Smt.P.Lakshmi Sarada

V ADJ, ALG. 1 AS No. 39 of 2013 & AS No.16 of 2015

IN THE COURT OF THE V-ADDITIONAL DISTRICT JUDGE,

ALLAGADDA.

Present :- Smt. P.Lakshmi Sarada,

V-Additional District Judge, Allagadda.

Thursday, this the 27 th day of December, 2018.

APPEAL SUIT No.39 of 2013

Between:-

Dasari Gopalamma, Aged about 51 years, Wife of D.C.Subba Reddy,

Hindu, Cultivation, Residing in Yerragudi Village and Post, Koilakuntla

Mandal, Kurnool District.

…. Appellant/ Plaintiff.

A n d :-

1.Boyilla Vijayamma, Aged about 48 years, Wife of Siva Sankar Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

2.Karnati Venkatamma, Aged about 44 years, Wife of K.Venkata Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

3.Hariyapu Reddy Krishnavenamma, Aged about 60 years, Wife of Late

Narayana Reddy, Hindu, Cultivation, Resident of Bodemmanur

Village, Uyyalawada Mandal, Kurnool District.

… Respondents / Defendants.

An Appeal against the Decree and Judgment, dated 25.07.2013 passed by the learned Senior Civil Judge, Allagadda, in O.S.No.18 of 2009.

Between :-

Dasari Gopalamma, Aged about 51 years, Wife of D.C.Subba Reddy,

Hindu, Cultivation, Residing in Yerragudi Village and Post, Koilakuntla

Mandal, Kurnool District.

….Appellant/ Plaintiff.

V ADJ, ALG. 2 AS No. 39 of 2013 & AS No.16 of 2015

A n d :-

1.Boyilla Vijayamma, Aged about 48 years, Wife of Siva Sankar Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

2.Karnati Venkatamma, Aged about 44 years, Wife of K.Venkata Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

3.Hariyapu Reddy Krishnavenamma, Aged about 60 years, Wife of Late

Narayana Reddy, Hindu, Cultivation, Resident of Bodemmanur

Village, Uyyalawada Mandal, Kurnool District.

… Respondents / Defendants.

APPEAL SUIT No.16 of 2015

Between:-

Hariyapu Reddy Krishnavenamma, Aged about 60 years, Wife of Late

Narayana Reddy, Hindu, Cultivation, Resident of H.No.3rd, Bodemmanur

Village, Uyyalawada Mandal, Kurnool District.

…. Appellant/ Defendant No.3.

A n d :-

1.Dasari Gopalamma, Aged about 55 years, Wife of D.C.Subba Reddy,

Hindu, Cultivation, Residing in Yerragudi Village and Post, Koilakuntla

Mandal, Kurnool District.

Respondent / Plaintiff.

2.Boyilla Vijayamma, Aged about 48 years, Wife of Siva Sankar Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

3.Karnati Venkatamma, Aged about 44 years, Wife of K.Venkata Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

… Respondents / Defendants.

V ADJ, ALG. 3 AS No. 39 of 2013 & AS No.16 of 2015

An Appeal against the Decree and Judgment, dated 25.07.2013 passed by the learned Senior Civil Judge, Allagadda, in O.S.No.18 of 2009.

Between :-

Dasari Gopalamma, Aged about 51 years, Wife of D.C.Subba Reddy,

Hindu, Cultivation, Residing in Yerragudi Village and Post, Koilakuntla

Mandal, Kurnool District.

….Appellant/ Plaintiff.

A n d :-

1.Boyilla Vijayamma, Aged about 48 years, Wife of Siva Sankar Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

2.Karnati Venkatamma, Aged about 44 years, Wife of K.Venkata Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

3.Hariyapu Reddy Krishnavenamma, Aged about 60 years, Wife of Late

Narayana Reddy, Hindu, Cultivation, Resident of Bodemmanur

Village, Uyyalawada Mandal, Kurnool District.

… Respondents / Defendants.

*****

These Appeal Suits are coming on 19.12.2018 for hearing before me in the presence of Sri R.Natraj, Counsel for Appellant/Plaintif [in A.S.No.39 of 2013]; and of Sri B.Neelakanteswaram and

Sri C.Maddulety, Counsels for the Respondents/Defendants [in A.S.No.39 of 2013]; and of Sri C.M.L, Counsel for the Appellant/Defendant No.3 [in

A.S.No.16 of 2015]; Sri R.Natraj, Counsel for Respondent/Plaintif [R1] and

of Sri B.Neelakanteswram and Sri C.Maddulety, Counsel for Respondents

No.2 and 3/Defendants No.2 and 3 and upon hearing and on perusal of available material on record, the Court delivered the following judgment:-

V ADJ, ALG. 4 AS No. 39 of 2013 & AS No.16 of 2015

C O M M O N J U D G M E N T

01. Both the Appeal Suits arise from the Judgment and Decree,

Dt.25-07-2013 of Senior Civil Judge’s Court, Allagadda, passed in

O.S.No.18 of 2009. As such, both the Appeal Suits are commonly heard

and being disposed-of by way of Common Judgment.

Appeal Suit No.39 of 2013 was preferred by the Plaintif in the main suit aggrieved by the Judgment of the Trial Court in dismissing the

Suit filed for partition of the Plaint Schedule properties among herself and her two sisters i.e., Defendants No.1 and 2.

Appeal Suit No. 16 of 2015 was preferred by the Defendant

No.3 who is a third party and impleaded herself into the main Suit and the

Trial Court held that the Defendant No.3 failed to prove that she is in possession and enjoyment of half of Plaint Schedule Property, as pleaded by her.

02.The Suit before the Trial Court is that the Defendants No.1 and 2 are younger sisters of Plaintif. One D.Linga Reddy is their father. The

Plaint Schedule Properties are his ancestral properties and situated at

Injedu Village. The said D.Linga Reddy had no male issues and died leaving behind Plaintif and Defendants No.1 and 2 as his Legal Heirs, and as such, the property devolved upon them on his death. The Plaintif was given in marriage to one D.C.Subba Reddy of Yerragudi Village,

Kolimigundla Mandal and the Defendants were given in marriage in

Uyyalawada Village and Mandal, where the Plaint Schedule properties are situated.

V ADJ, ALG. 5 AS No. 39 of 2013 & AS No.16 of 2015

[a]As such, the Defendants No.1 and 2 are looking after the cultivation and giving 1/3rd share to the Plaintif. The Plaintif also has been bearing expenditure equally for the cultivation. The Plaintif and the

Defendants No.1 and 2 are in joint possession and enjoyment of the Plaint

Schedule Properties. The Plaintif fell into financial crisis and in need of money and as such, she ofered to sell her 1/3rd share in the Plaint

Schedule property to the Defendants No.1 and 2. Defendants No.1 and 2 did not accept for the same and asked to sell the property to some other persons. When the Plaintif tried to sell the property to the other villagers, the Defendants intentionally made a Propaganda that the Plaintif has no share in the Plaint Schedule Properties, thus dispute arose between them.

The Plaintif got issued a Legal Notice Dt.09-01-2007 for partition of the

Plaint Schedule properties and for her separate share. The same was received by the Defendants, but they issued Reply Notice with false allegations. As such, the Plaintif pleaded for Partition of the properties.

03.The Pleadings of the Defendants No.1 and 2 in their Written

Statement are that they admit that the Plaintif and Defendants No.1 and 2 are own sisters and they are the daughters of D.Linga Reddy, who had no male issues and that the Plaint Schedule Properties are their ancestral

Properties. The Defendants No.1 and 2 further pleaded that on 10-10- 1992, the Plaintif received an amount of Rs.20,000/-from D1 and relinquished her right in the Plaint Schedule properties in favour of D1 under Unregistered Relinquishment Deed, and as such, D1 became an absolute owner for the share of the Plaintif and has been in exclusive possession and enjoyment of the property from then. Her name was mutated in all the revenue records.

V ADJ, ALG. 6 AS No. 39 of 2013 & AS No.16 of 2015

[a]On 08-06-1995, the Plaintif received an amount of

Rs.20,000/- from the husband of D2 and relinquished her right in the

Plaint Schedule Property in favour of husband of D2 under another

Unregistered relinquishment Deed, which shows as Schedule-B in the

Written Statement and thus, the husband of D2, by name, Karnati Venkata

Reddy became absolute owner of the said property and has been in exclusive possession and enjoyment of the same from then onwards. The husband of the Plaintif so also one of the Attestor in the said

Relinquishment Deed. As such, the Plaintif lost her right over the Plaint

Schedule Properties and the defendants became absolute owners of the property by virtue of Relinquishment Deeds. The same facts were mentioned in the Reply Notice. The husband of D2 is necessary Party in the present Suit and as such, the Suit is bad for non-joinder of necessary party and there is no cause of action and hence, prayed to dismiss the

Suit.

04.Subsequently, as per the Orders of the Trial Court in

I.A.No.899 of 2011, filed under Order 7 Rule 1 of CPC, Dt.03-03-2012, the

Defendant No.3 was added in the Suit.

05.Defendant No.3 pleaded in her Written Statement that half of the Plaint Schedule property belonged to Defendant No.3 and she is the rightful owner and possessor. The original owner, D.Linga Reddy and his brother Chinna Linga Reddy were in possession of the properties and

Pedda Linga Reddy sold his half share in the total land to one Karnati

Balireddygari Chinna Venkata Reddy under Registered Sale Deed,

dt. 27-03-1951 and delivered the possession of the same.

V ADJ, ALG. 7 AS No. 39 of 2013 & AS No.16 of 2015

[a]Chinna Linga Reddy died issue less. His half share was succeeded by his brother Pedda Linga Reddy and from then, Pedda Linga

Reddy and Chinna Venkata Reddy continued in joint possession of the properties. The said purchaser Chinna Venkata Reddy died and later his only daughter i.e., Defendant No.3 succeeded to the property and has been in continuous possession and enjoyment of the property. As such,

D3 has right over the half share in the total property. The Plaintif or

Defendants No.1 and 2 have no exclusive rights over the total plaint schedule property. D3 has been cultivating her half share of the land and rest of the land was kept barren. As such, the Court Fee paid by the

Plaintif is not correct. The Suit for Partition is not maintainable and hence, prayed to dismiss the Suit.

06.The Plaintif did not make any additional pleadings in respect of D3, as per the Neat Copy of Plaintif filed by her. D2 additionally pleaded that the Plaintif and Defendant No.3 colluded together and created false documents and D3 has no right over any part of the Plaint

Schedule Proprieties.

07.Based on the pleadings, the trial court framed eight issues and one additional issue also framed.

1.Whether the Plaintif is in joint possession of the Suit

Schedule properties with the Defendants ?

2.Whether the Plaintif relinquished the A-Schedule mentioned properties annexed to the Written Statement of the Defendants in favour of the First Defendant by taking an amount of Rs.20,000/- from the 1st Defendant and also by executing a relinquishment Agreement on 10-10-1992 to that efect ?

V ADJ, ALG. 8 AS No. 39 of 2013 & AS No.16 of 2015

3.Whether the Plaintif relinquished the B-Schedule mentioned properties annexed to the Written Statement filed by the Defendants in favour of the husband of the 2nd

Defendant Sri Karnati Venkata Reddy by taking an amount of Rs.20,000/- from him and by executing a relinquishment agreement on 08-06-1995 to that efect ?

4.Whether the Suit is bad for non-joinder of necessary party ?

5.Whether the Plaintif is entitled to seek a decree for partition of the Suit Schedule Properties into three equal shares and for allotment of one such share to the Plaintif ?

6.Whether there is any cause of action for the present suit ?

7.Whether the fixed Court Fee paid by the Plaintif is correct ?

8.To what relief ?

Additional Issues :-

Whether the 3rd Defendant is in possession and enjoyment of half of the Plaint Schedule Property as pleaded by her ?

08.During the course of Trial, PW1 to PW3 were examined, and

Exs.A1 to A3 were marked, on behalf of the Plaintif. On behalf of the

Defendants, Dws.1 to 3 were examined and Exs.B1 to B8 were marked.

09.After due trial and arguments, the Trial Court dismissed the

Suit holding that the issues No.1,5 and 7 ie.., Whether the Plaintif is in joint possession of the properties, whether the Plaintif is entitled for partition and whether the Court Fee paid by the Plaintif is correct, against the Plaintif and held that, she is not entitled for any relief and non-suited. The Trial Court further held that Defendant No.3 failed to

V ADJ, ALG. 9 AS No. 39 of 2013 & AS No.16 of 2015

prove that she is in possession and enjoyment of half of Plaint Schedule

Property as pleaded by her, and thus, the Suit was dismissed.

10.Aggrieved by the said Judgment and Decree of the Trial Court, the Plaintif preferred Appeal in A.S.No.39 of 2013.

11.The brief averments of the Grounds of Appeal are that :- The Trial Court did not properly appreciate the evidence produced; and the trial court, having rejected the admissibility of Unregistered

Relinquishment Deeds, proceeded to dismiss the Suit wrongly; the trial court did not observe that the Defendants No.1 and 2 did not take any plea of ooster of Plaintif from the possession of Plaint Schedule properties and as such, it can be treated as in exclusive possession and enjoyment of the properties by the Defendants. The trial court wrongly placed the burden upon the plaintif to prove that she is in joint possession and enjoyment of the property. Having held the other issue in favour of the

Plaintif, the issues No.1, 5 and 7 are also to be held in favour of the

Plaintif. The rejection of plea of Defendant No.3 by the trial court is proper and hence, prayed to allow Appeal.

12.The Defendant No.3 preferred Appeal in A.S.No.16 of 2015 :-

The brief grounds in the Appear are that the trial court rightly dismissed the Suit. But, it was wrongly held that Defendant No.3 failed to prove her possession. The trial Court did not properly appreciate the admissions made by the Plaintif and the Defendants in respect of sale transactions in favour of the father of Defendant No.3 and hence, prayed to allow Appeal by setting aside the Judgment of the trial court and thus prayed to dismiss the Suit in the interest of justice.

13.Heard both sides.

V ADJ, ALG. 10 AS No. 39 of 2013 & AS No.16 of 2015

14.Now the Points for consideration is :-

A].Whether the Appeal Suit are to be allowed and the Judgment and Decree of the Trial Court is to be set aside ?

B].To what relief ?

15.For the sake of convenience, both parties are referred as arrayed in the Suit, before Trial Court.

16. Point No. A :-

The Pleadings of the parties show that the Defendants No.1 and 2 admitted that themselves and the Plaintif are the daughters of one

D.Linga Reddy who owned the Plaint Schedule property. Their Pleadings further show that they admitted about their properties as pleaded by the

Plaintif. Their pleadings further show that the Plaintif relinquished her rights over some of the properties during the year 1992 under Un- registered relinquishment Deed in favour of D1 and later, over some other properties during the year 1995 under Un-registered Relinquishment Deed in favor of the husband of D2 and thus, the Plaintif lost her rights over the properties. The Defendants have shown A and B Schedules of properties in their written statement in respect of said Relinquishment

Deeds.

17.As per Plaint, the property shown in Plaint Schedule is in 10 items in diferent survey numbers with diferent extents and the total extent was shown as Ac.68-43 cents as a single plot with common boundaries. As seen from A and B-Schedule properties in written statement, it seems the defendants pleaded that the Plaintif relinquished some extent of her share in all the properties in favour of D1 and husband of D2 separately which are shown under Schedules A and B.

V ADJ, ALG. 11 AS No. 39 of 2013 & AS No.16 of 2015

18.Another important point is that the Defendants pleaded that the Plaintif received amounts and executed unregistered relinquishment deeds. On the other hand, D3 pleaded that the original owner of the property i.e., D.Linga Reddy, who is the father of Plaintif and

D1 and D2, sold his half share in the property to the father of Defendant

No.3 and later, Chinna Linga Reddy died issue less and his remaining share devolved upon his brother Pedda Linga Reddy, who is the father of the Plaintif and Defendants No.1 and 2, and thus, D3 has right over the property sold to her father by name, Chinna Venkata Reddy.

19.The evidence of Plaintif reveals that the Plaintif examined herself as PW1 and produced the office copy of legal notice, postal acknowledgements and Returned Postal cover under Exs.A1 to A3. Her evidence reveals that she did not mention the date of death of her father in her pleadings and in her evidence and her marriage was performed about 33 years ago and after 8 months of her marriage, D1 and D2 were married. The husband of D2, by name, Venkata Reddy was cultivating the part of the land. The cultivation is on behalf of the Plaintif and D1 and D2. She does not know the contents of Reply Notice. The extent of

Ac.10-00 of Plaint Schedule land kept fallow.

[a]She did not apply for Pattadar Pass Books and Title deed for the properties. She denied the execution of relinquishment deeds as pleaded by the Plaintif. She further denied that her father sold his share of property in favour of Chinna Venkata Reddy under Registered sale deed, but she deposed her father nominally executed the document, dt.

27-03-1951 in favour of Chinna Venkata Reddy.

V ADJ, ALG. 12 AS No. 39 of 2013 & AS No.16 of 2015

20.The husband of Plaintif was examined as PW2 and his evidence reveals that the husband of D1 and D2 are jointly cultivating the lands even after the issuance of Ex.A1 Legal Notice. He does not know that his father in law sold properties in favour of Chinna Venkata

Reddy under Registered Sale Deed.

21.One third party was examined as PW3 to support the plea of

Plaintif that the Plaintif also participated in the agricultural operations in the property with the help of PW3. His evidence reveals that he owned

Ac.28-00 cents of land. PW2 and himself jointly cultivated the lands. Part of Plaint Schedule property is kept fallow and Ac.20-00 cents of land is under cultivation. He does not know about the family afairs of Plaintif.

22.D1 examined herself as DW1 and her evidence reveals that herself and husband D2 are living in Uyyalawada Village and the Plaintif is residing in Yerragudi Village along with her husband. The Plaint

Schedule Property belonged to their father and after the death, they have succeeded to the property along with Plaintif. The Plaintif never studied in any School and they never resided at Mayaluru Village. The husband of

D2 is brother-in-law’s son of Lingamma who is sister of her father.

[a]She further deposed that her husband is her material uncle.

She does not know the value of the property. She did not obtain any pattadar pass book and title deed in her name. One Venkata Rama Linga

Reddy is her junior paternal uncle and Pedda Linga Reddy is her father.

The Defendants and Plaintif are legal heirs of her junior paternal uncle.

D3 is daughter of Paternal Aunt. The husband of D2 is brother of D3. The father of D1 was addicted to alcohol. D3 never cultivated the suit land.

V ADJ, ALG. 13 AS No. 39 of 2013 & AS No.16 of 2015

Her father executed the sale deed in favour of Chinna Venkata Reddy and handed over the property on 27-03-1951.

23.The second Defendant was examined as DW2 and her evidence reveals that the Plaint Schedule property is their ancestral property. The Plaintif never resided in Mayaluru Village and she is residing in Yerragudi Village. D1 and D2 are residing at Uyyalawada

Village. She did not obtain any Pattadar pass book and title deed in her name. She was not born when her father gave his half share to the father of D3.

