Dr.B.Ramesh is the medical officer who treated the accused on 02.01.2013, he found that the accused is having 10 normal secondary sexual character and also normal genitalia. He found that accused is potent and to that effect he issued medical certificate.

30. It is the evidence of PW4 / Mummidi Venkateswara Rao who acted as a mediator, according to him, on 29.11.2012 he accompanied to the police to the scene of offence and in his presence police recovered M.O.1 to M.O.4 and he prepared scene observation report under Ex.P2.

31. PW6 who is the one of the investigating officer deposed that he received

Ex.P1 report on 29.11.2012 at 10.30 a.m., and basing on the same is registered a case in Cr.No.265/2012 under section 376 I.P.C. and issued Ex.P7

F.I.R. and further investigation was done by PW7 / Inspector of Police and he went to the scene of offence recorded the statements of witnesses. He recovered M.O.1 to 4 from the scene of offence and later he sent the victim woman to the Government General Hospital for medical examination. He prepared Ex.P8 rough sketch and photographed the scene of offence.

32.In view of the rival contentions, I have more carefully and thoroughly perused the record. The submissions of learned Counsel for the Appellant /Accused and on the submissions of learned Additional Public Prosecutor for the State have heard and considered. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.

32. In order to decide the present case, it is pertinent to discuss the

legal provisions i.e., Section 376 I.P.C. under which the Appellant /

Accused has been convicted.

Section 375 in The Indian Penal Code.

375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:— (First) — Against her will. (Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

11 (Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Punishment for Rape is mentioned in Section 376 I.P.C.

33. Let us now appreciate the evidence available on record in the light of the aforesaid legal provisions.

I have very carefully and vigilantly considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint.

On careful verification of the evidence recorded by the trial court, the evidence of P.Ws.1 to 3 and P.Ws.9 coupled with the documentary evidence under Exs.P1 to 11 and M.O.1 to M.O.6 are consistent, cogent and convincing to show that at relevant time, the Appellant / Accused committed rape on the victim. All the material witnesses were cross examined for accused but nothing was elicited to doubt the evidence on record against

Appellant / Accused.

The evidence of PW.1 to 3 and PW.9 even after cross examination appearing to be true and believable. Further their evidence is corroborating with each other and also corroborated the evidence of PW5 / Medical Officer and Ex.P4 to P6 and it shows that the victim woman sustained injuries on her private parts and in her cross examination also she deposed that there is no possibility to sustain the injuries if a person fell down on a hard surface.

The counsel for the appellant / accused argued that the victim is not examined anywhere and due to lacking of her statement, the trial court 12 erroneously convicted the accused and not examination of victim is hit the case and as such the appellant / accused is liable for acquittal.

The trial court relied upon a decision in “State of Karnataka Vs.

Mahabaleswar Gourya Naik” reported in 1992 CRL.L.J.3786 (SC) wherein at

Para No.15, his Lordship held that “merely because a victim is dead and consequently could not be examined can never be ground to acquit an accused if there is evidence otherwise available proving the criminal act of the accused concerned.”

The cited case facts are the accused wrongfully restrained the victim girl and committed suicide and she informed the incident to witnesses. Later the victim was not examined by the prosecution.

In the present case also, after the incident, on hearing the cries, PWs 1 to 3 and 9 went there and victim informed about the rate committed by the accused on her.

34. Be that as it may, the evidence of PW1 to 9 inspires confidence to prove the accusation against the Appellant / Accused. Having carefully gone through the evidence of PW1 to 9 and contents of Ex.P1 to P111 coupled with M.O.1 to 6 shows specific incidents to prove the offence under section 376 I.P.C. and their evidence is unshaken even after lengthy cross examination. Therefore, the prosecution successfully proved the guilt against the accused beyond all reasonable doubt and accordingly point No.1 answered negative to the

Appellant.

POINT NO.2:

35. In view of the answer in Point No.1, I hold that I do not find any material irregularity or perversity in the impugned Judgment and there is no valid legal reasons to interfere well reasoned Judgment of the trial court.

Accordingly point is answered.

36. In the result, appeal is dismissed by confirming the Judgment of the trial court dt:11-09-2017 in S.C.No.249 of 2015 on the file of I Additional 13

Assistant Sessions Judge, Kakinada. The property order with regard to M.O.1 to 6 passed by the trial court holds good after expiry of appeal time and unmarked property if any shall be destroyed after expiry of appeal time.

Typed to my dictation, corrected and pronounced by me in the open court on this the 12th day of January, 2022.