24.D3 examined herself as DW3. Her evidence reveals that her father purchased the plaint schedule property from Pedda Linga Reddy and she is in possession and enjoyment of that property. The defendants

No.1 and 2 did not inform about the Suit to her. Chinna Linga Reddy died as Bachelor. The Plaint Schedule Properties are ancestral properties of

Pedda Linga Reddy and Chinna Linga Reddy. Her mother is elder sister of

Pedda Linga Reddy. Except mentioning that half share, no other properties were mentioned in the sale deed of her father. She did not file the original sale deed in the Court. She did not file any document of

Adangals to prove her possession. She did not file any Suit for declaration of half share. She has produced Ex.B8 Registration Extract of sale deed

Dt.27-03-1951.

25.The Defendants have produced No.3 Adangals for the faslies 1417 to 1420 under Exs.B3 to B6. Ex.B1 is Pattadar Pass Book in favour of husband of D2 and Ex.B7 is 1-B Registration Extract.

26.The evidence as discussed above, categorically show that the

Plaint Schedule properties are the ancestral properties of Plaintif and

V ADJ, ALG. 14 AS No. 39 of 2013 & AS No.16 of 2015

Defendants. D3 is no other than the daughter of sister of father of

Plaintif. It further revealed that the father of Plaintif had one brother and one sister. The evidence further disclosed that the father of Plaintif executed Ex.B8 sale Deed dt.27-03-1951 in favour of father of D3. The brother of father of Plaintif died as Bachelor, due to which, his share devolved upon the father of the Plaintif and later, the Plaintif and

Defendants No.1 and 2 succeeded to the said property.

[a]The pleadings and evidence further disclosed that the mother of D3 did not claim succession rights over the ancestral property and thus, the father and junior paternal uncle of Plaintif became absolute owners of Plaint Schedule Property being their ancestral property.

27.The Defendants No.1 and 2 and also Plaintif are female issues to the original owner i.e., their father. Defendants No.1 and 2 were given in marriage to the persons who are residents of the same village and the

Plaintif was married to a person in Yerragudi Village and has been residing therein since then. The Defendants No.1 and 2 did not plead any partition of the Plaint Schedule Properties among themselves after the death of their father.

28.Evidently, the date of death of their father was not mentioned by any of parties. The only plea taken by the defendants about the severance of joint status is, execution of Relinquishment deeds by the

Plaintif in favour of the D1 in the year 1992 and in favour of the husband of D2 in the year 1995, under Un-registered relinquishment Deeds.

29.Evidently, the said Relinquishment Deeds were not produced

before the Court. The record further shows that the Defendants preferred

a Revision Petition before the Hon’ble High Court and the Hon’ble High

V ADJ, ALG. 15 AS No. 39 of 2013 & AS No.16 of 2015

Court also rejected their prayer for admitting the said un-registered relinquishment deeds into evidence, as per the Orders in Crl.R.P.No.386 of 2011. Moreover, the Plaintif and her husband who was examined as

PW2, categorically denied the execution of any said Relinquishment

Deeds.

[a]In these circumstances, the observation of trial court that the unregistered document of relinquishment of rights of the Plaintif, are inadmissible in evidence, and thus, the defendants would not get any rights under any such inadmissible documents, and as such, the point of relinquishment of rights of Plaintif has been ruled out. Thus, the defendants have limited scope to prove the severance of joint status of the Plaint schedule properties between the Plaintif and the D1 and D2.

30.The parties are governed by Hindu Law and as such, the

Hindu Succession Act applies to them. As per section 19 of Hindu

Succession Act :- if there are two or more legal heirs who succeeded together to the property of any intestate, they shall take property per capita as tenants in common and not as joint tenants. In view of the same, the Plaintif and D1 and D2 ought to be treated as Tenants in common i.e., holding rights over the entire property with unspecified shares as co-parceners. In these circumstances, the possession of one of the share holder amounts to be the possession of all the share holders.

31.The Decision relied upon by the Plaintiff and reported

in 2016 [2] CCC 89 [Jharkhand] between Hemalatha Devi & Others

Versus Remautar Sao @ Others, in which the Hon’ble High Court

of Jharkhand referred the Judgment of Hon’ble Supreme Court of

India between Ram Sarup Gupta Versus Bishun Narain Inter

V ADJ, ALG. 16 AS No. 39 of 2013 & AS No.16 of 2015

College [1987] 2 SCC 555 and held that the possession of one co-

sharer is considered in law as the possession of all the co-sharers

or co-heirs until and unless the co-heirs bring an evidence of

open assertion of hostile title, coupled with exclusive possession

and enjoyment to the knowledge of other co-sharers…………

32.The pleadings and evidence of the defendants did not suggest that they are pleading hostile possession over the plaint schedule property against the rights of Plaintif. The specific plea of defendants is that from the date of relinquishment deeds, D1 and husband of D2 have been in exclusive possession of the share of Plaintif i.e., from 1992 and 1995 respectively. Ex.B1 is the Pattadar Pass Book of husband of D2 which discloses ten items of properties as pattadar. The nature of acquisition of the property by the husband of D2 was not mentioned in it.

Moreover, B-Schedule property, which is said to be property over which the Plaintif relinquished her rights is also not in consonance with the properties mentioned in Ex.B1.

33.Exs.B3 to B6, the Adangals also does not show the nature of acquisition of the property by the Pattadar/enjoydar mentioned in it. It was not at all mentioned that the said properties devolved as heriditory and relinquished by one of the share holder. Moreover, Exs.B3 to B6 are from the year 2007 on-wards since they related to faslies 1417 to 1420.

Evidently, the present Suit was filed in the year 2009. Ex.B7 1-B Extract which reflects the properties of husband of Plaintif is not relevant to the facts of the present case and no way helpful to the defendants to prove their exclusive rights over the property.

V ADJ, ALG. 17 AS No. 39 of 2013 & AS No.16 of 2015

34.In view of all the circumstances as discussed above, the defendants No.1 and 2 failed to prove that the Plaintif relinquished her rights over the Plaint Schedule Properties and that the Defendants No.1 and 2 have been in exclusive possession and enjoyment of the property with open assertion of hostile title and exclusive enjoyment, to the knowledge of Plaintif who is a Co-sharer. Thus, it proves that there is still joint possession of plaint schedule properties so-far-as the Plaintif and D1 and D2 are concerned and the Defendants No.1 and 2 failed to prove that the husband of D2 is a necessary party and further that the Suit is bad for non-joinder of necessary party.

35.The evidence of Plaintif and Defendants NO.1 and 2 discloses that they admit about the execution of Registered sale deed dt.27-03- 1951 by the father of the Plaintif in favour of the father of D3. Ex.B8 is the Certified copy of Registered sale deed produced by D3. Evidently, D3 did not produce the original sale deed. But, the transaction was admitted by the Plaintif, Defendants No.1 and 2.

36.A perusal of Ex.B8, shows that it was executed by Pedda Linga

Reddy infavour of Chinna Venkata Reddy. The property was shown as ancestral property and in possession of Vendor therein. The properties referred under Ex.B8 are shown in Survey Nos.103, 105, 107, 108/2, 108/4, 112 and 114, in which, half share of vendor was said to be sold and the total extent of property was shown as Ac.68-43 cents.

37.The witnesses have admitted that the Vendor under Ex.B8 is the father of the Plaintif and Defendants, and D3 is only daughter of purchaser therein. Ex.B8 further shows that the possession was also handed over for the properties sold therein, but the contents categorically

V ADJ, ALG. 18 AS No. 39 of 2013 & AS No.16 of 2015

show that the property sold was only half portion of entire property and several other properties which are not claimed by the Plaintif or

Defendants No.1 and 2 were also sold under Ex.B8. So-far-as the sale of half of Plaint Schedule Property is concerned, it was not shown with specific boundaries in respect of properties sold therein.

38.The Plaintif did not mention about the said sale of property by her father nor defendants NO.1 and 2. It is only when D3 added herself in the Suit as one of the defendant, the said fact was brought to the notice of the Court. Moreover, the plea of the Defendant No.3 is that her father and later she has been in joint possession of the properties along with other share holders i.e., Junior Paternal Uncle and thereafter, the father of Plaintif and Defendants No.1 and 2. It is fact that D3 did not produce any other evidence to prove her physical possession and enjoyment over the said half share of the property under Ex.B8 nor produced any other evidence in respect of enjoyment of her father by virtue of said sale deed.

39.However, the parties have admitted that the sale transaction took place under registered document and so also that it was executed by the father of the Plaintif. During the evidence, the Plaintif deposed that due to bad vices of her father, the village elders decided that the property to be kept in the name of the father of D3, to protect the same. The

Plaintif did not produce any evidence to prove that Ex.B8 was never intended to be acted upon and that it was only nominal document.

40.Section 48 of Registration Act provides that “ all non- testamentary documents duly registered under the said Act, and relating to any property, whether movable or immovable, shall take efect against

V ADJ, ALG. 19 AS No. 39 of 2013 & AS No.16 of 2015

any other agreement or declaration relating to such property, unless where the agreement or declaration has been accompanied or followed by delivery of possessionand the same constitutes a valid transfer under any law for the time being in force”.

41.Section 47 of the Registration Act further envisages that “ A registered document shall operate from the time at which it would have commenced to operate if no registration thereof had been required or made……….” 42.In view of the proof of Ex.B8 sale transaction and in pursuance of the Provisions of Registration Act, it is proved that the sale transaction under Ex.B8 has come into efect from the date, when it was made i.e., during 1951 itself.

43.In-so-far-as, the plea taken by the Plaintif and Defendants

No.1 and 2 in respect of Ex.B8 sale transaction is concerned, the plaintif or defendants No.1 and 2 did not produce any evidence to prove that

Ex.B8 sale transaction was meant to be a nominal document and it was not intended to be acted upon.

44.As already discussed above, the date of death of the father of the Plaintif was not mentioned by any of the parties to the Suit. There was no dispute in respect of the properties and their enjoyment during the life time of father of the Plaintif, as per the pleadings and evidence of parties. Ex.B8 sale transaction was of the year 1951. The plea of Plaintif shows that it was benami transaction and purchaser thereunder, did not get any rights over the property.

V ADJ, ALG. 20 AS No. 39 of 2013 & AS No.16 of 2015

45.Section 4 of Benami Transactions [Prohibition] Act, 1988 [original enactment] provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property……………… No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

[a]But, exceptions are given in respect of coparcerner and trust, which is not applicable to the facts of the present case. .

46.Under Act-43 of 2016 amendments were introduced in Benami transactions [Prohibition] Act and as per the amendment Act, several other exceptions are given including the Kartha and Hindu undivided family and person being spouse, brother or sister or lineal ascendant or descendant where the owner of the property is not aware of, or, denies knowledge of, such ownership, etc., 47.The facts of the present case are not included in the said exceptions. In these circumstances, the Plaintif cannot plead that the sale transaction under Ex.B8 is only a nominal document and no such transaction was acted upon etc., Moreover, the evidence of Plaintif itself categorically prove that the villagers have knowledge about the sale transaction executed by the father of the plaintif in favour of the father of

D3. No such villagers were examined to prove that it was only nominal, but it is proved that sale transaction is within the knowledge of all.

V ADJ, ALG. 21 AS No. 39 of 2013 & AS No.16 of 2015

48.For all the reasons discussed above, it is proved that some part of the Plaint Schedule Property was sold under Ex.B8 and as such, the Plaintif or Defendants No.1 and 2 have no right to claim the property sold under Ex.B8. It is also further proved that D3, being the sole Legal

Heir of purchaser of property under Ex.B8, is proved to be in joint possession of the plaint schedule property to the extent of the share sold under Ex.B8.

49.These circumstances further proved that the plea of the

Plaintif that she has been in joint possession of the Plaint Schedule property being the Legal Heir of the original owner stand proved and as such, the Court Fee paid by the Plaintif under section 34[2] of A.P.C.F. &

S.V. Act is correct. Hence, the Plaintif proved and Issue No.1 is to be held in her favour and so also Issue No.7. In-so-far-as Issue No.5 is concerned, it is proved that the Plaintif is not entitled for partition of entire Plaint

Schedule Property, but she is entitled for share in the half part of the

Plaint Schedule property and the Defendant No.3 is proved to be in rightful joint possession over the remaining half share of the property and as such, the Suit is to be dismissed for the remaining half share.

50.Defendant No.3 did not make any counter claim to declaration of her rights over the property sold to her father under Ex.B8 nor pleaded for separate possession of the property in the present Suit. Except, pleadings of the joint possession over the property, D3 did not make any such specific claim in the Suit for partition filed between the family members. As such, though the joint possession of D3 is proved, she is not entitled to get any specific share in the present Suit and she has to take necessary legal steps to claim the said relief, through due process of law.

V ADJ, ALG. 22 AS No. 39 of 2013 & AS No.16 of 2015

51.D3 filed Appeal Suit No.16 of 2015 praying for dismissal of the suit ultimately, which is the decision given by the Trial Court. D3 pleaded that her joint possession over the property is to be confirmed by the

Court, as per the relief prayed in the Appeal. The additional issue to the efect as to whether the third defendant is in possession and enjoyment of the half of the Plaint Schedule Property, as pleaded by her is to be answered in her favour and to that efect the Judgment of the trial court is to be set aside.

52.For all the reasons discussed above, both Appeal Suits are to be allowed, the Judgment of the trial Court, dt.25-07-2013 is to be set aside. As per the Appeal of Defendant No.3 in A.S.No.16 of 2015, the

additional issue framed by the trial court is held to be in favour of D3. As

per Appeal of Plaintif, in A.S.No.39 of 2013, the Issues No.1 and 7 are held in favour of Plaintif. So-far-as, issue No.5 is concerned, it is held that the Plaintif is entitled for Partition of half of the plaint schedule properties in all the survey numbers, in which she is entitled for 1/3rd share. As such, the Suit is to be partly decreed preliminary to that efect.

Hence, this Point is answered accordingly.

Point No.B 53.In the result, the Appeal Suit No.39 of 2013 and Appeal Suit

No.16 of 2015 are allowed and no Order as to costs in the Appeal Suits, and the Judgment and Decree of the Trial Court i.e., Senior Civil Judge

Court, Allagadda, passed in O.S.No.18 of 2009, Dt.25-07-2013 is set- aside.

Consequently, the Suit in O.S.No.18 of 2009, on the file of Senior

Civil Judge’s Court, Allagadda, is herebyPARTLY DECREED

V ADJ, ALG. 23 AS No. 39 of 2013 & AS No.16 of 2015

PRELIMINARY for half of the Plaint Schedule Property, in which, the

Plaintif is entitled to 1/ 3rd share and for separate possession of the same. The Suit in-so-far-as remaining half of Plaint Schedule Property is concerned, is hereby dismissed. In the circumstances, the Parties do bear their own costs in the Suit.

Dictated to the Stenographer, transcribed by him corrected and

pronounced by me in open court on this the 27th day of December, 2018.

Sd/- P.Lakshmi Sarada.

V-ADDITIONAL DISTRICT JUDGE,

ALLAGADDA.

APPENDIX OF EVIDENCE

- NIL -

Sd/- P.L.S.,

V ADJ, ALG.

Copy to the Senior Civil Judge’s Court, Allagadda.

V ADJ, ALG. 1 AS No. 39 of 2013 & AS No.16 of 2015

IN THE COURT OF THE V-ADDITIONAL DISTRICT JUDGE,

ALLAGADDA.

Present :- Smt. P.Lakshmi Sarada,

V-Additional District Judge, Allagadda.

Thursday, this the 27 th day of December, 2018.

APPEAL SUIT No.39 of 2013

Between:-

Dasari Gopalamma, Aged about 51 years, Wife of D.C.Subba Reddy,

Hindu, Cultivation, Residing in Yerragudi Village and Post, Koilakuntla

Mandal, Kurnool District.

…. Appellant/ Plaintiff.

A n d :-

1.Boyilla Vijayamma, Aged about 48 years, Wife of Siva Sankar Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

2.Karnati Venkatamma, Aged about 44 years, Wife of K.Venkata Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

3.Hariyapu Reddy Krishnavenamma, Aged about 60 years, Wife of Late

Narayana Reddy, Hindu, Cultivation, Resident of Bodemmanur

Village, Uyyalawada Mandal, Kurnool District.

… Respondents / Defendants.

An Appeal against the Decree and Judgment, dated 25.07.2013 passed by the learned Senior Civil Judge, Allagadda, in O.S.No.18 of 2009.

Between :-

Dasari Gopalamma, Aged about 51 years, Wife of D.C.Subba Reddy,

Hindu, Cultivation, Residing in Yerragudi Village and Post, Koilakuntla

Mandal, Kurnool District.

….Appellant/ Plaintiff.

V ADJ, ALG. 2 AS No. 39 of 2013 & AS No.16 of 2015

A n d :-

1.Boyilla Vijayamma, Aged about 48 years, Wife of Siva Sankar Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

2.Karnati Venkatamma, Aged about 44 years, Wife of K.Venkata Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

3.Hariyapu Reddy Krishnavenamma, Aged about 60 years, Wife of Late

Narayana Reddy, Hindu, Cultivation, Resident of Bodemmanur

Village, Uyyalawada Mandal, Kurnool District.

… Respondents / Defendants.

APPEAL SUIT No.16 of 2015

Between:-

Hariyapu Reddy Krishnavenamma, Aged about 60 years, Wife of Late

Narayana Reddy, Hindu, Cultivation, Resident of H.No.3rd, Bodemmanur

Village, Uyyalawada Mandal, Kurnool District.

…. Appellant/ Defendant No.3.

A n d :-

1.Dasari Gopalamma, Aged about 55 years, Wife of D.C.Subba Reddy,

Hindu, Cultivation, Residing in Yerragudi Village and Post, Koilakuntla

Mandal, Kurnool District.

Respondent / Plaintiff.

2.Boyilla Vijayamma, Aged about 48 years, Wife of Siva Sankar Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

3.Karnati Venkatamma, Aged about 44 years, Wife of K.Venkata Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

… Respondents / Defendants.

V ADJ, ALG. 3 AS No. 39 of 2013 & AS No.16 of 2015

An Appeal against the Decree and Judgment, dated 25.07.2013 passed by the learned Senior Civil Judge, Allagadda, in O.S.No.18 of 2009.

Between :-

Dasari Gopalamma, Aged about 51 years, Wife of D.C.Subba Reddy,

Hindu, Cultivation, Residing in Yerragudi Village and Post, Koilakuntla

Mandal, Kurnool District.

….Appellant/ Plaintiff.

A n d :-

1.Boyilla Vijayamma, Aged about 48 years, Wife of Siva Sankar Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

2.Karnati Venkatamma, Aged about 44 years, Wife of K.Venkata Reddy,

Hindu, Cultivation, Resident of Uyyalawada Village and Mandal,

Kurnool District.

3.Hariyapu Reddy Krishnavenamma, Aged about 60 years, Wife of Late

Narayana Reddy, Hindu, Cultivation, Resident of Bodemmanur

Village, Uyyalawada Mandal, Kurnool District.

… Respondents / Defendants.

*****

These Appeal Suits are coming on 19.12.2018 for hearing before me in the presence of Sri R.Natraj, Counsel for Appellant/Plaintif [in A.S.No.39 of 2013]; and of Sri B.Neelakanteswaram and

Sri C.Maddulety, Counsels for the Respondents/Defendants [in A.S.No.39 of 2013]; and of Sri C.M.L, Counsel for the Appellant/Defendant No.3 [in

A.S.No.16 of 2015]; Sri R.Natraj, Counsel for Respondent/Plaintif [R1] and

of Sri B.Neelakanteswram and Sri C.Maddulety, Counsel for Respondents

No.2 and 3/Defendants No.2 and 3 and upon hearing and on perusal of available material on record, the Court delivered the following judgment:-

V ADJ, ALG. 4 AS No. 39 of 2013 & AS No.16 of 2015

C O M M O N J U D G M E N T

01. Both the Appeal Suits arise from the Judgment and Decree,

Dt.25-07-2013 of Senior Civil Judge’s Court, Allagadda, passed in

O.S.No.18 of 2009. As such, both the Appeal Suits are commonly heard

and being disposed-of by way of Common Judgment.

Appeal Suit No.39 of 2013 was preferred by the Plaintif in the main suit aggrieved by the Judgment of the Trial Court in dismissing the

Suit filed for partition of the Plaint Schedule properties among herself and her two sisters i.e., Defendants No.1 and 2.

Appeal Suit No. 16 of 2015 was preferred by the Defendant

No.3 who is a third party and impleaded herself into the main Suit and the

Trial Court held that the Defendant No.3 failed to prove that she is in possession and enjoyment of half of Plaint Schedule Property, as pleaded by her.

02.The Suit before the Trial Court is that the Defendants No.1 and 2 are younger sisters of Plaintif. One D.Linga Reddy is their father. The

Plaint Schedule Properties are his ancestral properties and situated at

Injedu Village. The said D.Linga Reddy had no male issues and died leaving behind Plaintif and Defendants No.1 and 2 as his Legal Heirs, and as such, the property devolved upon them on his death. The Plaintif was given in marriage to one D.C.Subba Reddy of Yerragudi Village,

Kolimigundla Mandal and the Defendants were given in marriage in

Uyyalawada Village and Mandal, where the Plaint Schedule properties are situated.

V ADJ, ALG. 5 AS No. 39 of 2013 & AS No.16 of 2015

[a]As such, the Defendants No.1 and 2 are looking after the cultivation and giving 1/3rd share to the Plaintif. The Plaintif also has been bearing expenditure equally for the cultivation. The Plaintif and the

Defendants No.1 and 2 are in joint possession and enjoyment of the Plaint

Schedule Properties. The Plaintif fell into financial crisis and in need of money and as such, she ofered to sell her 1/3rd share in the Plaint

Schedule property to the Defendants No.1 and 2. Defendants No.1 and 2 did not accept for the same and asked to sell the property to some other persons. When the Plaintif tried to sell the property to the other villagers, the Defendants intentionally made a Propaganda that the Plaintif has no share in the Plaint Schedule Properties, thus dispute arose between them.

The Plaintif got issued a Legal Notice Dt.09-01-2007 for partition of the

Plaint Schedule properties and for her separate share. The same was received by the Defendants, but they issued Reply Notice with false allegations. As such, the Plaintif pleaded for Partition of the properties.

03.The Pleadings of the Defendants No.1 and 2 in their Written

Statement are that they admit that the Plaintif and Defendants No.1 and 2 are own sisters and they are the daughters of D.Linga Reddy, who had no male issues and that the Plaint Schedule Properties are their ancestral

Properties. The Defendants No.1 and 2 further pleaded that on 10-10- 1992, the Plaintif received an amount of Rs.20,000/-from D1 and relinquished her right in the Plaint Schedule properties in favour of D1 under Unregistered Relinquishment Deed, and as such, D1 became an absolute owner for the share of the Plaintif and has been in exclusive possession and enjoyment of the property from then. Her name was mutated in all the revenue records.

V ADJ, ALG. 6 AS No. 39 of 2013 & AS No.16 of 2015

[a]On 08-06-1995, the Plaintif received an amount of

Rs.20,000/- from the husband of D2 and relinquished her right in the

Plaint Schedule Property in favour of husband of D2 under another

Unregistered relinquishment Deed, which shows as Schedule-B in the

Written Statement and thus, the husband of D2, by name, Karnati Venkata

Reddy became absolute owner of the said property and has been in exclusive possession and enjoyment of the same from then onwards. The husband of the Plaintif so also one of the Attestor in the said

Relinquishment Deed. As such, the Plaintif lost her right over the Plaint

Schedule Properties and the defendants became absolute owners of the property by virtue of Relinquishment Deeds. The same facts were mentioned in the Reply Notice. The husband of D2 is necessary Party in the present Suit and as such, the Suit is bad for non-joinder of necessary party and there is no cause of action and hence, prayed to dismiss the

Suit.

04.Subsequently, as per the Orders of the Trial Court in

I.A.No.899 of 2011, filed under Order 7 Rule 1 of CPC, Dt.03-03-2012, the

Defendant No.3 was added in the Suit.

05.Defendant No.3 pleaded in her Written Statement that half of the Plaint Schedule property belonged to Defendant No.3 and she is the rightful owner and possessor. The original owner, D.Linga Reddy and his brother Chinna Linga Reddy were in possession of the properties and

Pedda Linga Reddy sold his half share in the total land to one Karnati

Balireddygari Chinna Venkata Reddy under Registered Sale Deed,

dt. 27-03-1951 and delivered the possession of the same.

V ADJ, ALG. 7 AS No. 39 of 2013 & AS No.16 of 2015

[a]Chinna Linga Reddy died issue less. His half share was succeeded by his brother Pedda Linga Reddy and from then, Pedda Linga

Reddy and Chinna Venkata Reddy continued in joint possession of the properties. The said purchaser Chinna Venkata Reddy died and later his only daughter i.e., Defendant No.3 succeeded to the property and has been in continuous possession and enjoyment of the property. As such,

D3 has right over the half share in the total property. The Plaintif or

Defendants No.1 and 2 have no exclusive rights over the total plaint schedule property. D3 has been cultivating her half share of the land and rest of the land was kept barren. As such, the Court Fee paid by the

Plaintif is not correct. The Suit for Partition is not maintainable and hence, prayed to dismiss the Suit.

06.The Plaintif did not make any additional pleadings in respect of D3, as per the Neat Copy of Plaintif filed by her. D2 additionally pleaded that the Plaintif and Defendant No.3 colluded together and created false documents and D3 has no right over any part of the Plaint

Schedule Proprieties.

07.Based on the pleadings, the trial court framed eight issues and one additional issue also framed.

1.Whether the Plaintif is in joint possession of the Suit

Schedule properties with the Defendants ?

2.Whether the Plaintif relinquished the A-Schedule mentioned properties annexed to the Written Statement of the Defendants in favour of the First Defendant by taking an amount of Rs.20,000/- from the 1st Defendant and also by executing a relinquishment Agreement on 10-10-1992 to that efect ?

V ADJ, ALG. 8 AS No. 39 of 2013 & AS No.16 of 2015

3.Whether the Plaintif relinquished the B-Schedule mentioned properties annexed to the Written Statement filed by the Defendants in favour of the husband of the 2nd

Defendant Sri Karnati Venkata Reddy by taking an amount of Rs.20,000/- from him and by executing a relinquishment agreement on 08-06-1995 to that efect ?

4.Whether the Suit is bad for non-joinder of necessary party ?

5.Whether the Plaintif is entitled to seek a decree for partition of the Suit Schedule Properties into three equal shares and for allotment of one such share to the Plaintif ?

6.Whether there is any cause of action for the present suit ?

7.Whether the fixed Court Fee paid by the Plaintif is correct ?

8.To what relief ?

Additional Issues :-

Whether the 3rd Defendant is in possession and enjoyment of half of the Plaint Schedule Property as pleaded by her ?

08.During the course of Trial, PW1 to PW3 were examined, and

Exs.A1 to A3 were marked, on behalf of the Plaintif. On behalf of the

Defendants, Dws.1 to 3 were examined and Exs.B1 to B8 were marked.

09.After due trial and arguments, the Trial Court dismissed the

Suit holding that the issues No.1,5 and 7 ie.., Whether the Plaintif is in joint possession of the properties, whether the Plaintif is entitled for partition and whether the Court Fee paid by the Plaintif is correct, against the Plaintif and held that, she is not entitled for any relief and non-suited. The Trial Court further held that Defendant No.3 failed to

V ADJ, ALG. 9 AS No. 39 of 2013 & AS No.16 of 2015

prove that she is in possession and enjoyment of half of Plaint Schedule

Property as pleaded by her, and thus, the Suit was dismissed.

10.Aggrieved by the said Judgment and Decree of the Trial Court, the Plaintif preferred Appeal in A.S.No.39 of 2013.

11.The brief averments of the Grounds of Appeal are that :- The Trial Court did not properly appreciate the evidence produced; and the trial court, having rejected the admissibility of Unregistered

Relinquishment Deeds, proceeded to dismiss the Suit wrongly; the trial court did not observe that the Defendants No.1 and 2 did not take any plea of ooster of Plaintif from the possession of Plaint Schedule properties and as such, it can be treated as in exclusive possession and enjoyment of the properties by the Defendants. The trial court wrongly placed the burden upon the plaintif to prove that she is in joint possession and enjoyment of the property. Having held the other issue in favour of the

Plaintif, the issues No.1, 5 and 7 are also to be held in favour of the

Plaintif. The rejection of plea of Defendant No.3 by the trial court is proper and hence, prayed to allow Appeal.

12.The Defendant No.3 preferred Appeal in A.S.No.16 of 2015 :-

The brief grounds in the Appear are that the trial court rightly dismissed the Suit. But, it was wrongly held that Defendant No.3 failed to prove her possession. The trial Court did not properly appreciate the admissions made by the Plaintif and the Defendants in respect of sale transactions in favour of the father of Defendant No.3 and hence, prayed to allow Appeal by setting aside the Judgment of the trial court and thus prayed to dismiss the Suit in the interest of justice.

13.Heard both sides.

V ADJ, ALG. 10 AS No. 39 of 2013 & AS No.16 of 2015

14.Now the Points for consideration is :-

A].Whether the Appeal Suit are to be allowed and the Judgment and Decree of the Trial Court is to be set aside ?

B].To what relief ?

15.For the sake of convenience, both parties are referred as arrayed in the Suit, before Trial Court.

16. Point No. A :-

The Pleadings of the parties show that the Defendants No.1 and 2 admitted that themselves and the Plaintif are the daughters of one

D.Linga Reddy who owned the Plaint Schedule property. Their Pleadings further show that they admitted about their properties as pleaded by the

Plaintif. Their pleadings further show that the Plaintif relinquished her rights over some of the properties during the year 1992 under Un- registered relinquishment Deed in favour of D1 and later, over some other properties during the year 1995 under Un-registered Relinquishment Deed in favor of the husband of D2 and thus, the Plaintif lost her rights over the properties. The Defendants have shown A and B Schedules of properties in their written statement in respect of said Relinquishment

Deeds.

17.As per Plaint, the property shown in Plaint Schedule is in 10 items in diferent survey numbers with diferent extents and the total extent was shown as Ac.68-43 cents as a single plot with common boundaries. As seen from A and B-Schedule properties in written statement, it seems the defendants pleaded that the Plaintif relinquished some extent of her share in all the properties in favour of D1 and husband of D2 separately which are shown under Schedules A and B.

V ADJ, ALG. 11 AS No. 39 of 2013 & AS No.16 of 2015

18.Another important point is that the Defendants pleaded that the Plaintif received amounts and executed unregistered relinquishment deeds. On the other hand, D3 pleaded that the original owner of the property i.e., D.Linga Reddy, who is the father of Plaintif and

D1 and D2, sold his half share in the property to the father of Defendant

No.3 and later, Chinna Linga Reddy died issue less and his remaining share devolved upon his brother Pedda Linga Reddy, who is the father of the Plaintif and Defendants No.1 and 2, and thus, D3 has right over the property sold to her father by name, Chinna Venkata Reddy.

19.The evidence of Plaintif reveals that the Plaintif examined herself as PW1 and produced the office copy of legal notice, postal acknowledgements and Returned Postal cover under Exs.A1 to A3. Her evidence reveals that she did not mention the date of death of her father in her pleadings and in her evidence and her marriage was performed about 33 years ago and after 8 months of her marriage, D1 and D2 were married. The husband of D2, by name, Venkata Reddy was cultivating the part of the land. The cultivation is on behalf of the Plaintif and D1 and D2. She does not know the contents of Reply Notice. The extent of

Ac.10-00 of Plaint Schedule land kept fallow.

[a]She did not apply for Pattadar Pass Books and Title deed for the properties. She denied the execution of relinquishment deeds as pleaded by the Plaintif. She further denied that her father sold his share of property in favour of Chinna Venkata Reddy under Registered sale deed, but she deposed her father nominally executed the document, dt.

27-03-1951 in favour of Chinna Venkata Reddy.

V ADJ, ALG. 12 AS No. 39 of 2013 & AS No.16 of 2015

20.The husband of Plaintif was examined as PW2 and his evidence reveals that the husband of D1 and D2 are jointly cultivating the lands even after the issuance of Ex.A1 Legal Notice. He does not know that his father in law sold properties in favour of Chinna Venkata

Reddy under Registered Sale Deed.

21.One third party was examined as PW3 to support the plea of

Plaintif that the Plaintif also participated in the agricultural operations in the property with the help of PW3. His evidence reveals that he owned

Ac.28-00 cents of land. PW2 and himself jointly cultivated the lands. Part of Plaint Schedule property is kept fallow and Ac.20-00 cents of land is under cultivation. He does not know about the family afairs of Plaintif.

22.D1 examined herself as DW1 and her evidence reveals that herself and husband D2 are living in Uyyalawada Village and the Plaintif is residing in Yerragudi Village along with her husband. The Plaint

Schedule Property belonged to their father and after the death, they have succeeded to the property along with Plaintif. The Plaintif never studied in any School and they never resided at Mayaluru Village. The husband of

D2 is brother-in-law’s son of Lingamma who is sister of her father.

[a]She further deposed that her husband is her material uncle.

She does not know the value of the property. She did not obtain any pattadar pass book and title deed in her name. One Venkata Rama Linga

Reddy is her junior paternal uncle and Pedda Linga Reddy is her father.

The Defendants and Plaintif are legal heirs of her junior paternal uncle.

D3 is daughter of Paternal Aunt. The husband of D2 is brother of D3. The father of D1 was addicted to alcohol. D3 never cultivated the suit land.

V ADJ, ALG. 13 AS No. 39 of 2013 & AS No.16 of 2015

Her father executed the sale deed in favour of Chinna Venkata Reddy and handed over the property on 27-03-1951.

23.The second Defendant was examined as DW2 and her evidence reveals that the Plaint Schedule property is their ancestral property. The Plaintif never resided in Mayaluru Village and she is residing in Yerragudi Village. D1 and D2 are residing at Uyyalawada

Village. She did not obtain any Pattadar pass book and title deed in her name. She was not born when her father gave his half share to the father of D3.

24.D3 examined herself as DW3. Her evidence reveals that her father purchased the plaint schedule property from Pedda Linga Reddy and she is in possession and enjoyment of that property. The defendants

No.1 and 2 did not inform about the Suit to her. Chinna Linga Reddy died as Bachelor. The Plaint Schedule Properties are ancestral properties of

Pedda Linga Reddy and Chinna Linga Reddy. Her mother is elder sister of

Pedda Linga Reddy. Except mentioning that half share, no other properties were mentioned in the sale deed of her father. She did not file the original sale deed in the Court. She did not file any document of

Adangals to prove her possession. She did not file any Suit for declaration of half share. She has produced Ex.B8 Registration Extract of sale deed

Dt.27-03-1951.

25.The Defendants have produced No.3 Adangals for the faslies 1417 to 1420 under Exs.B3 to B6. Ex.B1 is Pattadar Pass Book in favour of husband of D2 and Ex.B7 is 1-B Registration Extract.

26.The evidence as discussed above, categorically show that the

Plaint Schedule properties are the ancestral properties of Plaintif and

V ADJ, ALG. 14 AS No. 39 of 2013 & AS No.16 of 2015

Defendants. D3 is no other than the daughter of sister of father of

Plaintif. It further revealed that the father of Plaintif had one brother and one sister. The evidence further disclosed that the father of Plaintif executed Ex.B8 sale Deed dt.27-03-1951 in favour of father of D3. The brother of father of Plaintif died as Bachelor, due to which, his share devolved upon the father of the Plaintif and later, the Plaintif and

Defendants No.1 and 2 succeeded to the said property.

[a]The pleadings and evidence further disclosed that the mother of D3 did not claim succession rights over the ancestral property and thus, the father and junior paternal uncle of Plaintif became absolute owners of Plaint Schedule Property being their ancestral property.

27.The Defendants No.1 and 2 and also Plaintif are female issues to the original owner i.e., their father. Defendants No.1 and 2 were given in marriage to the persons who are residents of the same village and the

Plaintif was married to a person in Yerragudi Village and has been residing therein since then. The Defendants No.1 and 2 did not plead any partition of the Plaint Schedule Properties among themselves after the death of their father.

28.Evidently, the date of death of their father was not mentioned by any of parties. The only plea taken by the defendants about the severance of joint status is, execution of Relinquishment deeds by the

Plaintif in favour of the D1 in the year 1992 and in favour of the husband of D2 in the year 1995, under Un-registered relinquishment Deeds.

29.Evidently, the said Relinquishment Deeds were not produced

before the Court. The record further shows that the Defendants preferred

a Revision Petition before the Hon’ble High Court and the Hon’ble High

V ADJ, ALG. 15 AS No. 39 of 2013 & AS No.16 of 2015

Court also rejected their prayer for admitting the said un-registered relinquishment deeds into evidence, as per the Orders in Crl.R.P.No.386 of 2011. Moreover, the Plaintif and her husband who was examined as

PW2, categorically denied the execution of any said Relinquishment

Deeds.

[a]In these circumstances, the observation of trial court that the unregistered document of relinquishment of rights of the Plaintif, are inadmissible in evidence, and thus, the defendants would not get any rights under any such inadmissible documents, and as such, the point of relinquishment of rights of Plaintif has been ruled out. Thus, the defendants have limited scope to prove the severance of joint status of the Plaint schedule properties between the Plaintif and the D1 and D2.