Sd/- N. Srinivasa Rao,

IV ADDL. SESSIONS JUDGE,

(FAC) III ADDL. SESSIONS JUDGE,

KAKINADA.

APPENDIX OF EVIDENCE

No oral or documentary evidence is adduced on either side.

Sd/- N. Srinivasa Rao,

IV A.S.J.

(FAC) III A.S.J.

1) Copy to the Registrar (Vigilance) High Court of A.P, Amaravathi.

2) Copy to the Prl. District Court, Rajamahendravaram.

3) Copy to the I Additional Assistant Sessions Judge, Kakinada

4) Copy to IV Additional Judicial Magistrate of First Class, Kakinada.

//true copy//

Chief Administrative Officer, III Addl. District Judge’s Court,

KAKINADA.

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IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE

EAST GODAVARI AT KAKINADA

Present:-SRI N.SRINIVASA RAO IV Additional District Judge, Kakinada

Monday, the 4th day of April, 2022

APPEAL SUIT No.10/2016

Between

Chittarvu Lakshmi Narasimha Rao, S/o.Seshagiri Rao ….Appellant/plaintif

And

Siddha Veera Venkata Satyanarayana …Respondent/defendant.

This appeal is preferred against the judgment and decree dated 30.11.2015 passed by in O.S.No.370/2011 on the file of I Additional Senior Civil Judge Court, Kakinada.

Between

Chittarvu Lakshmi Narasimha Rao, S/o.Seshagiri Rao ….Plaintif

And

Siddha Veera Venkata Satyanarayana …Defendant.

This appeal coming on 01-4-2022 for hearing before me in the presence of Sri.Vemuri Chandra Mouli, advocate for appellant and of Sri. , advocate for respondent and the matter having stood over till this day for consideration, this court delivered the following:-

JUDGMENT

Unsuccessful plaintif has preferred this appeal under Order 41 Rules 1 and 2 read with Sec.90 of Code of Civil Procedure challenging the impugned judgment and decree dated 30.11.2015 in O.S.No.370/2011 passed by I Additional Senior Civil

Judge, Kakinada wherein, and whereunder suit filed by plaintif seeking relief of

permanent injunction was dismissed.

2.For the sake of convenience, the names of parties are referred in the plaint.

3.Case of the plaintif, briefly, as narrated in the averments as mentioned thus:-

4.Plaintif seeks relief of permanent injunction against the defendant in respect of plaint schedule property bearing Door No.1-132 constructed within 2 403.75 Sq.Yds. Plot No.8 of L.P.No.97/88 which is located in Ramanayyapeta Gram

Panchayat, Kakinada.

5.Plaintif is absolute owner of plaint schedule property. Plaintif purchased the plaint schedule property under registered sale deed dated 30.5.1988 from Nidadavolu Sarojini under document No.2681/1988. Since 1988 plaintif is in peaceful possession and enjoyment of the schedule property with absolute rights and possession. Plaintif got constructed RCC roofed building in the schedule Plot

No.8 in 1994. The Gram Panchayat, Ramanayyapeta allotted door number and collecting taxes. Plaintif leased out the schedule premises to tenants and temporarily residing at Hyderabad since four years for the purpose of his children education. Plaintif is a strong believer of “Vasthu”. As per the advise of “Vasthu” experts, he raised walls leaving some site towards South and North as shown ABC (South) A1, B1, C1 (North) as mentioned in plaint plan. Plaintif laid fencing long back for the site left towards North of plaint schedule property (A1, B1, C1) when the boundary owner intended to make constructions in the property. Southern boundary is a vacant site. He did not choose to lay fencing in the site shown as “ABC” left for ‘Vasthu’ purpose. The site left for ‘Vasthu’ purpose is part and parcel of registered sale deed dated 30.5.1988.

6.Recently, defendant purchased Plot No.7 on 1-12-2010 which is vacant site located towards Southern side of plaint schedule property. Defendant is aware of plaintifs right, title, possession and enjoyment over plaint schedule property.

Defendant having eye over plaint schedule property is plotting to grab the property in one way or the other with the help of his henchmen. Defendant unnecessarily picked up quarrels and demanded to sell away the schedule property to him pointing that plaintif is staying at Hyderabad. On the same day, in the evening, defendant along with his henchmen came to plaint schedule property and openly proclaimed that he will dispossess the plaintif from the schedule property or its part (area left for “Vasthu”). Indeed, defendant is not having any manner of right whatsoever, over the plaint schedule property. Hence, plaintif constrained to file the present suit.

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7.Sole defendant filed a detailed written statement and denied all the material allegations in the plaint and plaintif strictly prove the same.