30.The parties are governed by Hindu Law and as such, the

Hindu Succession Act applies to them. As per section 19 of Hindu

Succession Act :- if there are two or more legal heirs who succeeded together to the property of any intestate, they shall take property per capita as tenants in common and not as joint tenants. In view of the same, the Plaintif and D1 and D2 ought to be treated as Tenants in common i.e., holding rights over the entire property with unspecified shares as co-parceners. In these circumstances, the possession of one of the share holder amounts to be the possession of all the share holders.

31.The Decision relied upon by the Plaintiff and reported

in 2016 [2] CCC 89 [Jharkhand] between Hemalatha Devi & Others

Versus Remautar Sao @ Others, in which the Hon’ble High Court

of Jharkhand referred the Judgment of Hon’ble Supreme Court of

India between Ram Sarup Gupta Versus Bishun Narain Inter

V ADJ, ALG. 16 AS No. 39 of 2013 & AS No.16 of 2015

College [1987] 2 SCC 555 and held that the possession of one co-

sharer is considered in law as the possession of all the co-sharers

or co-heirs until and unless the co-heirs bring an evidence of

open assertion of hostile title, coupled with exclusive possession

and enjoyment to the knowledge of other co-sharers…………

32.The pleadings and evidence of the defendants did not suggest that they are pleading hostile possession over the plaint schedule property against the rights of Plaintif. The specific plea of defendants is that from the date of relinquishment deeds, D1 and husband of D2 have been in exclusive possession of the share of Plaintif i.e., from 1992 and 1995 respectively. Ex.B1 is the Pattadar Pass Book of husband of D2 which discloses ten items of properties as pattadar. The nature of acquisition of the property by the husband of D2 was not mentioned in it.

Moreover, B-Schedule property, which is said to be property over which the Plaintif relinquished her rights is also not in consonance with the properties mentioned in Ex.B1.

33.Exs.B3 to B6, the Adangals also does not show the nature of acquisition of the property by the Pattadar/enjoydar mentioned in it. It was not at all mentioned that the said properties devolved as heriditory and relinquished by one of the share holder. Moreover, Exs.B3 to B6 are from the year 2007 on-wards since they related to faslies 1417 to 1420.

Evidently, the present Suit was filed in the year 2009. Ex.B7 1-B Extract which reflects the properties of husband of Plaintif is not relevant to the facts of the present case and no way helpful to the defendants to prove their exclusive rights over the property.

V ADJ, ALG. 17 AS No. 39 of 2013 & AS No.16 of 2015

34.In view of all the circumstances as discussed above, the defendants No.1 and 2 failed to prove that the Plaintif relinquished her rights over the Plaint Schedule Properties and that the Defendants No.1 and 2 have been in exclusive possession and enjoyment of the property with open assertion of hostile title and exclusive enjoyment, to the knowledge of Plaintif who is a Co-sharer. Thus, it proves that there is still joint possession of plaint schedule properties so-far-as the Plaintif and D1 and D2 are concerned and the Defendants No.1 and 2 failed to prove that the husband of D2 is a necessary party and further that the Suit is bad for non-joinder of necessary party.

35.The evidence of Plaintif and Defendants NO.1 and 2 discloses that they admit about the execution of Registered sale deed dt.27-03- 1951 by the father of the Plaintif in favour of the father of D3. Ex.B8 is the Certified copy of Registered sale deed produced by D3. Evidently, D3 did not produce the original sale deed. But, the transaction was admitted by the Plaintif, Defendants No.1 and 2.

36.A perusal of Ex.B8, shows that it was executed by Pedda Linga

Reddy infavour of Chinna Venkata Reddy. The property was shown as ancestral property and in possession of Vendor therein. The properties referred under Ex.B8 are shown in Survey Nos.103, 105, 107, 108/2, 108/4, 112 and 114, in which, half share of vendor was said to be sold and the total extent of property was shown as Ac.68-43 cents.

37.The witnesses have admitted that the Vendor under Ex.B8 is the father of the Plaintif and Defendants, and D3 is only daughter of purchaser therein. Ex.B8 further shows that the possession was also handed over for the properties sold therein, but the contents categorically

V ADJ, ALG. 18 AS No. 39 of 2013 & AS No.16 of 2015

show that the property sold was only half portion of entire property and several other properties which are not claimed by the Plaintif or

Defendants No.1 and 2 were also sold under Ex.B8. So-far-as the sale of half of Plaint Schedule Property is concerned, it was not shown with specific boundaries in respect of properties sold therein.

38.The Plaintif did not mention about the said sale of property by her father nor defendants NO.1 and 2. It is only when D3 added herself in the Suit as one of the defendant, the said fact was brought to the notice of the Court. Moreover, the plea of the Defendant No.3 is that her father and later she has been in joint possession of the properties along with other share holders i.e., Junior Paternal Uncle and thereafter, the father of Plaintif and Defendants No.1 and 2. It is fact that D3 did not produce any other evidence to prove her physical possession and enjoyment over the said half share of the property under Ex.B8 nor produced any other evidence in respect of enjoyment of her father by virtue of said sale deed.

39.However, the parties have admitted that the sale transaction took place under registered document and so also that it was executed by the father of the Plaintif. During the evidence, the Plaintif deposed that due to bad vices of her father, the village elders decided that the property to be kept in the name of the father of D3, to protect the same. The

Plaintif did not produce any evidence to prove that Ex.B8 was never intended to be acted upon and that it was only nominal document.

40.Section 48 of Registration Act provides that “ all non- testamentary documents duly registered under the said Act, and relating to any property, whether movable or immovable, shall take efect against

V ADJ, ALG. 19 AS No. 39 of 2013 & AS No.16 of 2015

any other agreement or declaration relating to such property, unless where the agreement or declaration has been accompanied or followed by delivery of possessionand the same constitutes a valid transfer under any law for the time being in force”.

41.Section 47 of the Registration Act further envisages that “ A registered document shall operate from the time at which it would have commenced to operate if no registration thereof had been required or made……….” 42.In view of the proof of Ex.B8 sale transaction and in pursuance of the Provisions of Registration Act, it is proved that the sale transaction under Ex.B8 has come into efect from the date, when it was made i.e., during 1951 itself.

43.In-so-far-as, the plea taken by the Plaintif and Defendants

No.1 and 2 in respect of Ex.B8 sale transaction is concerned, the plaintif or defendants No.1 and 2 did not produce any evidence to prove that

Ex.B8 sale transaction was meant to be a nominal document and it was not intended to be acted upon.

44.As already discussed above, the date of death of the father of the Plaintif was not mentioned by any of the parties to the Suit. There was no dispute in respect of the properties and their enjoyment during the life time of father of the Plaintif, as per the pleadings and evidence of parties. Ex.B8 sale transaction was of the year 1951. The plea of Plaintif shows that it was benami transaction and purchaser thereunder, did not get any rights over the property.

V ADJ, ALG. 20 AS No. 39 of 2013 & AS No.16 of 2015

45.Section 4 of Benami Transactions [Prohibition] Act, 1988 [original enactment] provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property……………… No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

[a]But, exceptions are given in respect of coparcerner and trust, which is not applicable to the facts of the present case. .

46.Under Act-43 of 2016 amendments were introduced in Benami transactions [Prohibition] Act and as per the amendment Act, several other exceptions are given including the Kartha and Hindu undivided family and person being spouse, brother or sister or lineal ascendant or descendant where the owner of the property is not aware of, or, denies knowledge of, such ownership, etc., 47.The facts of the present case are not included in the said exceptions. In these circumstances, the Plaintif cannot plead that the sale transaction under Ex.B8 is only a nominal document and no such transaction was acted upon etc., Moreover, the evidence of Plaintif itself categorically prove that the villagers have knowledge about the sale transaction executed by the father of the plaintif in favour of the father of

D3. No such villagers were examined to prove that it was only nominal, but it is proved that sale transaction is within the knowledge of all.

V ADJ, ALG. 21 AS No. 39 of 2013 & AS No.16 of 2015

48.For all the reasons discussed above, it is proved that some part of the Plaint Schedule Property was sold under Ex.B8 and as such, the Plaintif or Defendants No.1 and 2 have no right to claim the property sold under Ex.B8. It is also further proved that D3, being the sole Legal

Heir of purchaser of property under Ex.B8, is proved to be in joint possession of the plaint schedule property to the extent of the share sold under Ex.B8.

49.These circumstances further proved that the plea of the

Plaintif that she has been in joint possession of the Plaint Schedule property being the Legal Heir of the original owner stand proved and as such, the Court Fee paid by the Plaintif under section 34[2] of A.P.C.F. &

S.V. Act is correct. Hence, the Plaintif proved and Issue No.1 is to be held in her favour and so also Issue No.7. In-so-far-as Issue No.5 is concerned, it is proved that the Plaintif is not entitled for partition of entire Plaint

Schedule Property, but she is entitled for share in the half part of the

Plaint Schedule property and the Defendant No.3 is proved to be in rightful joint possession over the remaining half share of the property and as such, the Suit is to be dismissed for the remaining half share.

50.Defendant No.3 did not make any counter claim to declaration of her rights over the property sold to her father under Ex.B8 nor pleaded for separate possession of the property in the present Suit. Except, pleadings of the joint possession over the property, D3 did not make any such specific claim in the Suit for partition filed between the family members. As such, though the joint possession of D3 is proved, she is not entitled to get any specific share in the present Suit and she has to take necessary legal steps to claim the said relief, through due process of law.

V ADJ, ALG. 22 AS No. 39 of 2013 & AS No.16 of 2015

51.D3 filed Appeal Suit No.16 of 2015 praying for dismissal of the suit ultimately, which is the decision given by the Trial Court. D3 pleaded that her joint possession over the property is to be confirmed by the

Court, as per the relief prayed in the Appeal. The additional issue to the efect as to whether the third defendant is in possession and enjoyment of the half of the Plaint Schedule Property, as pleaded by her is to be answered in her favour and to that efect the Judgment of the trial court is to be set aside.

52.For all the reasons discussed above, both Appeal Suits are to be allowed, the Judgment of the trial Court, dt.25-07-2013 is to be set aside. As per the Appeal of Defendant No.3 in A.S.No.16 of 2015, the

additional issue framed by the trial court is held to be in favour of D3. As

per Appeal of Plaintif, in A.S.No.39 of 2013, the Issues No.1 and 7 are held in favour of Plaintif. So-far-as, issue No.5 is concerned, it is held that the Plaintif is entitled for Partition of half of the plaint schedule properties in all the survey numbers, in which she is entitled for 1/3rd share. As such, the Suit is to be partly decreed preliminary to that efect.

Hence, this Point is answered accordingly.

Point No.B 53.In the result, the Appeal Suit No.39 of 2013 and Appeal Suit

No.16 of 2015 are allowed and no Order as to costs in the Appeal Suits, and the Judgment and Decree of the Trial Court i.e., Senior Civil Judge

Court, Allagadda, passed in O.S.No.18 of 2009, Dt.25-07-2013 is set- aside.

Consequently, the Suit in O.S.No.18 of 2009, on the file of Senior

Civil Judge’s Court, Allagadda, is herebyPARTLY DECREED

V ADJ, ALG. 23 AS No. 39 of 2013 & AS No.16 of 2015

PRELIMINARY for half of the Plaint Schedule Property, in which, the

Plaintif is entitled to 1/ 3rd share and for separate possession of the same. The Suit in-so-far-as remaining half of Plaint Schedule Property is concerned, is hereby dismissed. In the circumstances, the Parties do bear their own costs in the Suit.

Dictated to the Stenographer, transcribed by him corrected and

pronounced by me in open court on this the 27th day of December, 2018.

V-ADDITIONAL DISTRICT JUDGE,

ALLAGADDA.

APPENDIX OF EVIDENCE

- NIL -

V ADJ, ALG.

Copy to the Senior Civil Judge’s Court, Allagadda.

S.C.No.140 OF 2016 1 A.A.S.J. Court, Kurnool.

IN THE COURT OF THE ADDITIONAL ASSISTANT SESSIONS

JUDGE, KURNOOL.

Present: Smt.P.Lakshmi Sarada,

Additional Assistant Sessions Judge, Kurnool.

Monday, the Twenty Third [23rd] day of July, 2018.

SESSIONS CASE No.140 OF 2016

The State, represented by the Sub-Inspector of Police,

Kurnool I-Town P.S.… COMPLAINANT.

- Versus -

1. Tafazzul Ali

2. Ali Basha

3. Mohammed Ali

4. Raza

5. Sanju

6. Syed Ali Hussain @ Ali Bhai

7. Askari Begum

8. M.Akbar Ali

9. M.Ali Sher

10. Zabeen Fathima … ACCUSED.

* * * * * *

This Case, coming on 20.07.2018, for hearing before me in the presence of The Additional Public Prosecutor of this Court, for the

Complainant, and of Sri M.Y.Ramaiah, Advocate for the Accused No.1 and of Sri Abdul Kareem, Advocate for the Accused No.2 to 10, and after hearing both sides, and upon having perused the entire material available on record, and having been stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1.This Sessions Case, arises out of P.R.C. No.3 of 2009, on the file of the Court of the Judicial Magistrate of First Class, Kurnool, in

Crime No.105 of 2008 of Kurnool I-Town Police Station, under Sections 498-A, 384, 494, 307, 323 r/w 34 of I.P.C., which has been committed to this Court, by the Hon’ble Principal District Sessions Court, Kurnool.

2.The brief averments in the charge sheet are that the complainant Vazeer Unnisha Begum was given in marriage to A1 on

S.C.No.140 OF 2016 2 A.A.S.J. Court, Kurnool.

4.3.1990 at that time her parents gave Rs.1,00,000/- and 10 thulas of gold and household articles worth Rs.25,000/- to A1 and his mother A7 as dowry, on their demand. After marriage, the complainant joined A1 and residing at their house at Bekarikatta, Kurnool, along with A7 and brothers-in-law A2 & A3.

(a) After six months of her marriage A1 started harassing her demanding for additional dowry of Rs.50,000/- to put up fancy shop and the same was fulfilled by the parents of complainant i.e., Syed

Haleemunni Begum & M.M.Hasan (LWs.3 & 4). On 14.7.1991 complainant was blessed with female child who is Abidunnisa Begum (LW.2). Since then, A1 to A3 & A7 were harassing her pointing that she did not give birth to male child. Due to loss sustained in the fancy shop business A1 shifted his family to Warangal in 1996. The parents of complainant fulfilled the demand of additional dowry of Rs.50,000/- to put up fancy shop at Warangal also. Even then at the instigation of A2,

A3 & A7 continued to harass the complainant for a male child and was also stating that he would perform second marriage.

(b) On 22.5.2008 at 12 midnight, A1 along with A4 to A6 went to the house of complainant to kill her and her daughter and forcibly took her signature on white paper and went away. Later, A1 to A3 and A7 subjected her to cruelty. During last week of June, 2008 complainant was necked out of the house by the Accused. Because of life threat in the hands of accused complainant went to the house of her parents and residing therein. A1 married A8 as second wife with the help of A2, A3 and A7.

(c) On 25.8.2008 at 10.30 AM, A1 & A3 along with A8 & A9 went to the house of complainant in Ameer Buildings. A1 & A3 went into the house while A9 & A10 waited outside the house watching the movement

S.C.No.140 OF 2016 3 A.A.S.J. Court, Kurnool.

of others, A1 threatened the complainant to see her end and her parents, if they objected for the second marriage and beat the complainant on her face with hands. The daughter of complainant-LW.2, tried to intervene, on which, A1 took out the knife and attacked on their daughter and caused injuries on her neck and cheek with intention to kill her. The parents of complainant witnessed the incident and raised cries.

The accused fled away from that place. Later, the complainant lodged a report before the Kurnool I-Town Police Station.

(d) The Sub-Inspector of police registered a case in Cr.No.104 of 2008 under Sections 498(A), 384, 494, 307, 323 R/w 34 of I.P.C. and investigated the matter. The Medical Officer who treated the daughter of complainant, issued wound certificate opining that the injuries were simple in nature. A8 & A9 were arrested on 30.10.2008 and produced

before the Court for judicial custody. A1 surrendered before the Court

and was released on bail. A2, A3, A4 to A7 obtained anticipatory bail from High Court in Crl.M.P.No.5620/2008 dt.12.9.2008. A10 is absconding. The investigation revealed the commission of offences by the accused and hence the charge sheet.

3.After hearing both sides, and consideration of the records under Section 228 of Cr.P.C., this Court found sufficient material to charge the Accused for the offences alleged against them. Hence, the

Charges under Sections 498-A, 494, 506, 384, 307, 323 of I.P.C. were framed against the Accused No.1, under Sections 498-A & 494 R/w 109 of I.P.C. were framed against the Accused No.2 & 7, under Sections 498-

A & 494 R/w 109, 307 r/w 34 & 323 R/w 34 of I.P.C. were framed against the Accused No.3, under Sections 506 & 384 of I.P.C. were framed against the Accused No.4, 5 & 6, under Sections 307 r/w 34 & 323 r/w 34 of I.P.C against the Accused No.8 & 9 and under section 494

S.C.No.140 OF 2016 4 A.A.S.J. Court, Kurnool.

r/w 109 of I.P.C. against Accused No.10, and were read over and explained to the Accused in Telugu, and the Accused had pleaded not guilty, and claimed to be tried.

4.On behalf of the Prosecution, PWs.1 to 6 were examined and

Exs.P1 to P4 were marked. No evidence produced on behalf of accused.

5.During the examination of the Accused under Section 313

Cr.P.C., regarding the incriminating material available against them in the evidence of the Prosecution Witnesses, the Accused had denied the same. The Accused had submitted that they have no evidence on their behalf.

6.Heard both sides. Both sides filed written arguments.

7.The Point for determination is whether the Prosecution

has established the guilt of the Accused No.1 to 10 for the

offences charged against them, beyond all reasonable doubt?

8. POINT:

(1) The case of the prosecution as unfold by the prosecution witnesses is that PW.1 is the complainant and her evidence reveals that her marriage was performed with A1 on 4.3.1990 as per Muslim

Customs and Traditions. Her parents gave Rs.1,00,000/-as dowry and 10 thulas of gold and household articles worth Rs.25,000/-. At the time of marriage A1 was unemployee. She joined A1 at Bekarikatta, Kurnool at his house and they lived happily for six months. She discontinued her graduation.

(a) Her parents have five daughters and five sons. She did not lodge any report when A1 harassed her after six months of marriage.

She did not mention in her report that A1 necked her out of the house demanding for Rs.50,000/-. After she returned to her parents house, her parents called A1 and gave the amounts. He does not know whether the

S.C.No.140 OF 2016 5 A.A.S.J. Court, Kurnool.

Fancy Shop of A1 was started at Kurnool. She is a parda nasheen lady and she does not know about the out side activities and the ladies in their house will not be informed about the same in their community.