8.Sum and substance of the case of written statement as mentioned thus:

9.Plaintif is not the owner of the property as claimed in the plaint plan.

Plaint plan is absolutely incorrect. Plaint plan copy is not served on this defendant.

Plaintif is never in possession and enjoyment of the plaint schedule property as claimed in the plaint plan or plaint schedule. Plaintif is claiming more extent than what was mentioned in the registered sale deed stands in the name of plaintif.

Plaintif claimed that he purchased the property from Nidadavolu Sarojini with specific measurements. Plaintif did not produce the alleged layout plan before the court. If the layout plan is produced before the court, it would be clear that plaintif is claiming more extent of site than what he is entitled. The vendor of plaintif has no right, title or interest in “ABC” marked portion or “A1 B1 C1” measurements in the plaint plan. Plaintif claiming the property as per Vasthu. Nobody will leave any site on the Southern side of the property. “ABC” marked property in the plaint plan is absolute property of defendant.

10.One Peri Srinivasa Jagannadha Sarma purchased vacant site by measuring 409 Sq. Yds. with specific measurements under registered sale deed

dated 30.4.1992. In the sale deed, it was mentioned the property with specific

measurements:

East: 47 ft. 6 inches Saheb’s property West: 47 ft. 6 inches Road South: Palika Durgayya’s Property 77 ft. 6 inches North: Nidadavolu Sarojini’s property 77 ft. 6 inches.

11.The said Peri Srinivasa Jagannadha Sarma purchased the property from

Nandivada Gayatri. Nandivada Gayatri purchased the property under registered sale deed dated 22-07-1980 from Palika Veeranna and others. The said Nandivada

Gayatri purchased an extent of Ac.0.10cents within the following boundaries.

East: Saheb’s land South: Palika Durgayya’s Land West: Passage North: Nidadavolu Sarojini’s land.

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12.The said Peri Srinivasa Jagannadha Sarma executed Power of Attorney in favour of Srinivasa Aruna Prapulla. Peri Srinivasa Jagannadha Sarma sold the property to the defendant under registered sale deed dated 1-12-2010. The defendant is in peaceful possession and enjoyment of 409 Sq. Yds. with specific measurements and enjoying the vacant site. Defendant and his vendors are in peaceful possession and enjoyment of the property since 1980.

13.Indeed, plaintif is claiming site of defendant as part of his property.

Defendant paid challan to the Government for survey of the land on 27.10.2010

before purchasing the property. Defendant wanted to measure the land and plaintif

raised objection. Plaintif is aware that if the property is measured, it will be clear that plaintif claiming property more than what he is entitled to. Defendant from the beginning insisting for measurement of the property as per documents and as per layout. Plaintif is not co-operating for measurements of the property. Plaintif intentionally has been filed civil suit with false allegations as if defendant is interfering with the alleged possession of the property. Plaintif came to the court with false allegations. Defendant is always ready and willing to get the property measured so that property can be identified as per layout plan and it will clear the dispute between the parties. Plaintif is not co-operating for measurement of the property. Defendant never interfered with the alleged possession of “ABC” marked portion in the plaint plan. Defendant urged before the court to dismiss the suit with costs.

14.On the strength of above pleadings, the following issues are framed for settlement and trial.

1) Whether the plaintif is having title and possession in respect of plaint schedule property?

2) Whether the plaint plan filed by the plaintif is correct?

3) Whether the ABC portion of the plaint plan forms part of the defendant’s plot covered by sale dated 01-12-2010?

4) Whether the plaintif is entitled for permanent injunction as prayed for?

5) To what relief?

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15.At the trial, plaintif Chittarvu Lakshmi Narasimha Rao alone is examined as P.W.1 and Ex.A1 to A3 are exhibited.

16.On the other hand, defendant Sidda Veera Venkata Satyanarayana alone is examined as D.W.1 and Ex.B1 to B3 documents are exhibited.

17.Trial court has considered the evidence of P.Ws.1 and D.W.1 and documents relied upon by both counsel and answered the issue Nos.1 to 3 against the plaintif and eventually other issues are also answered against the plaintif and dismissed the suit on 30.11.2015.

18.Feeling aggrieved, unsuccessful plaintif has preferred the present appeal challenging the impugned judgment and decree in O.S.No.370/2011 passed by I Additional Senior Civil Judge Court, Kakinada.