(b) In Warangal they have changed about 10 hours and as such she cannot say the exact locality of their residence. She did not lodge any complaint against A1, his friends at Warangal Police Station. She resided at Warangal upto 2008. A3 was also living along with them in one house. She did not file any document to show that A1 performed second marriage with A10. Her daughter scribed the written complaint on her instructions and as such, it was written in English language. A1 owns a house at Bekarikatta, Kurnool. Her daughter filed a case under section 498-A IPC against her husband. Her daughter died because of burnt injuries as she caught fire accidentally while cooking. A1 harassed her daughter by filling up the ears of her in-laws. PW.1 is not willing to join her husband.

(2) The mother of PW.1 was examined as PW.2. her evidence reveals that their family is depending upon the income from the medical shop and rents of the house which is sufficient for the maintenance of the family including their education. A1 demanded for the amounts and the parents of PW.1 paid it and as such, the necessity of holding any panchayath did not come up. She does not know the exact location of the fancy shop started by A1.

(a) PW.1 gave birth to a son who died later, but she does not know how many days he survived. She paid amount of Rs.50,000/- on 10th May, but she cannot say the year. PW.1 and A1 lived at Warangal for about 8 to 10 years till June, 2008. There are five floors in Ameer buildings. At the time of incident, they lived in upper floors, but she cannot say the number of floors. They are residing in ground floor at the time of her examination. She cannot say the names of neighbours at the time of

S.C.No.140 OF 2016 6 A.A.S.J. Court, Kurnool.

incidents. She admitted that only after ascertaining identity, the Muslim ladies will open the doors of their house, unless the person is a known person.

(b) At the time of incident, PW.2 and her husband were present in the house. She did not go along with PW.1 and her daughter when they went to police station. She cannot say the details of the hospital where the daughter of PW.1 was given treatment. She does not know the education of the PW.1. Daughter of PW.1 died.

(3) The Corporator of Ward No.50 at Kurnool was examined as

PW.3. His evidence reveals that he is a resident of same locality as that of PW.1 & PW.2. He had acquaintance with brother of PW.1. The brother of PW.1 used to inform to PW.3 that A1 and A7 were harassing PW.1.

(a) On 25.8.2008 he visited the locality of PW.1 on official work to enquire about the drinking water facility. At that time, he went to the house of PW.1, which is at fifth floor and he found A1, A3, A8 & A9 were quarreling with PW.1 and he heard A1 stating that A1 performed second marriage and he does not require PW.1 and if PW.1 interferes he would kill her. PW.3 further witnessed that A1 fisted the face and back of PW.1.

At that time, the daughter of PW.1 came to rescue PW.1, on which A1 cut her throat and right cheek with a knife and on hearing the shouts several persons gathered and the accused fled-away there.

(b) His evidence further reveals that he is resident of Lal Bahadur

Sastry Nagar, Kurnool and the distance between the residence of PW.1 and residence of PW.3 is a road with half kilometer distance. He did not inform the purpose of his visit to the police. Ameer building consists of five floor and there are four houses in each floor. Entire 5th floor was occupied by PW.1, her parents and other family members. There are 10 to 15 members in their family. The incident took place near the stair case out side the house of PW.1. Jafar Saheb is residing at 4th floor,

S.C.No.140 OF 2016 7 A.A.S.J. Court, Kurnool.

Jayachandra and Vishnuvardhan are also residing at 4th floor who came to PW.1 on hearing her cries. PW.1 took away the injured Abidunnisa

Begum by an Auto, but he does not know where she had gone.

(4) The elder brother of PW.1 was examined as PW.4. His evidence reveals that he studied B.U.M.S.,. His father was running a medical shop. He went to Warangal twice in June and July months and pacified the matter between PW.1 and A1. He does not remember the area in which A1 and PW.1 were residing at Warangal. The incident of fisting

PW.1 and cutting the throat of her daughter, took place at 5th floor of

Ameer building. By the time of his arrival, A1 was dragging PW.1 towards Balcony. They follow parda system in their community. He is running hospital by name M.H.Hospital, Kurnool. A theft took place at the house of his father situated at first floor of Ameer building and stolen property was recovered.

(5) PW.5 is said to be resident in a portion of fourth floor at Ameer building. His evidence reveals that the parents of PW.1 informed him that PW.1 was harassed by A1 and also A1 demanded for dowry etc.,. On 25.08.2008 he was present at Ameer building and discussing about an issue in respect of repair works of Municipal water. He found that A1 and his brothers went to upstairs of Ameer building and they heard shouts and cries from the house of PW.2 and immediately they went to the house of PW.2 and found that A1 was beating PW.1 and when the daughter of PW.1 came to rescue her, A1 caused injuries to her neck and cheek with small knife. PW.5 and others tried to catch A1, but they escaped. He does not know whether PW.1 was taken to Hospital or not.

His residence in his statement to police was mentioned as house

No.62/199 which is besides Ameer building and the address is correct.

He was studying degree second year when the incident took place.

Another witness Jayachandra was also a student along with him at STBC

S.C.No.140 OF 2016 8 A.A.S.J. Court, Kurnool.

Degree College, Kurnool. He was present at ground floor at the time of incident.

(6) The Investigating Officer was examined as PW.6. His evidence reveals that the date of offence was 25.08.2008 at 10.30 AM and complaint was lodged on 26.08.2008 at 7.00 PM and the reasons for the delay was not mentioned in FIR. PW.1 was not injured and she was not sent for medical treatment. He did not collect any record to show that

A1 performed second marriage with A10. He does not know how many floors are there in Ameer building. The scene of offence is on road. PW.5 is residing in the house besides the Ameer building. A4 to A6 are residents of Warangal district. He did not make any investigation by going to Warangal. As per Ex.P2 FIR, A1 to A7 were only shown as accused and during investigation, A8 to A10 were also made as accused.

9. The offences alleged against the accused are that A1 harassed

PW.1 mentally and physically demanding for additional dowry and also for not giving birth to a male child and that A1 performed second marriage with A10 during subsistence of marriage with PW.1 and other accused co-operated with A1 and further that on 22.5.2008, the accused threatened PW.1 and her daughter to kill them and forcibly obtained the signature of PW.1 on a white paper and further on 25.8.2008 A1, A3, A8 & A9 went to the house of PWs.1&2 and tried to kill the daughter of

PW.1, by attacking with a knife and causing injuries and thus committed attempt to murder and also caused hurt to PW.1.

10. Ex.P1 is the Report lodged by PW.1. As per the evidence of

PW.1, Ex.P1 report was prepared by her daughter and she signed on it. A perusal of Ex.P1 shows that it was dated 26.08.2008 and the incidents from the date of marriage, giving out dowry and household articles and the harassment were all mentioned. It was also mentioned that the daughter of PW.1 was born on 14.07.1991 and during 1995, PW.1 gave

S.C.No.140 OF 2016 9 A.A.S.J. Court, Kurnool.

birth to a male child, unfortunately he died due to non-providing proper food and medical care and later in 1996, PW.1 and A1 shifted to

Warangal. It was further mentioned that the parents of PW.1 gave

Rs.50,000/- at two times to A1 for starting fancy shop, once at Kurnool and once at Warangal. On 22.5.2008 A4, A5 & A6 came to their house at

Warangal and threatened to kill PW.1 and then her signatures were obtained on white paper and she was necked out of the house, with her daughter and they have come to Kurnool to the parents house of PW.1.

On 25.08.2008, in the morning A1 and his brother i.e., A3 came to their house and he beat PW.1 and cut the throat of her daughter with a knife and as such requested to take action.

11. The evidence of PW.1 revealed that the daughter of PW.1 who was cited as list of witnesses No.2, was no more and she died due to burn injuries. Her evidence further reveals that her daughter filed a case under section 498-A IPC against her husband, which infers that the daughter of PW.1 was married. The date of marriage or date of death of daughter of PW.1 were not mentioned in the evidence of PW.1. Thus, the crucial witness i.e., the injured in this case is no more and her evidence could not be brought to record before the Court.

12. Ex.P4 is the wound certificate of daughter of PW.1. The evidence of investigating officer, who was examined as PW.6 shows that the Doctor who treated the daughter of PW.1 could not be found and his whereabouts are not known. As such, the Doctor was not examined

before the Court. Ex.P4 wound certificate shows that the injured was

Syed Abidunnisa Begum i.e., daughter of PW.1, aged 17 years by then.

She was brought by PC.2327 to the Hospital on 26.08.2008 at 8.15 PM.

It was further mentioned that the injury was caused on 25.08.2008 at 10.30 AM at their residence.

13. The injuries shown under Ex.P4 are, an abrasion over route of

S.C.No.140 OF 2016 10 A.A.S.J. Court, Kurnool.

the neck on left side with the size of 5x1 cms and another abrasion of 3x1 cms over right scapular region. Another abrasion was also seen on right cheek measuring 4x1 cm and 4th abrasion injury over the neck on left side measuring 4x1 cms. All the injuries are said to be simple in nature by the date of issuing Ex.P4 wound certificate on 5.11.2008.

14. So far as the incident dated 25.08.2008 is concerned, as discussed above, the injured was not alive to speak about the facts. PW.1 deposed that A1 & A3 came to her parents house and attacked upon

PW.1 and her daughter and PW.1 was beat by A1. The evidence of PW.2, who is mother of PW.1 is that on the date of incident, PW.1 came to their house and threatened, beat PW.1 and cut the throat of his daughter and also upon her right cheek and ran away from that place, on seeing PW.2 and others. She did not give the number of the floor in which they are residing at the time of incident, but her evidence reveals that they are residing at ground floor and on the date of incident they were at upper floor. PW.1 also did not give the floor, in which they are residing in that building when the incident took place.

15. PW.3 is not a resident of that building. He, being a Corporator of the Ward, came to visit PW.1 family, in respect of water supply issue, as per his version. However, he admitted that during his statement to police, he stated that he came to visit his friend i.e., the brother of PW.1 and he deposed that both the facts are correct. As per his version, he directly witnessed A1 and A3 beating PW.1 and attacking upon her daughter with knife.

16. His evidence further revealed that Pws.2 & 3 were shifted to hospital, PW.4, the brother of PW.1 deposed that he is residing at

Chidambara Rao street which is adjoining area to the scene of offence.

By the time of his arrival, A1 was dragging PW.1 to the Balcony at 5th floor of Ameer building and as per his version, he was a direct witness to

S.C.No.140 OF 2016 11 A.A.S.J. Court, Kurnool.

the attack upon PW.1 and also her daughter. His evidence further reveals that he was at 4th floor when the incident took place while he was talking to tenants and PW.3. PW.5 was also a witness for the same incident, as per the prosecution case.

17. However, the evidence of PW.5 reveals that though he stated that he is a tenant in Ameer building at 4th floor, he admitted that he is a resident of an adjoining house, to Ameer building with Door No.62/199 and thus, it revealed that PW.5 is not coming out with true facts about his residence particulars. He is an hearsay witness, in respect of all other incidents, except the incident where he found A1 coming to Ameer building and threatening and beating PW.1 and attacking upon her daughter with knife.

18. His evidence reveals that he stated that he was at ground floor, when the incident took place and again he deposed that he was at his floor and discussing about the matter, when the incident took place.

However, his evidence itself revealed that he is not a resident of that building, but he is a resident of adjoining house. As per the evidence of the investigating officer i.e., PW.6, the incident took place in front of

Ameer building i.e., on road. The investigating officer further drawn a rough sketch of scene of offence, which is Ex.P3, which reflects the scene of offence as Ameer building.

19. The important factor to be appreciated here is, several eyewitnesses, relatives of victim and injured and so also a peoples representative i.e., Corporator of the Ward, were present at the time of incident and witnessed the incident, as per their version. However, none of the witnesses have accompanied PW.1 or her daughter to the Hospital, immediately after the incident. None of these witnesses have taken any steps to bring the incident to the notice of the police, to take criminal action in respect of the offence committed by the accused.

S.C.No.140 OF 2016 12 A.A.S.J. Court, Kurnool.

20. All the witnesses have remained at their place when the incident took place. Though, the evidence of PW.1 revealed that after the incident, she went to Hospital along with her daughter and took treatment, no such evidence was produced before the Court, in respect of the said treatment.

21. Ex.P1 reveals that on the next day of incident i.e., on 26.08.2008 at about 7.00 PM, the injured herself scribed a detailed report, which was signed by PW.1 and lodged before the police and upon the action of the police, the daughter of PW.1 was sent to Government

Hospital for treatment, after lodging the report. Then, the Doctor examined PW.2 and narrated the injuries found upon the daughter of

PW.1 and recorded in Ex.P4.

22. The whereabouts of the Doctor was not known and thus the wound certificate of daughter of PW.1 was marked through the investigating officer. The wound certificate further reveals that there were abrasions on the neck and cheek, which were found to be simple in nature. Though, the evidence of PW.1 reveals that she was indiscriminately beaten by A1, she was not examined by the medical officer and her physical status was not preserved on the date of lodging report. No efforts were made by Investigating Officer, to trace out the crime weapon said to have been used by A1.

23. On the other hand, the evidence of PW.6 revealed that PW.1 did not receive any injuries and as such, she was not referred for medical treatment. All these circumstances, raises several doubts in respect of occurence of the incident and the circumstances as discussed above further raises several doubts, in view of the absence of the natural reaction by the witnesses cited by prosecution and in view of their responsible positions in the society, to protect the public and to put the criminal law into motion, immediately on detecting the offence.

S.C.No.140 OF 2016 13 A.A.S.J. Court, Kurnool.

24. The evidence of the prosecution witnesses as discussed above, is contrary to each other and also found to be false on material grounds as discussed above. The evidence of all the prosecution witnesses, including that of PW.1, is not inspiring the confidence of the court, to prove the said incident of attacking PW.1 or her daughter, as mentioned by the prosecution witnesses.

25. In so far as the offences of harassment, imposing cruelty for

additional dowry and for want of male child, the evidence reveals that

except PWs.1, 2 & 4, the evidence of PWs.3&5 is hearsay evidence in respect of the giving of dowry etc.,. PW.4 is none other than the brother of PW.1. As per the evidence of PW.1 & PW.2, dowry, gold and household articles were given as Jahez at the time of marriage which took place on 4.3.1990. The evidence of PW.1, PW.2 and PW.4 categorically shows that the marriage was performed strictly as per Muslim customs and traditions.

26. As per the Muslim customs, which the Court can take judicial notice of, is that whenever Jahez articles and other items are given, they will be listed by both the parties and it will be placed as record of marriage, with the parties as well as the Masjid under the supervision of which the marriage took place. However, the prosecution did not produce any evidence to prove that any such Jahez articles are given at the time of marriage.

27. The initial burden is upon the prosecution to prove the circumstances and the capacity of the parties, who said to have given the dowry and other items. In the present case, it is revealed that the income of father of PW.1 is barely sufficient for their needs and there is no proof of gathering of such items and giving them for the marriage of

PW.1. It is further revealed that A1 is none other than the son of brother of PW.2 and they are all relatives even prior to the marriage of PW.1 and

S.C.No.140 OF 2016 14 A.A.S.J. Court, Kurnool.

A1. In these circumstances, the giving of dowry at the time of marriage of PW.1 is not at all proved by the prosecution.

28. The evidence of Investigating Officer i.e., PW.6 further reveals that he did not go to Warangal, where PW.1 and A1 said to have lived for a long time from 1996 till 2008 and where harassment and demand for dowry took place. PW.6 did not give the reasons as to why no enquiry or investigation was made at Warangal, though it was specifically mentioned in Ex.P1 that PW.1 was threatened at Warangal and was necked out of the house in the month of May, 2008. Except PW.1 even

PW.2 or PW.4 have no knowledge as to what happened at Warangal between PW.1 & A1.

29. Except the oral evidence of PW.1, PW.2 and PW.4, there is no other cogent evidence produced by the prosecution. Even the other near relatives of prosecution witnesses as well as the accused were also not enquired by IP and not examined before the Court, to prove any disputes between PW.1 and A1. Though, PWs.1 & 2 deposed that they are strictly following the pardanashin system as per their custom, it is revealed in the evidence of prosecution that PW.1 and her daughter were also educated and thus they have worldly knowledge. PW.1 failed to give even their residential addresses at Warangal, where they resided. Thus, the evidence of PW.1 is very vague and rather brings to conclude that PW.1 is not coming out with true facts.

30. The accused No.4 & 5 are added only upon the incident said to have taken place at Warangal, wherein they, along with accused No.1 to 3, threatened PW.1 and necked her out of the house, after obtaining her signatures on white paper. These incidents were not substantiated by prosecution with any cogent evidence, except the evidence of PW.1.

Even, PWs.1 and 4 are not witnesses to the incidents that took place at

Warangal. In these circumstances, the harassment demand for additional

S.C.No.140 OF 2016 15 A.A.S.J. Court, Kurnool.

dowry and the necking out of PW.1 and her daughter from the house of accused at Warangal, is not at all proved.

31. The entire evidence produced by prosecution consists ambiguity and vagueness in respect of the incidents alleged against the accused and none of the prosecution witnesses, including PW.1, gave reasonable and firm evidence in respect of the incidents alleged by her against the accused. Apart from all the above, there is no iota of evidence produced by the prosecution in respect of the second marriage of A1 with A10. Except the statement of PWs.1,2 & 4 that, it is the self- made statement of A1 that he performed second marriage, there is no iota of evidence in respect of the second marriage of A1.

32. In view of the circumstances as discussed above, the prosecution failed to prove the happening of any such incident on 25.8.2008, to give any cause to lodge Ex.P1 report and the other acts of the accused, which form the offences, are not at all proved. In these circumstances, the evidence of prosecution does not prove the threats given by accused to PW.1 either on 22.5.2008 or 25.8.2008 and thus, the prosecution failed to prove the charges leveled against the accused.

33. For all the reasons discussed above, the prosecution failed to prove the guilt of the accused for the offences charged against them.

Hence, the Point is answered against the Prosecution.

34. In the result, the Accused No.1 is found not guilty for the offences under Sections 498-A, 494, 506, 384, 307 & 323 of the Indian

Penal Code, A2 & A7 are found not guilty for the offences under Sections 498-A & 494 R/w 109 of I.P.C., A3 is found not guilty for the offences under Sections 498-A, 494 r/w 109, 307 r/w 34 & 323 r/w 34 of I.P.C., A4,

A5 & A6 are found not guilty for the offences under Sections 506 & 384 of I.P.C., A8 & A9 are found not guilty for the offences under Sections 307 r/w 34 & 323 r/w 34 of I.P.C., and A10 is found not guilty for the

S.C.No.140 OF 2016 16 A.A.S.J. Court, Kurnool.

offence under Section 494 r/w 109 of I.P.C., and they are acquitted for the same under Section 235(1) of the Criminal Procedure Code.

The bail bonds of the Accused No.1 to 10, along with the sureties, shall remain in force for 6 months from the date of this Judgment under

Section 437-A of Cr.P.C.

The unmarked Property, if any, shall be destroyed after the expiry of appeal time.

Dictated to the Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open Court, on this the 23 rd day of July, 2018.

Sd/- Smt.P.Lakshmi Sarada

ADDITIONAL ASSISTANT SESSIONS

JUDGE, KURNOOL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION

PW1: Syed Vazeerunnisa Begum PW2: Syed Haleemunnisa Begum PW3: S.Mahesh PW4: Meer Mohammed Ali Bin Hasan PW5: E.Vishnu Vardhan Goud PW6: M.Srinath Reddy

WITNESSES EXAMINED ON BEHALF OF THE DEFENCE

None.

EXHIBITS MARKED ON BEHALF OF THE PROSECUTION

Ex.P1: Report of PW.1 given to Police. Ex.P2: Original FIR. Ex.P3: Rough sketch. Ex.P4: Wound Certificate of Abidunnisa Begum.

EXHIBITS MARKED ON BEHALF OF THE DEFENCE

-Nil-

MATERIAL OBJECTS MARKED ON BEHALF OF THE

PROSECUTION

NIL.

Sd/- Smt.P.Lakshmi Sarada

ADDITIONAL ASSISTANT SESSIONS

JUDGE, KURNOOL.

//True copy//

ADDITIONAL ASSISTANT SESSIONS JUDGE,

KURNOOL.

S.C.No.140 OF 2016 17 A.A.S.J. Court, Kurnool.

Fair Judgment

S.C.No.140 of 2016

Dt. 23.07.2018

S.C.No.140 OF 2016 1 A.A.S.J. Court, Kurnool.

TABULAR STATEMENT UNDER RULE 67 OF CRIMINAL RULES

OF PRACTICE.

IN THE COURT OF THE ADDITIONAL ASSISTANT SESSIONS

JUDGE, KURNOOL.

Present: Smt.P.Lakshmi Sarada,

Additional Assistant Sessions Judge, Kurnool.

Monday, the Twenty Third [23rd] day of July, 2018.

SESSIONS CASE No.140 OF 2016

1. Name of the Police Station and :Kurnool I-Town P.S. Crime Number.Crime No.105 of 2008.

2. Sessions Case No.:S.C. No.140 of 2016

3. Section of Law:Under Sections 498-A, 384, 494, 307, 323 r/w 34 of IPC

4. Name of the Accused:1. Tafazzul Ali, Son of Abdul Hasan,residentof Bekarikatta,Kurnool.

2. Ali Basha, son of Abdul Hasan, Bakarikatta, Kurnool.

3. Mohammad Ali, son of Abdul Hasan, Bekarikatta, Kurnool.

4. Raza, Son of Hyder, age 30 years,H.No.7-7-750, Kapuwada,Hanmakonda, Warangal District.

5. Sanju, Son of Hasan Mirza, age 45 years, H.No.6/7/114, K.Z.P.,Hanamkonda, Warangal District.

6. Syed Ali Hussain @ Ali Bhai, age 45 years, H.No.7-5-57, Kapuwada,Hanmakonda, Warangal District.

7. Askari Begum, Wife of Abdul Hasan,age62years, Bekarikatta, Kurnool.

8. M.Akbar Ali, son of M.Abdul Hassan, age 35 years, H.No.17/139,R.K.Street, Kurnool.

9. M.Ali Sher, Son of M.Abdul Hassan, age 28 years, H.No.1- 291, Bekari Katta, Kurnool Town.

10. Syed Firdose Fathima, Wife of Mir Thafazul Ali, age 30 years,H.No.17-3-307, Mirthuzanagar, Hyderabad.

S.C.No.140 OF 2016 2 A.A.S.J. Court, Kurnool.

5. Date of occurrence of Offence:25.08.2008

6. Date of Complaint :26.08.2008

7. Date of apprehension of :06.09.2008 (A1) 15.09.2008 (A2 to A7) Accused 30.10.2008 (A8) 19.02.2010 (A9, A10)

8. Date of release of Accused:16.10.2008 (A1) 15.09.2008 (A2 to A7) 04.11.2008 (A8 & A9) 08.03.2010 (A10)

9. Date of Commitment of Case:31.07.2013

10. Date of Commencement of :05.02.2018

Trial

11. Date of Closure of Trial:11.06.2018

12. Date of Sentence or Order:23.07.2018

13. Explanation for delay:(a) As stated in the Diary Extract in the P.R.C.No.3 of 2009, by the Learned Judicial

Magistrate of First Class,

Kurnool.

(b) The records in P.R.C. No.3 of 2009 on the file of the Court of the Judicial Magistrate of First Class, Kurnool, were submitted to the Court of Principal Sessions Judge, Kurnool on 31.07.2013, and the same was numbered as Sessions Case No.140 of 2016 by the Hon'ble

Principal Sessions Judge, Kurnool, for the offences under Sections 498-A,

384, 494, 307, 323 R/w 34 of IPC, and was made over to this Court for disposal according to law. The same was taken on file of this Court on 20.05.2016. The Accused appeared before the Court on 20.06.2016. On 30.08.2017, after hearing both sides and perusing the records, Charges under Sections 498-A, 384, 494, 307, 323 r/w 34 & 506, IPC were framed against the Accused. Trial Schedule was fixed on 13.12.2017, on 5.02.2018, PW1 was examined, on 07.02.2018 PW.2 was examined, on 12.02.2018 PW.3 was examined, on 27.02.2018 PW.4 was examined, on 13.3.2018 PW.5 was examined and on 11.06.2018 PW.6 was examined. Evidence of LW.10 was given up by the Additional Public Prosecutor. On 20.06.2018, the Accused were examined under Section 313, Cr.P.C., regarding the incriminating material available against them, and they denied the same. Hence, on the same day, the Defence side evidence was closed, and the Case was posted for Arguments. Both the Additional Public Prosecutor, and the Counsel for the Accused took adjournments from time to time and they had submitted Arguments on 13.07.2018 & 20.07.2018 respectively and the case was posted for Judgment. Judgment was pronounced 23.07.2018.

Sd/- Smt.P.Lakshmi Sarada

Additional Assistant Sessions Judge,

Kurnool.

S.C.No.140 OF 2016 3 A.A.S.J. Court, Kurnool.

Copies submitted to:

1. The Hon'ble Registrar (Judicial), Hon'ble High Court of Judicature for the State of Telangana and the State of Andhra Pradesh, Hyderabad, through the Hon'ble Principal Sessions Judge, Kurnool.

2. The Hon'ble Principal Sessions Judge, Kurnool.

3. The Hon'ble Superintendent of Police, Kurnool.

4. The Director of Prosecution, Vijayawada.

5. The Judicial Magistrate of First Class, Kurnool.

O.S.No.26 of 2012 1 V-A.D.J. Court, Allagadda.

IN THE COURT OF THE V-ADDL. DISTRICT JUDGE,

ALLAGADDA.

PRESENT : Smt. P.Lakshmi Sarada,

V-Additional District Judge, Allagadda.

Thursday, the 20th day of December, 2018.

Original Suit No.26 of 2012

Mulla Pedda Fakruddin, Aged about 68 years, Son of Akbar Saheb,

Muslim, Agriculturist, Resident of H.No.15-79, Koitakugadda Street,

Chagalamarri Village and Mandal, Kurnool District.

... Plaintif

Versus

1.Mulla Khairati Saheb, Aged about 70 years, Son of Mulla Akbar

Saheb, H.No.15-102, Koitakugadda Street, Chagalamarri

Village and Mandal, Kurnool District.

2.Mulla Chinna Fakruddin, Aged about 66 years,H.No.15-78-1,

Koitakugadda Street, Chagalamarri Village and Mandal,

Kurnool District.

3.Mulla Chinna Hussainmiah, Aged about 69 years, Retired

Principal, Son of Late Mulla Akbar Saheb, Muslim, H.No.2-5-

71, Satram Street, Allagadda Town and Mandal, Kurnool

District.

4.Mulla Jahruddin, Aged about 52 years, Son of Late Pedda

Hussainmiah, H.No.15-84, Koitakugadda Street, Chagalamarri

Village and Mandal, Kurnool District.

5.Mulla Maqbul Basha, Aged about 50 years, Son of Late Pedda

Hussainmiah, H.No.15-84, Koitakugadda Street, Chagalamarri

Village and Mandal, Kurnool District.

6.Mulla Jahangir Basha, Aged about 48 years, Son of Late Pedda

Hussainmiah, H.No.15-81, Koitakugadda Street, Chagalamarri

Village and Mandal, Kurnool District.

7.Mulla Shamshun, Aged about 50 years, Wife of Mulla

Mahaboob Basha, Chinna Makanam Street, Chagalamarri

Village and Mandal, Kurnool District.

O.S.No.26/2012 2 V-ADJ, Court, Allagadda.

8.Mulla Karimun, Aged about 45 years, Wife of Pule Dasthagiri

Saheb, Burugu Street, Yerraguntla Village, Sirvella Mandal,

Kurnool District.

9.Mulla Rafinoon, Aged about 38 years, Wife of Dandu Mabusab,

Near Airtel Tower, N.H. Road, Chagalamarri Village and Mandal,

Kurnool District.

10.Mulla Jaffar Bee, Aged about 40 years, Wife of Late Jaleel,

H.No.15-83, Koitakugadda Street, Chagalamarri Village and

Mandal, Kurnool District.

11.Mulla Rafi, Aged about 27 years.

12.Mulla Karimulla, Aged about 26 years.

13.Mulla Shakeer, Aged about 25 years.

14.Mulla Shajeha, Aged about 23 years.

D11 to D14 are Children of Late Jaleel, Muslims, Resident of

H.No.15-83, Koitakugadda Street, Chagalamarri Village and

Mandal, Kurnool District.

15.Mulla Maimun Bee, Aged about 45 years, Wife of Late Mulla

Ibraheem, Muslim, Resident of H.No.15-78, Koitakugadda

Street, Chagalamarri Village and Mandal, Kurnool District.

16.Mulla Akbar, Aged about 28 years.

17.Mulla Hussain Basha, Aged about 25 years.

D16 & D17 are sons of Late M.Ibrahim, Son of Akbar Saheb,

Resident of H.No.15-78, Koitakugadda Street, Chagalamarri

Village and Mandal, Kurnool District.

*18*. Mulla Khadar Hussain, Aged about 38 years, Son of Late

Chinna Fakruddin, Muslim.

19*. Dapalle Gulab John, Aged about 40 years, D/o.Chinna

Fakruddin, Muslim.

20*. Mulla Shajahan, Aged about 41 years, Son of Chinna

Fakruddin, Muslim.

21*. Mulla Azimunnisa, Aged about 54 years, Wife of Late Chinna

Fakruddin, Muslim.

O.S.No.26/2012 3 V-ADJ, Court, Allagadda.

D18 to D21 are the residents of H.No.15-78-1, Koitakugadda

Street, Chagalamarri Village and Mandal, Kurnool District.

* Amended as per Orders in I.A.No.11/2018, Dt.12-07-2018 .

...Defendants

This Suit is coming on 14.12.2018 for final hearing before me in the presence of Sri A.Sreenivasa Sarma and Sri K.V.Subba Sharma,

Advocates for the Plaintiff; and of Sri V.Rama Chandra Rao and

Sri P.Venkata Ramana, Advocates for the Defendants No.1,3 and 15 to 17; Sri C.Sreenivasa Reddy, Advocate for D2,D4, D18 to D21;and

Defendants No.5 to D14 were remained exparte; and upon hearing on both sides and upon perusal of the material available on record; this

Court delivered the following:

J U D G M E N T

This Suit has been filed by the Plaintiff against the

Defendants, for Partition and Separate Possession of 1/ 6th share of

Plaintiff in the Plaint Schedule Property, and for costs of the Suit.

02.The averments in the Plaint are that :- One Mulla

Akbar Saheb, Son of Mulla Khajamiah was native of Chagalamarri

Town and he had six sons i.e., Mulla Pedda Hussain Miah 2] Mulla

Khairathi Saheb (D1) 3] Mulla Pedda Fakruddin (Plaintiff) 4] M.Chinna

Fakruddin (D2) 5] M.Chinna Hussainmiah [D3] and 6] M.Ibrahim.

Among them, Mulla Pedda Hussainmiah is no more and Defendants

No.4 to 13 are his Legal Representatives including the Widow

Daughter-in-law and grand children of Pedda Hussainmiah. Another son Ibrahim also died and Defendants No.15 to 17 are his Legal

Representatives. During the pendency of the Suit, D2 died and

Defendants No.18 to 21 are added his Legal Representatives as per the Orders of this Court in I.A.No.11 of 2018, Dt.12-07-2018.

O.S.No.26/2012 4 V-ADJ, Court, Allagadda.

[a]The Plaintiff and Defendants have been enjoying the

Plaint Schedule Property jointly by treating them as joint family properties without any devision. Due to ill feelings that arose between the parties, the Plaintiff asked for division of the properties.

The Defendants colluded together and utilizing the income derived from the Plaint Schedule Property for their self aggrandizement without making proper accounts for the same and they are also acting adverse to the interest of Plaintiff. As such, the Plaintiff demanded for

Partition of the properties and his 1/ 6th share in the same. During the last week of January, 2012, the Plaintiff came to know that the

Defendants are making hectic efforts to create fictitious documents including the revenue records, and as such, the Plaintiff got issued

Legal Notice to the Defendants on 03-11-2011 demanding for partition of the properties. The Defendants received the same, but did not come forward for partition, and as such, the Suit is filed for Partition.

03.D2 filed Written Statement adopted by D4, who have supported the plea of the Plaintiff and prayed to decree the Suit, directing for division of Plaint Schedule Properties.

04.Defendants No.1,3,15 to 17 filed Written Statement and pleaded that they admit the Genealogy as mentioned by the Plaintiff.

They further pleaded that some of the Plaint Schedule Properties were acquired by the Mulla Khajamaiah in a Partition and some of the

Plaint Schedule Properties fell to the share of his son Mulla Akbar

Saheb and the remaining properties were acquired by Mulla Akbar

Saheb. Mulla Akbar Saheb died in the year 1974, leaving behind his wife and six [6] children who inherited to the Plaint Schedule

Property. Dispute arose among the Legal Heirs of Akbar Saheb and as

O.S.No.26/2012 5 V-ADJ, Court, Allagadda.

such they have divided all the Plaint Schedule Properties by executing a Partition List on 19-07-1975 [a]The six [6] children allotted Item No.4 and Part of

Item No.5, to their mother, Mulla Mahaboob Bi and she had been in possession and enjoyment of the same during her life time. The

Partition List was prepared in six copies and all the six children have retained one copy each with them. The Defendants have produced the four copies of Partition List available with them. The Plaintiff furnished the names of some of the Plaint Schedule Properties and other properties in the Plaint Schedule Property also have names.

[b]The Partition List clearly shows the property allotted to each of the child of Akbar Saheb. Mulla Pedda Hussainmiah and

Mulla Khairathi Saheb exchanged the property for their convenience and enjoyment, and that Pedda Hussainmiah took half share of

Stampula Ammaiah Chenu, which had fallen to the share of Mulla

Khairathi @ Khairathi Saheb and in exchange, he gave Munemma

Chenu and Rajugari Chenu to Khairathi Saheb. One of the property called as Bogam Ramuni Chenu, which fell to the share of Mulla

Pedda Hussainmiah was sold to Mulla Khairathi Saheb under document.

[c]D3 was given Komarola Chenu, Varimadi, guntha

Bavi Chini Thota in half portion. M.Ibrahim was allotted half of

Komarola Chenu, Varimadi, Guntha Bavi Chini Thota and half of Kotha

Midde etc., Mulla Mahaboob Bi lived with Mulla Chinna Hussainmiah after demise of her husband. All the six children of Mulla Akbar

Saheb entered into their respective shares and have been enjoying

O.S.No.26/2012 6 V-ADJ, Court, Allagadda.

them exclusively. They have also mutated their names in the Revenue

Records. The wife of Akbar Saheb, by name, Mulla Mahaboob Bi died in the year 1982 and properties allotted to her i.e.,Item No.4 and part of Item No.5 in an extent of Ac.2-00 cents in Survey No.160/A are kept joint as said lands are barren and they are the only properties liable for partition among the Plaintiff and other defendants, but the other properties were already partitioned. Though, the Plaintiff issued

Legal Notice to the Defendants, he promised that he would withdraw the same. But, he filed the present Suit. The Properties are not in possession and enjoyment of the parties. As such, payment of Court

Fee under section 34[2][i] of APCF and SV Act, is not correct and hence, prayed to dismiss the Suit.

05.Based on the Pleadings, this Court has framed the following issues for trial.

1.Whether the Plaintiff entitled for Partition and separate

Possession as prayed for ?

2.To what relief ?

06.During the Trial, on behalf of the Plaintiff, PW1 and PW2 were examined and Exs.A1 to A9 were marked. DW1 to DW3 were examined on behalf of the Defendants and Exs.B1 to B26 were marked.

07.Heard Arguments of both sides.

Issues No.1 :- 08.A perusal of the pleadings show that the properties are governed under Muslim Law. Their pleadings further show that they admit the Plaint Schedule Properties are in existence, and that the

O.S.No.26/2012 7 V-ADJ, Court, Allagadda.

said properties belonged to the original Owner Mulla Akbar Saheb.

The Plaintiff and all the Defendants are legal heirs of Mulla Akbar

Saheb. The Defendants No.1,3, 15 to 17 have pleaded that Item No.4 and part of Item No.5 of Plaint Schedule properties were allotted to the mother of the Plaintiff, D1 and D3 for her enjoyment, and that she died in the year 1982. But, the properties allotted to her are still kept joint and also remaining properties were partitioned among six children of Mulla Akbar Saheb during 1975 itself. Thus, the pleadings of the Defendants show that there are some of the properties being enjoyed jointly which are yet to be partitioned. Evidently, as per pleadings of the both parties, the original owner Mulla Akbar Saheb had six sons. Plaintiff, D1 to D3 are sons and that D2 died during the pendency of the present Suit.

09.The evidence adduced by the Plaintiff disclosed that he examined himself as PW1 and filed the Chief Examination Affidavit of

D4 as PW2 on his behalf. However, D4 has been contesting the Suit and as such, on the objection was raised by the Defendants No.1,3, 15 to 17 and the Chief Affidavit of D4 filed on behalf of Plaintiff , was eschewed from the record. However, the Defendants No.2 and 4 have examined themselves as Dws.1 and 2. The Examination in Chief and so also cross examination of PW1, Dws.1 and 2 are similar with the same contentions.

10.The Plaintiff has produced the Office Copy of Legal Notice issued by him under Ex.A1 and served Postal Acknowledgements under Exs.A2 to A9 as documentary evidence on his behalf. The evidence of PW1 and so also similar deposition of Dws.1 and 2 reveals that they admit that their family got the properties from their grand

O.S.No.26/2012 8 V-ADJ, Court, Allagadda.

father Mulla Khajimiah. They admitted the names of Agricultural lands of their family as Gunthabavi Thota or Cheeni Thota,

Gunthamadi Chenu, Kumarolla Chenu, Musaloni Pampu, Addavagu

Chenu, Puttala Chenu or Jamalsa Chenu, Stampula Ammaiah Chenu,

Rajugari Chenu and Munemma Chenu.