19.Appellant/plaintif raised the following grounds in the grounds of appeal.

a) The trial Court ought to have seen the layout plan which annexed to the sale deed marked as Ex.B.3 on behalf of respondent/defendant. But respondent/defendant did not state anything about the layout plan and simply he got marked his documents.

b) The trial Court ought to have taken into consideration the admissions made by respondent/defendant examined as D.W.1 with regard to possession of appellant/petitioner over the disputed schedule property. Even D.W.1 admitted that even after notice of encroachment he did not issue any notice to the plaintif about the encroachment and he did not issue any notice to the plaintif before filing the suit for possession alleging that the plaintif encroached the site of D.W.1.

c) The trial court ought to have considered the fact elicited in the cross examination of P.W.1 by the counsel for respondent/defendant herein about filing of suit in O.S.No.66/2012 on the file of II Addl. Junior Civil Judge's Court, Kakinada by the respondent/defendant herein for possession with regard to disputed schedule property. The respondent/defendant intentionally did not file any material papers

before the trial Court and intentionally suppressed the fact of filing the suit for

possession, that itself shows that when once the respondent/defendant filed suit for possession, it is proved that the appellant/plaintif is in possession of the disputed schedule property. So, the trial Court utterly committed error in considering the said facts.

d) The trial Court erroneously came to conclusion and drew a plan on its own in Page No.7 of the judgment and basing on that plan, trial Court not believed the 6 plan attached to the plaint. In fact, the plan which is annexed to the plaint is true and correct.

e) The trial Court mis-read the cross examination of P.W.1 and wrongly came to conclusion that there is no vacant site beyond the compound wall of appellant/plaintif. In fact, there is vacant site beyond the compound wall of appellant/plaintif, which is shown as A1, B1, C1 and also A,B,C in the plaint plan.

f) The trial Court ought to have considered Ex A.1, which belongs to the year of 1988 and also ought to have considered that appellant/plaintif has been in possession and enjoyment of the plaint schedule property since 1988 itself.

g) The trial Court while delivering the judgment erroneously observed that there is no document to show that the appellant/plaintif has left the site beyond the compound wall i.e A,B,C marked portion and A1, B1, C1 marked portion of plaint plan, which itself is a part and parcel of plaint schedule property. The entire plaint schedule property belongs to the appellant/plaintif and the appellant/plaintif left the above said site as per VASTU beyond the compound wall. Therefore, the question of separate document for A,B,C marked portion and A1, B1, C1 marked portion of plaint plan does not arise, as the same is left for the sake of VASTU.

h) The trial Court erroneously held that none has been examined to substantiate the fact that appellant/plaintif was advised to leave the site on the Southern side of compound wall of the appellant/plaintif to observe VASTU. It is quite normal and traditional that south-east corner and also north-west corner will always be left vacant as per VASTU and herein the case of the appellant/plaintif, the A,B,C marked portion and A1, B1, C1 marked portion of plaint plan is left vacant as per the VASTU, which is part and parcel of the plaint schedule property.

20.I have heard the arguments of learned counsel for the appellant.

21.As can be seen from the docket order, the matter is pertaining to the year 2016 and identified. This court has been granted sufficient time to the respondent to advance his arguments but no one is appeared on behalf of respondent. Therefore, this court has considered the contentions of appellant counsel and perusing the material on record i.e. written statement and evidence of defendant and pronouncing the judgment.

22.Having considered the contentions of appellant counsel and on perusing the material on record, the following points arises for determination of the appeal.

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1) Whether ABC portion of plaint plan is part and parcel of Ex.A1 sale deed

dated 30.5.1988?

2) Whether plaintif/appellant could able to establish that ABC portion of the plaint plan is in possession and enjoyment of plaintif on the date of filing of suit?

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

4) Whether the judgment of the trial court needs any interference?

23.It is not in dispute that respondent/defendant has filed a separate civil suit in O.S.No.66/2012 on the file of II Additional Junior Civil Judge, Kakinada for declaration of title over the schedule property and recovery of possession. The appellant severely resisted the suit. The court at first instance dismissed the suit on 04-01-2017. Feeling aggrieved, unsuccessful plaintif in the suit has preferred appeal No.68/2017. It is also not in dispute that appellant in the above appeal has not appeared before the court and appeal is dismissed for default.

24.The appellant counsel at the time of arguments filed an application under Order 41 Rules 27, 33 r/w.Sec.151 of Code of Civil Procedure in

I.A.No.204/2022 and urged before the court to receive the served copy of decree and judgment in O.S.No.66/2012 passed by II Additional Junior Civil Judge Court,

Kakinada. In order to consider the cases of both parties, the petition is allowed on the ground that the parties in both the suits are one and the same.