[a]They further deposed that the old house was removed and a new house was constructed and in half share portion the said witnesses are residing and in another half portion defendants

No.15 to 17 are residing. The three witnesses have been cultivating some of their family agricultural land exclusively and living with the income derived from the cultivation. They cannot say names of the lands and extents under their respective possession. They did not remember since how long they have been in separate possession and enjoyment of the said lands.

[b]All the witnesses have deposed that Kallam is not in their possession and it is not provided to them. They do not know that

Jamalsa gari chenu, stampula Ammaiah Chenu, half of Bogam Ramuni

Chenu, Thota, half of Munemma Chenu, Half of Rajugari Chenu and house site had fallen to the share of Mulla Pedda Husainmiah under the Partition List. They do not know that Aluguralla Chenu, half of stampula ammaiah chenu, half of Bogam Ramuni Chenu, half of

Munemma Chenu, half of Rajugari chenu and a hut had fallen to the share of Mulla Khairathi @ Mulla Khairati Saheb.

[c]They further deposed that they do not know that

Mulla Pedda Hussainmiah had exchanged the property with Mulla

Khairati Saheb by giving Munemma Chenu, and Rajugari Chenu and taking Stampula Ammaiah Chenu, and that they are in possession and

O.S.No.26/2012 9 V-ADJ, Court, Allagadda.

enjoyment of their respective properties since then. So-also, they do not know that half of Kumarolla Chenu, half of Varimadi, half of

Gunthabhavi Cheeni Thota, Well, Engine and Gunthamadi Chenu and also Rajugari Midde had fallen to the share of Mulla Chinna

Hussainmiah in the partition and he had been in possession and enjoyment of the same. So-also, that half of Kumarolla Chenu, half of

Varimadi, half of Gunthabavi Cheenithota, Well, Engine and half of

Kotthamidde had fallen to the share of Mulla Ibrahim and he had been in possession and enjoyment of the same and later in possession of his children.

[d]They have admitted that D15 to D17 have been residing in half of Kothamidde. They do not know whether the Revenue

Department had issued Pattadar Pass Books and Title deeds to the

Plaintiff in respect of the properties fell to his share. The property in an extent of Ac.0-83 cents shown in Item No.4 and Ac.2-00 which is part of Item No.5 of Plaint Schedule Property and Ac.1-50 cents of

Gunthamadi Chenu were kept by their mother as barren and their mother did not give the properties to any of the sons and they are still to be divided.

11.The Defendant No.3 was examined as DW3. His evidence reveals that he did not issue any Reply Notice of the Plaintiff. He is

Retired Principal from Government Junior Collage, Allagadda. D1 is also educated person and retired as Headmaster. There is no

Registered document to show that the brothers have partitioned their properties. He did not submit any Registered document when he obtained Pattadar Pass Book and Title Deed in his name. There are no entires in Ex.B3 Pass Book that he had obtained any agricultural loan

O.S.No.26/2012 10 V-ADJ, Court, Allagadda.

from the Bank. He further deposed that the documents filed by him, does not show the property devolved upon those persons by way of partition.

12.The Schedule Property is shown in the Plaint as in 13

Items. The names of Item No.1 to 5, 7 and 11 were given in the

Plaint Schedule Property. As per the Pleadings of the Defendants, they have also admitted the names and further pleaded that there are names to the other properties also and gave specific names for the properties. As per the evidence of PW1, Dws.1 and 2, they have admitted the names of all the items as suggested by Defendants.

13.Documents produced by the Defendants are, Pattadar pass

Books of D3 under Ex.B3, D15 in Ex.B5. They reflected some of the properties in the names of D3 and D15. As per Ex.B7, 1-B Namuna obtained from Mee-Seva which reflects six items of the properties in the name of Plaintiff shown as Ancestral Property and one item as purchased. It was obtained on 17-10-2018. The Defendants further produced 1-B Namuna in the name of D1, D3, D6, D15 and D21 under

Exs.B8 to B12 which reflects some other properties in their respective names as per Revenue records and all these documents were obtained during October, 2018.

14.Ex.B13 to Ex.B26 are Adangal Pahanies for the fasli 1428 for different items of Plaint Schedule Properties in the names of D3,

D15, D1, Plaintiff, D21, D6 etc., The properties in the joint possession of D1, Plaintiff and D21 are shown as land in Survey No.155/1, 155/2 showing them as Ancestral Property, which are reflected under Item

No.6 of Plaint Schedule Property.

O.S.No.26/2012 11 V-ADJ, Court, Allagadda.

15.The Defendants have produced Ex.B1, four copies of Un- registered Partition List said to be the copies available with the defendants and executed by all the parties while dividing the property in 1975. PW1, Dws.1 and 2 have categorically denied that they have executed any such documents. Evidently, the Partition List are Un-

Registered Document, but they were impounded and the stamp duty and penalty was paid before District Registrar and Joint Collector,

Nandyal towards sufficient stamp duty of the documents. The pleadings of the defendants is that the partition took place between the sons and wife of Mulla Akbar Saheb in 1975 itself and they have arranged as to what are the properties to be enjoyed by each of them.

16.As per Section 49 of Registration Act, an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, to be registered may be received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By a plethora of decisions, it is held that the severance of joint status and separate enjoyment of the properties may be a collateral purpose, for appreciating the evidence in respect of Un-Registered Partition Agreement or List.

17.Thus, Ex.B1 has to be considered for collateral purpose only to prove the separate shares and enjoyment of the same by the parties, if it is proved. As discussed above, the Plaintiff and

Defendants No.2 and 4 have categorically denied the execution of any such Partition List.

O.S.No.26/2012 12 V-ADJ, Court, Allagadda.

18.A perusal of Ex.B1 shows that it contains the name of all the six sons of Mulla Akbar Saheb, and that it was partition settlement deed between them and the property is divided into A to F Schedules and agreed to be enjoyed by the six sons respectively. Ex.B1[a] reflects A-Schedule fell to the share of Mulla Pedda Hussainmiah.

Ex.B1[b] reflects the B-Schedule in the name of D1. Ex.B1[c] reflects

E-Schedule Property in the name of D3 and Ex.B1[d] reflects F-

Schedule Property in the name of M.Ibrahim i.e., D4. The Schedule land is shown in these Partition Lists reflect the names of the properties, but not the survey numbers. Moreover, the total property that was partitioned among them was not reflected in any individual partition lists.

19.As discussed above, Ex.B21 and Ex.B22/Adangal Pahanies reflect item No.6 of Plaint Schedule Property in the joint names of

Plaintiff, D1, D21. The pleadings of the Defendants show that this property was also partitioned among the sons of Mulla Akbar Saheb.

As per the pleadings of the defendants in their written Statement, item No.6 of the Plaint Schedule Property was called as Aluguralla

Chenu. Ex.B1[b] of Partition List reflect that the Aluguralla Chenu was shown in B-Schedule and fell to the share of D1, in an extent of

Ac.4-50 Cents and so also as per the pleadings of the Defendants.

20.The Defendants did not give any explanation as to how this property was reflected as joint property even in the revenue records and shown as Ancestral property when the same was alloted to D1 in a Partition during 1975 itself and mutated in the name of D1.

Moreover, the evidence categorically revealed that D1 and D3 are educated persons among the sons of Mulla Akbar Saheb and they held

O.S.No.26/2012 13 V-ADJ, Court, Allagadda.

very respectable posts in their service and so also they have pleaded specifically about the partition under Ex.B1 during 1975, itself.

21.As per Ex.B1, there are witnesses and Scribe for the said

Partition Lists said to have been executed among the sons of Mulla

Akbar Saheb. But the Defendants did not produce any of the said persons to prove the execution of Ex.B1 and further separation of properties in pursuance of said Partition. As already discussed above, the Partition List under Ex.B1 can be looked into for collateral purpose, to see whether there is separate enjoyment of the properties by the respective persons in pursuance of the said Partition List.

22.The evidence adduced on behalf of the defendants itself show that some of the properties though reflected as divided among them, were still shown as in joint possession of the parties under

Ex.B21 and Ex.B22. This fact is very important to consider the joint or severed possession of the properties among the parties, since the plaintiff pleaded that being educated persons, D1 and D3 used to look- after the properties and other sons have been enjoying only some of the properties for the purpose of convenience , to lead their lives and on the other hand, the defendants pleaded that the enjoyment of properties is by virtue of partition.

23.As already discussed above, all the parties to the Suit are governed by the Muslim law. Hence, as per Muslim Personal Law, at the moment of death of a Mohammedan, his estate devolves upon his heirs, who would take it as joint tenants in specific shares. Muslim

Law does not recognize the theory of representation, and the interest of each heir is separate and distinct. Therefore, there can be no presumption that acquisition of a property by one or more members

O.S.No.26/2012 14 V-ADJ, Court, Allagadda.

of the family is for the benefit of the entire family, unless and until, it was proved to the contrary. So-also, the concept of a joint family is foreign to Muslim Law.

[a]However, it is common in certain areas of Andhra

Pradesh, formerly belonging to the Madras State, for descendant

Mohammedans to live and trade together and to acquire properties together. There is nothing contrary to law in Mohammedan adult male members of a family carrying on trade for the benefit of all the interested members, including minors and females. The Courts have upheld such legal arrangements and the legal consequences as in law that follow from them.

[b]This was so held by the Hon’ble High Court of A.P

in Shaik Abdul Samed [Died] Legal Heirs Versus Shaik Abdul

Samad reported in 2012[5] ALT 325. It was further held that though the concept of family settlement among the Mohammedan is not very common, there are instances when Agreements in the nature of family arrangements are made which are not strictly akin to the family settlement……..

[c]The Hon’ble Supreme Court of India recognized by implication, such arrangements amongst the members of Muslim family to represent the family settlement, in the case of Mohd. Amin

Versus Vakil Ahmad reported in AIR 1952 SC 358.

24.Thus, it is clear that once owner of the property under

Mohammadan Law dies, his estate devolves upon his heirs with specific shares, which has happened in the present Suit. However, it has to be proved that as per the specific shares acquired by each such heir, the property was divided among them by metes and bounds. The

O.S.No.26/2012 15 V-ADJ, Court, Allagadda.

defendants have admitted that the property devolved upon all the sons of original owner Mulla Akbar Saheb and further admitted that item No.4 and Part of Item No.5 are still in joint possession and enjoyment of all the parties and they have pleaded that there was a partition as per their specific shares under Ex.B1.

25.However, Ex.B1 is Un-registered document and cannot be looked into the main purpose of proof of partition of properties as per their specific shares. When Ex.B1 has to be considered for collateral purpose of severance of joint status of properties as per the division mentioned under Ex.B1, the documents of defendants itself proved that some of the properties, though shown as divided under Ex.B1, are still joint properties of all the sons as per the revenue records, under Ex.B21 and Ex.B22. The defendants did not produce any other evidence to prove the severance of joint status and division of specified shares of each son, in pursuance of partition. Hence, Ex.B1 is not useful for defendants to prove severance of joint status.

26.The circumstances that some of the properties and so also dwelling house are being enjoyed separately by the parties cannot be a proof of division of properties, as per their specified shares.

Moreover, the plea of Plaintiff, D2 and D4 that the said enjoyment is for the purpose of convenience and eaking out livelihood separately by the parties till a specific division of properties is made, is not ruled out by the evidence of defendants No.1,3, 15 to 17. Thus, it is proved that the parties to the Suit have been practicing the custom of enjoying the property jointly which devolved upon them through common ancestor as prevailed in the State of Andhra Pradesh and referred in the above decision.

O.S.No.26/2012 16 V-ADJ, Court, Allagadda.

27.In these circumstances, the Plaintiff, D2 and D4 are entitled for the relief of division of the properties as per their specific shares and for separate possession of the same. In these circumstances, it is further proved that the enjoyment of properties separately for the sake of convenience cannot be taken as exclusion of said persons from the joint possession over the other properties, without specific division of the properties. As such, it further proves that all the sons of common ancestor have been enjoying the property jointly without exclusion of other sharers.

28.It is pertinent to note here that the evidence of DW3 categorically proves that Ex.B1 Partition List was not reflected in any of the revenue records to prove that the separate enjoyment of the properties as reflected under Ex.B13 to Ex.B26, had been by virtue of

Ex.B1 Partition Lists. So also, the defendants did not produce any evidence to prove that Ex.B1 was brought to light by them claiming their exclusive right over the said properties and excluding the other sharers from the said properties. In these circumstances also, it is proved that all the parties have intended to be in joint possession of all the plaint schedule property and enjoying the same for the sake of convenience, by separate possession. As such, the payment of Court

Fee by the Plaintiff under section 34[2][1] of APCF & SV Act is correct.

29.For all the reasons discussed above, the Plaintiff has proved that he is entitled for division of Plaint Schedule Properties as per their specified shares and as such, he is entitled for the relief of partition as prayed.

This issue is answered in favour of the Plaintiff.

O.S.No.26/2012 17 V-ADJ, Court, Allagadda.

30.In the result, the Suit is Preliminary Decreed with costs.

The Plaint Schedule Property to be divided into six equal shares.

Plaintiff, D1 and D3 are entitled to 1/ 6th share each, and D4 to D13 are entitled for one share; D14 to D17 are entitled for one share; D18 to D21 are entitled to one share on behalf of D2. Plaintiff is entitled for enquiry into mesne profits, under Order 20 Rule 18 of C.P.C.,

Dictated to the Stenographer, transcribed by him,

corrected and pronounced by me in the open court, this the 20 th day of December, 2018.

V-ADDL. DISTRICT JUDGE,

ALLAGADDA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF

PW1: Mulla Fakruddin.

PW2: Mulla Jahruddin.

EXHIBITS MARKED ON BEHALF OF THE PLAINTIFF

Ex.A1: Office Copy of Legal Notice, Dt.03-11-2011.

Ex.A2: Ex.A3: Ex.A4: Ex.A5: Served Postal Acknowledgements. Ex.A6: Ex.A7: Ex.A8: Ex.A9:

WITNESSES EXAMINED ON BEHALF OF THE DEFENDANTS

DW1: Mulla Chinna Fakruddin.

DW2: Mulla Jahruddin.

DW3: Mulla Chinna Hussainmiah.

O.S.No.26/2012 18 V-ADJ, Court, Allagadda.

EXHIBITS MARKED ON BEHALF OF THE DEFENDANTS

Ex.B1[a] : Partition List for the Properties of Mulla Pedda Hussian

Miah dated 19-07-1975.

Ex.B1[b] : Partition list for the properties of Mulla Khairathi(D1)

dated 19-07-1975.

Ex.B1[c] : Partition list for the properties of Mulla Chinna Hussian

Miah(D3), dated 19-07-1975.

Ex.B1[d] : Partition list for the properties of Mulla Ibrahim, dated 19-07-1975.

[Ex.B1 marked Subject to objection from the Plaintiff for want of registration. Ex.B1 marked for Collateral purpose]

Ex.B2: Pahanies (9 numbers) for the fasli 1422 obtained from

Web-land and attested by Tahsildar Chagalamarri.

Ex.B3: Pattadar Pass book of D3.

Ex.B4: Letter issued by SBI Chagalamarri Branch dated 04-10- 2012 certifying that title deed of D3 kept with them.

Ex.B5: Pattadar pass book of D15.

Ex.B6: Letter issued by SBI Chagalamarri branch dated 04-10- 2012 certifying that title deed of D15 kept with them.

Ex.B7: I-B Namuna (ROR) in the name of Mulla Pedda

Fakruddin (Plaintiff) 3rd son of Mulla Akbar sab Khata

No.758 obtained from Mee-seva.

Ex.B8: I-B Namuna (ROR) in the name of Mulla Kahirathi

Saheb(Defendant No.1) 2nd son of Mulla Akbar sab

Khata No.759 obtained from Mee-seva.

Ex.B9: I-B Namuna (ROR) in the name of Mulla Chinna Hussian

Miah ( Defendant No.3) 5th son of Mulla Akbar sab

Khata No.756 obtained from Mee-seva.

Ex.B10: I-B Namuna (ROR) in the name of Mulla Jahangir Basha ( Defendant No.6) son of Late Pedda Hussain Miah (1st son of Mulla Akbar sab, Khata NO.1047 obtained from

Mee-seva.

O.S.No.26/2012 19 V-ADJ, Court, Allagadda.

Ex.B11: I-B Namuna (ROR) in the name of Mulla Maimun (Defendant No.15) wife of late Mulla Ibrahim(6th son of

Mulla Akbar sab), Khata NO.1224. obtained from Mee- seva. Ex.B12: I-B Namuna (ROR) in the name of Mulla Ajimun bi ( Defendant No.21) wife of late Mulla Chinna Fakruddin (4th son of Mulla Akbar sab) Khata No.350 obtained from

Mee-seva. Ex.B13: Adangal Phanani for fasli 1428 for item No.1 of plaint schedule property Sy.No.826 belongs to Mulla Chinna

Hussain Miah(D3) and Mulla Maimun(D15) Obtained from Mee-seva.

Ex.B14: Adangal Phanani for falsi 1428 for item No.1 of Plaint

Schedule Property Sy.No.827 belongs to Mulla Chinna

Hussain Miah(D3) and Mulla Maimun Bi (D15) Obtained from Mee-seva. Ex.B15: Adangal Phanani for falsi 1428 for item No.1 of Plaint

Schedule Property Sy.No.828 belongs to Mulla Chinna

Hussain Miah(D3) and Mulla Maimun Bi (D15) Obtained from Mee-seva. Ex.B16: Adangal Phanani for falsi 1428 for item No.1 of Plaint

Schedule Property Sy.No.829 belongs to Mulla Chinna

Hussain Miah (D3) and Mulla Maimun Bi (D15) Obtained from Mee-seva.

Ex.B17: Adangal Phanani for falsi 1428 for item No.1 of Plaint

Schedule Property Sy.No.830-1 belongs to Mulla Chinna

Hussain Miah(D3) and Mulla Maimun(D15) obtained from

Mee-seva.

Ex.B18: Adangal Phanani for falsi 1428 for item No.1 of Plaint

Schedule Property Sy.No.830-2 belongs to Mulla Chinna

Hussain Miah (D3) and Mulla Maimun(D15) obtained from Mee-seva.

Ex.B19: Adangal Phanani for falsi 1428 for item No.III of Plaint

Schedule Property Sy.No.167 belongs to Mulla Chinna

Hussain Miah(D3) and Mulla Maimun Bi(D15) obtained from Mee-seva.

O.S.No.26/2012 20 V-ADJ, Court, Allagadda.

Ex.B20: Adangal Phanani for falsi 1428 for item No.II of Plaint

Schedule Property Sy.No.866 belongs to Mulla Chinna

Hussain Miah (D3) obtained from Mee-seva.