25.Point Nos.1 and 2:- During trial, plaintif Ch.Lakshmi Narasimha Rao alone is examined as P.W.1 and Ex.A1 to A3 documents got marked.

26.On the other hand, sole defendant S.V.V.Satyanarayana alone is examined as D.W.1 and Ex.B1 to B3 documents got marked.

27.In the present case, there is no dispute relating to the title, right or interest over the properties of plaintif and defendant. Plaintif purchased the suit schedule property under Ex.A1/registered sale deed and whereas, defendant purchased the schedule property i.e. Plot No.7 under Ex.B3 sale deed. It is also not in dispute that the defendant plot is located on the Southern side of plaint schedule plot i.e. Plot No.8.

28.It is the case of plaintif/appellant is that he purchased the schedule property i.e. Plot No.8 admeasuring 403.75 Sq.Yds. and as per Vasthu, he left “A1, 8

B1, C1” site on the Northern side, “ABC” site on the Southern side as mentioned in the plaint plan. The main dispute in between plaintif and defendant with regard to the site left on the Southern side boundary as depicted in “ABC”.

29.Learned counsel for the appellant strenuously contended that the respondent has been filed Civil Suit for declaration of title and recovery of possession and the suit was dismissed. He further argued that the respondent/defendant failed to prove his title over the property and the encroachment of the plaintif. Therefore, the dismissal of the suit itself, prove the case of plaintif in the suit. As I already stated that I.A.No.204/2022 is filed and the court received the judgment and decree in O.S.No.66/2012 for right conclusion of the case.

30.The crux of the point for consideration is, whether the ABC site as left by the plaintif to the Southern side of his plot is part and parcel of Ex.A1/registered sale deed.

31.In order to answer the above point, it is apt to verify the measurements mentioned in Ex.A1 document and cross-examination of P.W.1.

32.It is also not in dispute that the defendant in the trial court has filed an application for appointment of an advocate-commissioner in I.A.No.409/2011 and the advocate-commissioner visited the suit schedule property and prepared a detailed report. It is settled principle of law is that Commissioner report is part and parcel of the case and the contents of the report can be taken into consideration.

33.The evidence of P.W.1, schedule and comparing the measurements in

Ex.A1 document it shows the following boundaries.

East: Site of Revu Nirmalatha Plot No.11. West: Road 33 ft. North: Site of Vedula Subbalakshmi Plot No.9 South: Site of Nandivada Gayatri Plot No.7

34.Admittedly, plaintif purchased Ex.A1 plot in approved layout plan and during trial, the approved layout plan is not produced by plaintif in order to prove the crucial aspect that “ABC” site left by plaintif on Southern side is part and parcel of Ex.A1. In commissioner report, the Advocate Commissioner categorically stated that “I could not fix Southern side point of the vacant site. The Hon’ble Court 9 directed me to measure the property as per documents of both parties and layout plan. For that there is no survey stone or any fixed point for taking measurement.

Hence, I executed the warrant in part for obtaining necessary direction from the court since I cannot fix the point without help of surveyor. I also prepared rough plan and also shown the measurements”.

35.Plaintif also present at the time of execution of warrant by the commissioner. The measurements of plaint schedule property as noted by commissioner and plaint schedule property measurements are not tallied with each other. More particularly, the Northern side of the measurement is shown as 75.6 ft.

whereas, the learned commissioner shown 81 ft. Likewise, Southern side of plaint schedule property measurements shows that 77.6 ft. and whereas, the learned advocate commissioner measured 80.2 ft. At this juncture, it is relevant to refer the cross-examination of P.W.1.

36.P.W.1 in his cross-examination, he candidly admitted that the following important aspects. (1) Measurements mentioned in Ex.A1 are correct.

Measurements of my site on Northern side 70.6” and Southern side 70.6”. It is true that on land measurements of site are more than the measures given in Ex.A1.

37.The admission of P.W.1 is very clear that the measurements of the

Southern side as stated by P.W.1 is not tallied with Ex.A1 document and measurements prepared by commissioner. Plaintif has been filed a civil suit seeking discretionary relief of permanent injunction simplicitor. Therefore, the heavy burden lies upon the plaintif to establish that “ABC” left site of plaintif is part and parcel of Ex.A1/sale deed. As I already stated that the evidence of P.W.1 has not correctly mentioned the measurements to the Southern side and it vary from Ex.A1 document and Commissioner report. P.W.1 himself admitted that the land measurements are more than the measurements mentioned in Ex.A1. Therefore, without any hesitation, I hold that the disputed site “ABC” as left by plaintif as per

Vasthu is not part and parcel of the property covered under Ex.A1/sale deed.

38.Be that as it may, the judgment dated 4-1-2017 in O.S.No.66/2012 in which, the suit filed by the defendant was dismissed is no relevance at all, since 10 heavy burden lies upon the plaintif to establish his right, title and interest over the site “ABC” as depicted in plaint plan.

39.Admittedly, the defendant plot is located Southern side of plot of plaintif. It is immaterial whether the defendant has proved his case or not and the burden is on the plaintif to establish the crucial element, prima-facie case balance of convenience and if injunction is not granted, it would cause irreparable loss to the plaintif. As I already pointed out that the admission of P.W.1 is sufficient that the measurements particularly on the Southern side not tallied on the land and the measurement is more than the extent mentioned in Ex.A1 document. Therefore, the court came to conclusion that plaintif failed to establish “ABC” site is part and parcel of measurements mentioned in Ex.A1 document. Accordingly, point Nos.1 and 2 are answered negative to the case of appellant.

40.Point No.3:- In view of answering Point Nos.1 and 2, I hold that plaintif failed to prove his title, right or interest over the ”ABC” site and the suit filed by plaintif with a malafide intention to establish his right over “ABC” plaint plan site without any manner of right. As such, plaintif/appellant is not entitled for discretionary relief of permanent injunction. Accordingly, point is answered negative to the case of appellant.

41.Point No.4:- In the light of findings and observations in point Nos.1 to 3, I do not filed any ground to interfere with the well reasoned judgment of the trial courtand the judgment of trial court brooks no interference.

42.In the result, the appeal is dismissed by confirming the judgment and decree dated 30.11.2015 in O.S.No.370/2011 passed by I Additional Senior Civil

Judge, Kakinada. In the circumstances of the case, each party shall bear their own

costs.

Dictated to the Stenographer Gr.II, transcribed by him, corrected and pronounced by me in open Court,

this the 4 th day of April, 2022.

Sd/- N.Srinivasa Rao

IV Additional District Judge, Kakinada. Appendix of Evidence No additional oral or documentary evidence adduced on either side.

Sd/- N.Srinivasa Rao

IV ADJ/KKD Copy to:-// t.c.f.b.o // The I Additional Senior Civil Judge Court, Kakinada. Sr.Superintendent

1

IN THE COURT OF THE IV ADDITIONAL DISTRICT JUDGE,

EAST GODAVARI AT KAKINADA

Present: Sri N.Srinivasa Rao IV Additional District Judge

Wednesday, the 6th day of April, 2022

APPEAL SUIT No.12 of 2019

Between:

Vanum Narasimha Murthy, S/o.Venkata Rao,

... Appellant/defendant

And

Bikkina Bhishmudu, S/o.Bulliyya

... Respondent/plaintiff.

On appeal against the Decree and Judgment dated 10.12.2018 in

O.S.No.439 of 2017 on the file of II Additional Senior Civil Judge, Kakinada in

Between:

Bikkina Bhishmudu, S/o.Bulliyya ….Plaintiff

And

Vanumu Narasimha Murthy, S/o.Venkata Rao, ….Defendant.

This appeal suit coming on 06-04-2022 for final hearing before me in the presence of Sri.K.Srinivasa Rao, Advocate for Appellant/ defendant and the respondent having remained ex-parte and the matter having stood over till this day for consideration, this Court delivered the following:-

:: J U D G M E N T ::

Unsuccessful defendant preferred this appeal challenging the impugned

Judgment and decree dated 10.12.2018 in O.S.No.439/2017 passed by II

Additional Senior Civil Judge, Kakinada, wherein the suit is decreed on the foot

of promissory note dated 30.8.2015.

2.For the sake of convenience, the names of the parties as referred in the main suit.

3.Brief averments made in the plaint as mentioned thus;

Plaintiff instituted the suit for recovery of an amount of Rs.7,52,666/- (Rupees Seven Lakhs fifty two thousand six hundred and sixty six only) from the defendant on the foot of promissory note dated 30.08.2015.

4.Defendant borrowed an amount of Rs.5,00,000/- from plaintiff on 30.08.2015 for the purpose of his family expenses and to discharge sundry 2 debts and received consideration at Kakinada. Defendant executed a demand promissory note in favour of plaintiff agreeing to repay the same with interest at the rate of Rs.24% per annum. Thereafter, inspite of repeated demands made by the plaintiff, defendant failed to pay any amount towards suit promissory note debt and postponing the same on one pretext or the other. On that the plaintiff got issued notice legal notice dated 11-08-2017 to the defendant to discharge the amount due under the promissory note. Defendant received the same and did not pay anything till today. Defendant is not an agriculturist and he is not entitled to claim benefits under Act 4 of 38, 7 of 77.

Hence the Suit.

5.Defendant filed written statement inter-alia contended that he did not borrow any money muchless the pronote amount from the plaintiff.

Defendant does not know who is plaintiff. There is no consideration as mentioned by the plaintiff received by this defendant under the suit promissory note. Plaintiff has no capacity to lend such huge amount.

6.One Bikkana Sekhar has business dealings with one Gubbala

Venkata Ramana. In the business deals, Gubbala Venkata Ramana requested him and another person by name Vishnu to come and stand as surety. In that connection, Bikkina Sekhar obtained two empty pronotes signed by this defendant and also two other pronotes signed by Vishnu. This defendant suspects that the said Bikkina Sekhar would have pressed the plaintiff into service and got filed the present suit by making use of one of the pronotes available with him.

7.The suit promissory note is a rank forged. After receipt of legal notice, this defendant approached Bikkina Sekhar and appraised him of receipt of legal notice. He said that he only got issued notice by pressing the plaintiff into service and that he will not file any suit and hence, reply notice was not given. Defendant is not liable to pay any amount to the plaintiff. Hence, prays to dismiss the suit with costs.

8.On the strength of the above pleadings, the following issues are framed for trial in the trial court on 12-02-2018.

3

1. Whether the suit promissory note dated 30.08.2015 is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled for suit amount as prayed for?

3. To what relief?

9.During the course of trial, plaintiff is examined as P.W.1 and attestor of suit promissory note by name Balusu Satya Surya Venkata Ramana

Chowdary is examined as P.W.2 and Ex.A1 to A3 documents got marked on behalf of plaintiff.

10.On the other hand, the defendant alone is examined as D.W.1 and no documents got marked.

11.The trial court has considered the oral and documentary evidence and decreed the suit with costs for sum of Rs.7,52,666/- with subsequent interest at 12% p.a. from the date of the suit till the date of decree and thereafter at 6% p.a. from the date of decree till realization on principal sum of

Rs.5,00,000/-.

12. Feeling aggrieved, unsuccessful defendant has preferred the appeal challenging the impugned Judgment and Decree in O.S.No.439/2017

dated 10.12.2018 passed by II Additional Senior Civil Judge, Kakinada.

13. The appellant/defendant has raised the following grounds in the grounds of appeal.

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

b) The lower court ought to have considered the P.W.1 has no capacity to lend such huge amount of Rs.5,00,000/-.

c) The lower court ought to have considered that P.W.1 stated as “I live by cultivation as tenant, I have no own land, I have no written lease agreement as tenant”. “I have no document to show as I am in possession of an amount of Rs.5,00,000/- with me on 30.8.2015”. “I have no document to show as I received an amount of Rs.5,00,000/- in any transaction prior to 30.8.2015”.

d) The lower court ought to have considered that P.W.1 failed to give physical particulars of attestors and scribe and P.W.1 and ought to have considered that P.W.1 could not give full name of the attestor.

e) The Lower court ought to have considered the defence taken by the defendant in the light of material elicited in the evidence of P.W.1.

4

f) The lower court ought not to have believed the evidence of P.W.2 as he knows plaintiff only for three years back from the date of his deposition.

14.I have heard the arguments of learned counsel for the appellant and I have perused the material on record.

15.Upon considering the contentions, the following points arises for determination of appeal.

1. Whether the plaintiff could able to establish Ex.A1 promissory note

dated 30.8.2015 executed by defendant and binding on the

defendant?

2. Whether the judgment of the trial court needs any interference?

16.POINT No.1:- During trial, plaintiff, Bikkina Bhismudu himself examined as P.W.1 by filing chief affidavit in lieu of chief examination and filed

Ex.A1 to A3 documents on behalf of plaintiff and also examined B.Satya Surya

Venkata Ramana who is one of the attestors of Ex.A1 promissory note to support the version of plaintiff.

17.On the other hand, sole defendant V.Narasimha Murthy alone filed chief affidavit in lieu of his chief examination and examined as D.W.1 and no documents got marked.

18.During arguments, the main contention of the appellant counsel is that, in cross-examination of P.W.1, it was admitted that there is no proof of document for lending amount of Rs.5,00,000/- on the date of Ex.A1 and P.W.1 is a stranger to the defendant. He further argued that the evidence of P.Ws.1 and 2 is not properly appreciated by the trial court and erroneously decreed the suit.

19.Having considered the contentions of the counsel, I have carefully gone through the evidence P.Ws.1 and 2 and D.W.1. It is the main contention of appellant is that, one Bikkina Sekhar had business dealings with Gubbala

Venkata Ramana and in connection with business, Venkata Ramana requested the defendant and another person by name Vishnu to come and stand as surety for that he issued empty promissory note signed by defendant and two other pronotes signed by Vishnu. The defendant taken a specific plea that he denied the execution of Ex.A1/promissory note. Therefore, the initial burden is 5 on the plaintiff to establish the execution of Ex.A1/promissory note by defendant on 30.8.2015.

20.To substantiate the plea, plaintiff examined as P.W.1 and one of the attestors is examined as P.W.2. P.W.1 stated in his evidence the manner in which the defendant borrowing the amount on execution of Ex.A1/promissory note. P.W.1 in his cross-examination identified the defendant who present in the court hall by covering his face with kerchief. P.W.1 denied the fact that at the instance of Bikkina Sekhar he filed present suit and the attestor and scribe are henchmen of Bikkina Sekhar. P.W.2 also denied all the suggestions put by defendant during course of t0rial. The evidence of P.Ws.1 and 2 is corroborated with each other for execution of Ex.A1 promissory note by defendant. If really, plaintiff is a stranger to the defendant, he is unable to identify the defendant in the court hall. Ex.A1 document itself shows that plaintiff lent an amount of

Rs.5,00,000/- to the defendant on the date of Ex.A1/promissory note.

Therefore, proving of financial capacity of plaintiff does not arise in this case.

21.It is no doubt true that P.W.2 is unable to disclose the height of

Chamarthi Surya Rao and it is not a material fact in civil cases. Defendant has not adduced any satisfactory or cogent evidence with regard to proving the transaction between Bikkina Sekhar and Gubbala Venkata Ramana and more over, in the trial court, defendant failed to examine both G.Venkata Ramana and Vishnu. D.W.1 in his cross-examination he admitted that he is unable to give any details regarding Bikkina Sekhar. There is no proper reasons adduced by the defendant for non examination of G.Venkata Ramana and Vishnu to establish the crucial fact that he signed on the blank promissory note and handed over to Bikkina Sekhar. Prior to filing of the suit, plaintiff got issued

Ex.A2/lawyer notice and the defendant received Ex.A2 i.e. Ex.A3 acknowledgment. Defendant has not issued any reply notice and more over, he has not taken any legal action against Bikkina Sekhar. If really, defendant handed over the blank signed promissory note to Bikkina Sekhar, he would not keep quite without taking legal action. Trial court has considered the evidence on record meticulously and also appreciated the legal aspects in the decision reported in AIR 1987(1) AP 139 in between “G Vasu Vs. Syed Yaseen 6

Sifuddin Quadri” with regard to presumption under Sec.118 of Negotiable

Instruments Act. The grounds urged by the appellant counsel are not worth to consider and there is no point in cross-examination of P.Ws.1 and 2 to shaken their evidence. On the other hand, the evidence of P.Ws.1 and 2 are sufficient to establish the lending amount of Rs.5,00,000/- by plaintiff and execution of

Ex.A1/promissory note by defendant.

22.D.W.1 in his cross-examination categorically admitted that he has no documentary proof to show the dealings between plaintiff and B.Sekhar and also admitted his signature and thumb impression on Ex.A1/promissory note belongs to him. Therefore, there is no positive or cogent evidence adduced by the defendant to establish his plea as narrated in the written statement and in the absence of satisfactory evidence, I hold that plaintiff successfully established the execution of Ex.A1/promissory note by defendant on 30.8.2015. Accordingly, point is answered negative to the case of appellant.

23.Point No.2:- In view of the answers in Point No.1, I do not find any ground to interfere with the well reasoned judgment of the trial court and the judgment of the trial court books no interference. Accordingly, point is answered.

24. In the result, the appeal is dismissed by confirming Judgment and decree dated 10.12.2018 in O.S.No.439 of 2017 passed by II Additional

Senior Civil Judge, Kakinada. In the circumstances of the case, each party shall

bear their own costs.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open court, this the 6th day of April, 2022.

Sd/- N.Srinivasa Rao

IV ADDL. DISTRICT JUDGE,

KAKINADA.

No oral or documentary evidence is adduced on either side.

Sd/- N.Srinivasa Rao

IV ADDL. DISTRICT JUDGE,

KAKINADA.

Copy to: The II Addl. Senior Civil Judge, Kakinada. // t.c.f.b.o //

Sr.Superintendent