Ex.B21: Adangal Phanani for falsi 1428 for item No.1 of Plaint

Schedule Property Sy.No.155-1 belongs to Mulla Khirathi

Saheb(D1), Mulla Pedda Fakruddin (Plaintiff) and Ajimun

Bi(D21) obtained from Mee-seva.

Ex.B22: Adangal Phanani for falsi 1428 for item No.1 of Plaint

Schedule Property Sy.No.155-2 belongs to Mulla Khirathi

Saheb(D1), Mulla Pedda Fakruddin (Plaintiff) and Ajimun

Bi(D21) obtained from Mee-seva.

Ex.B23: Adangal Phanani for falsi 1428 for item No.VII of Plaint

Schedule Property Sy.No.154 belongs to Jahangir Basha (D6) obtained from Mee-seva.

Ex.B24: Adangal Phanani for falsi 1428 for item No.VIII of Plaint

Schedule Property Sy.No.120 belongs to Jahangir Basha (D6) obtained from Mee-seva.

Ex.B25: Adangal Phanani for falsi 1428 for item No.IX of Plaint

Schedule Property Sy.No.69 belongs to Mulla Khirathi obtained from Mee-Seva.

Ex.B26: Adangal Phanani for falsi 1428 for item No.V of Plaint

Schedule Property Sy.No.160-B belongs to Mulla Ajimun (D21) obtained from Mee-Seva.

V-ADDL. DISTRICT JUDGE,

ALLAGADDA.

Judgment

O.S.No.26 of 2012

Dt. 20-12-2018

O.S.No.154 of 2012 1 A.S.C.J. Court, Kurnool.

IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE,

KURNOOL.

PRESENT: Smt.P.Lakshmi Sarada,

Additional Senior Civil Judge, Kurnool.

Wednesday, the Twenty Fifth [25th] day of July, 2018.

ORIGINAL SUIT No.154 of 2012

Between

1. Sri Kategari Venkateswarlu

2. Sri Syed Anwar Basha… PLAINTIFFS.

And

1. Sri Venkateswarulu Goud

2. Smt.Rukminamma

3. Sri Madhu

4. Sri Raju

5. Sri Birru Prathapa Reddy

5. Sri Venkateswara Reddy … DEFENDANTS.

*****

This Suit, coming on 24.07.2018, for hearing before me, in the presence of Sri S.Md.Ishaq, Advocate for the Plaintiffs, and the

Defendants remained exparte; and upon perusing the entire material available on record; and upon having been stood over for consideration till this day, this Court delivered the following

JUDGMENT

1.Suit for declaration that Plaintiffs are the absolute owners of plaint ‘A’ schedule property and delivery of vacant possession of the same and Mandatory injunction to demolish the entire constructions made in the plaint ‘B’ schedule premises and permanent injunction restraining the Defendants from making any constructions in Plaint ‘A’ & ‘B’ schedule premises in any way altering the nature of the property and for costs of the suit.

2. The brief averments of the Plaint are that the Plaint 'A'

Schedule Property is the absolute property of Plaintiffs which is part and parcel of approved layout D.Dis.No.127/70-71 laid in an extent of Ac.2.00 cents of land in Sy.No.49/3A, 49/3B and 49/3C at Mamidalapadu village.

O.S.No.154 of 2012 2 A.S.C.J. Court, Kurnool.

Plaintiffs purchased the same under Registered Sale Deed, dt.30.05.1988 along with one Sardar Basha.

(a) Originally, the Plaintiffs and Sardar Basha purchased total extent of Ac.3.47 cents from Lagisetty Rama Subbaiah under Agreement of Sale, dt.17.09.1995 in the said survey numbers. But they could not pool up the required money and as such they could purchase only

Ac.2.00 cents of land under Registered Sale Deed. As such, their vendor did not inform that the said two acres of land was already subjected to an approved layout. The Plaintiffs sold the plots under unapproved layout got prepared by them.

(b) Later, their vendor revealed about the approved layout and as such the Plaintiffs sold the plots, later on, as per approved layout. By 2004 Ac.0.60 cents of land remained with them. The other purchaser

Sardar Basha sold away his share of Ac.0.20 cents of land to the plaintiffs under Registered Sale Deed dt.23.03.2004 and as such, both the Plaintiffs became absolute owners of the remaining land. Some purchasers occupied plot numbers 54 to 58 and part of 20 feet road on the eastern side of the said plots, about three years ago. The Plaintiffs tried to evict them by taking other recourses to law i.e., revenue authority and police.

(c) On 15.02.2012, the plaintiffs finally found that the defendants colluded together and encroached the Plaint 'A' Schedule Plot by making illegal constructions. The house of Defendants No.1 & 2 is shown as 'B' 'B1' and 'B2' in plaint 'A' schedule plot as per the plaint plan. They never had any access in the plaint 'A' schedule property, but the plaintiffs noticed on that day that defendants No.1 & 2 opened a door way for the plaint 'A' schedule plot and constructed a Wall along with southern

O.S.No.154 of 2012 3 A.S.C.J. Court, Kurnool.

boundary of plaint schedule plot. It is referred as 'B' and A5 in plaint plan.

(d) The plaintiffs further found that defendants No.3 and 4 constructed temporary hut and trying to construct a compound wall with stones slabs covering part of plaint 'A' schedule property which are shown as C1, C3 and C2 in the Plaint Plan. A part of 30 feet road on the northern side of Plot No.31 was also encroached and the defendants are trying to make further constructions. The Plaintiffs objected for the constructions and demanded the defendants to remove all the illegal constructions, but the defendants did not comply with it. The encroachments and constructions are illegal and highhanded and as such they are to be removed and restored and hence the suit.

4.Though, all the defendants remained exparte, initially

Defendants No.3 & 4 filed separate written statements. Defendant No.3 pleaded that J.Sony is his wife and she was allotted an area measuring 29 feet x 15 feet in Sy.No.49/1 and 49/2 at Geetha Mukerji Nagar, H/o

Mamidalapadu village by the Government and in the month of October, 2010, she was put in possession and possession certificate was issued.

As such, hut was erected and door number 4/431-B was allotted by

Grampanchayath. Defendant No.3, being husband of the said Sony, has been residing in the said hut and Grampanchayath is collecting tax.

Defendant No.3 or Defendant No.4 have nothing to do with the lands of

Sy.No.49/3A, 3B or 3C and they have no knowledge about the ownership of the said land. Defendant No.3 did not encroach any property. The said

Sony wife of Defendant No.3 is a necessary party to the suit and hence prayed to dismiss the suit.

5. The pleadings of the Defendant No.4 are that Defendant No.4 has nothing to do with the survey numbers No.49/3A, 3B and 3C. The

O.S.No.154 of 2012 4 A.S.C.J. Court, Kurnool.

photos filed by plaintiffs relate to survey No.49/1 and 49/2. The enjoyment in respect of Sy.No.49/3A, 3B and 3C is not within the knowledge of Defendant No.4 and he did not encroach any property and hence prayed to dismiss the suit.

6. This Court has taken steps under section 89 of C.P.C. for amicable settlement of the matter and the parties did not evince any interest in settling the dispute.

7. Based on the pleadings, the following issues are settled for trial.

[1] Whether the Plaintiffs are having right and title over the Plaint ‘A’ Schedule Property, shown as ‘ABCD’, in the Plaint Plan?

[2] Whether the Defendants have made illegal constructions, as shown in the Plaint ‘B’ Schedule, by occupying the Road and Plot No.31, as pleaded by the

Plaintiffs, and as shown in the Plaint Plan?

[3] Whether Smt.J.Soni, wife of the Defendant No.3, is a necessary party to the Suit?

[4] Whether the Defendants No.3 and 4 have no concern with the disputed Property, as pleaded by them?

[5] Whether Photographs filed by the Plaintiffs pertain to the Schedule Property or not?

[6] Whether the Plaintiffs are entitled for Declaration of their title over the Plaint ‘A’ Schedule property, shown as ABCD in the Plaint Plan, and for delivery of its vacant possession from the Defendants, as prayed for?

[7] Whether the Plaintiffs are entitled for Mandatory

Injunction, for removal of the construction in the Plaint ‘B’ Schedule premises, and for restoration of the original road, as prayed for?

[8] Whether the Plaintiffs are entitled for Permanent

Injunction, as prayed for?

[9] To what relief?

O.S.No.154 of 2012 5 A.S.C.J. Court, Kurnool.

8.On behalf of the Plaintiffs, PW.1 & PW.2 were examined, and

Exs.A1 to A7 & Ex.C1 were marked. During the course of trial, defendants No.3 & 4 remained exparte, without proceeding with the trial.

9.Heard the Counsel for Plaintiffs.

ISSUES No.1 to 8 :-

10.The schedule of the property as given in the Plaint is Plaint 'A' and 'B' schedule properties. Plaint 'A' schedule is plot No.31, out of land of Ac.2.00 cents in survey number 48/3A, 3B and 3C with boundaries. The western boundary to the Plaint 'A' Schedule was shown as land of Venkatrami Reddy in Sy.No.49/2. Plaint 'B' Schedule is shown as space left for 30 feet road on the northern side of plaint 'A' schedule plot. The plaintiffs pleaded that the Defendants encroached into both 'A' and 'B' schedule properties and made constructions and thus pleaded for declaration of their rights and so also for permanent and mandatory injunctions.

11. The first plaintiff examined himself as PW.1 and deposed that

Geetha Mukerji Nagar is not situated near the Plaint Schedule Property.

Survey No.49/2 is situated to the western side of plaint schedule property. Plaintiffs purchased only Ac.2.00 cents of land. He does not know whether the lay out was approved or not at the time of purchase.

PW.1 did not apply for lay out of the plots. Ex.A2 approved lay out was

dated 24.07.1971.

12.One third party was examined as PW.2 who was one of the attestor under Ex.A1 Registered Sale Deed. He deposed that as per

Ex.A1 on the western side of the property the land of Venkatarami Reddy is situated.

O.S.No.154 of 2012 6 A.S.C.J. Court, Kurnool.

13. Ex.A1 is the Registered Sale Deed, dated 30.05.1988 under which plaintiffs and another person said to have purchased the property.

The land sold under Ex.A1 was Ac.2.00 cents in Sy.No.49/3A, 3B and 3C.

The western side boundary was shown as the land of Venkatrami Reddy sold to others.

14. Ex.A2 is approved layout from Sarpanch Grampanchayath

Mamidalapadu village for house sites in Sy.No.49/3A, 3B & 3C. Plot

No.31 shown in Plaint 'A' Schedule is reflected in Ex.A2 layout. 30 feet wide road shown in plaint 'B' schedule is also reflected towards northern side of the said plot No.31.

15. Ex.A3 is said to be the sale deed under which the other purchaser sold his share of land to the plaintiffs in the remaining land in

Sy.No.49/3A & 3C. A sketch was appended to Ex.A3 to reflect Ac.0.60 cents of land which remained with the plaintiffs and another purchaser

Sardar Basha, under which, the said Sardar Basha sold his share of

Ac.0.20 cents to plaintiffs. However, it does not reflect the plot numbers.

Ex.A3 was dt.23.03.2004. Exs.A5 to A7 are the Legal Notices issued to defendants by the Plaintiff and the postal acknowledgements and returned postal covers from some of the defendants.

16. Ex.A4 is five colour photos. Though, the defendants No.3 & 4 remained exparte at a later time, they denied the plea that the constructions made by the defendants are situated in Plaint 'A' and 'B'

Schedule properties. Their plea is that the constructions are situated in

Sy.No.49/1 and 49/2, which has nothing to do with the plaintiffs property.

17. The defendants remained exparte and they did not produce any evidence in respect of their plea. However, a Commissioner was appointed to make physical inspection of the property. His report was

O.S.No.154 of 2012 7 A.S.C.J. Court, Kurnool.

marked as Ex.C1. None of the parties raised any objection in respect of the report produced by the Advocate Commissioner.

18. A perusal of the Ex.C1 shows that as per the directions in the warrant, the Advocate Commissioner identified the property and he found encroachments in Plaint 'A' Schedule property and so also in

Plaint 'B' Schedule property and the constructions made thereon by the defendants. Ex.C1 consists the report of the Mandal Surveyor from

Tahsildar, who accompanied the Advocate Commissioner, who assisted the Advocate Commissioner, to fix the boundaries for plot No.31 and 30 feet wide road in Sy.No.49/3A, 3B and 3C. Even as per the report of

Mandal Surveyor, the huts are situated in Plot No.31 and so also in 30 feet wide road which are plaint 'A' and 'B' schedule properties.

19. The pleadings of the parties including that of defendants No.3 & 4 who remained exparte, categorically show that even the defendants admit that plaint 'A' schedule property belonged to the plaintiffs. The only plea of defendants is that their constructions are situated in

Sy.No.49/1, 49/2 and not in Sy.No.49/3A, 3B and 3C. All the documents i.e., Exs.A1 to A3 produced by plaintiffs categorically prove the title of plaintiffs over plaint 'A' and 'B' schedule properties. It is clear that plaint 'B' schedule property i.e., 30 feet wide road is laid as per the approved lay out plan which is part and parcel of the property purchased by plaintiffs under Ex.A1. It is further proved that after selling several plots, the plaintiffs still have 60 cents of land with them including plaint 'A' schedule property.

20. The pleadings of the plaintiffs are specific that it is the defendants who made constructions illegally in Plaint 'A' and 'B' schedule properties and encroached into the land of plaintiffs. The written statement of Defendant No.3 also substantiates the same that it

O.S.No.154 of 2012 8 A.S.C.J. Court, Kurnool.

is Defendant No.3 who is in occupation of the hut constructed by them.

The evidence as discussed above, including Ex.C1 Advocate

Commissioner Report, categorically prove that the hut of defendant No.3 is situated in plaint 'B' schedule property. Since the cause of action for the plaintiff, to institute the suit arose against Defendant No.3, in view of physical occupation of the said hut, plaintiff is entitled to institute the present suit against Defendant No.3.

21. Moreover, Defendant No.3 did not produce any evidence to prove that the area in which his hut is situated, had been Government land and it was allotted to his wife and as such the question of non- joinder of his wife as necessary party to the suit, does not arise.

Moreover, Defendant No.3 remained exparte without contesting the suit, after filing his written statement. Thus, all the oral and documentary evidence, including Ex.C1, categorically prove the constructions made by the defendants at the plaint schedule properties.

22. The unchallenged pleadings and evidence of PW.1 further categorically prove that the plaintiffs initiated action within the period of limitation against the defendants praying for removal of the illegal constructions. As such, the plaintiffs are entitled for declaration of their title over plaint 'A' schedule property and delivery of possession and for mandatory injunction for removal of constructions at plaint 'B' schedule properties and also for Permanent Injunction restraining the defendants from interfering with Plaint 'A' and 'B' Schedule Properties as prayed by the plaintiffs. These, issues are answered in favour of the plaintiffs.

23. ISSUE No.9:

In the result, the suit is decreed with costs, declaring that the plaintiffs are the absolute owners of Plaint ‘A’ Schedule Property and for delivery of its vacant possession and mandatory injunction for removal of

O.S.No.154 of 2012 9 A.S.C.J. Court, Kurnool.

constructions at Plaint ‘B’ Schedule property and also permanent injunction is granted restraining the defendants from interfering with

Plaint ‘A’ & ‘B’ Schedule premises, in any way, altering the nature of the property.

Dictated to Stenographer, transcribed by him, corrected, signed and

pronounced by me in open Court this the 25th day of July, 2018.

ADDITIONAL SENIOR CIVIL JUDGE,

KURNOOL.

Appendix of Evidence.

Witnesses examined.

For Plaintiffs For Defendants. P.W.1. K.VenkateswarluNil P.W.2. K.Nagaraju

Exhibits marked for the Plaintiffs.

Ex.A1 : Original Registered Sale Deed, dated 30.05.1988.

Ex.A2 : Layout plan in D.Dis.No.127 of 1970-71, dated 24.07.1971.

Ex.A3 : Original Registered Sale Deed, dated 23.03.2004.

Ex.A4 : Five colour photographs.

Ex.A5 : Office Copy of Legal Notice, dated 16.02.2012.

Ex.A6 : Three postal acknowledgement cards.

Ex.A7 : Two Unserved postal covers returned from Defendants No.3 & 6.

Ex.C1 : Commissioner Report.

Exhibits marked for the defendants.

Nil

ADDITIONAL SENIOR CIVIL JUDGE,

KURNOOL.

O.S.No.154 of 2012 10 A.S.C.J. Court, Kurnool.

Fair Judgment

O.S.No.154 of 2012

Dt. 25.07.2018

Part – I

O.S.No.154 of 2012 1 A.S.C.J. Court, Kurnool.

IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE,

KURNOOL.

PRESENT: Smt.P.Lakshmi Sarada,

Additional Senior Civil Judge, Kurnool.

Wednesday, the Twenty Fifth [25th] day of July, 2018.

ORIGINAL SUIT No.154 of 2012

Between

1. Sri Kategari Venkateswarlu, Son of late K.Nagappa, aged about 55 years, Hindu, resident of Door No.45/24-3G, Ashok Nagar, Kurnool.

2. Sri Syed Anwar Basha, Son of late Syed Khaleelullah Quadri, aged about 55 years, Muslim, resident of Door No.44/52-2, Roza street,Kurnool.… PLAINTIFFS.

And

1. Sri Venkateswarulu Goud, son of not known to plaintiff, aged 55 years, Hindu, resident of Plot No.404, Geetha Mukharjee Nagar, Behind Santosh Nagar, N.H.7 Road, Kurnool.

2. Smt.Rukminamma, Wife of Sri Venkateswarulu Goud, aged 50 years, Hindu, Plot No.404, resident of Geetha Mukharjee Nagar, Behind Santosh Nagar, N.H.7 Road, Kurnool.

3. Sri Madhu, Son of not known to Plaintiff, aged 32 years, resident of Geetha Mukharjee Nagar, Behind Santosh Nagar, N.H.7 Road, Kurnool.

4. Sri Raju, son of not known to plaintiff, aged 30 years, Hindu, RTC driver, resident of Geetha Mukharjee Nagar, Behind Santosh Nagar, N.H.7 Road, Kurnool.

5. Sri Birru Prathapa Reddy, Son of not known to Plaintiff, aged about 32 years, Hindu, resident of Door No.4-6-2(1), Near Saibaba Temple, Balaji Nagar, New Postal colony, Kurnool.

5. Sri Venkateswara Reddy, son of not known to Plaintiff, aged about ;37 years, Hindu, Tractor owner, resident of Baba Brindavan Nagar, Bellary Chowrastha, Kurnool. … DEFENDANTS.

*****

Suit for declaration that Plaintiffs are the absolute owners of plaint ‘A’ schedule property and delivery of vacant possession of the same and Mandatory injunction to demolish the entire constructions made in the plaint ‘B’ schedule premises and permanent injunction restraining the Defendants from making any constructions in Plaint ‘A’ & ‘B’ schedule premises in any way altering the nature of the property and for costs of the suit.

Plaint presented on 26-3-2012 and filed on 26-3-2012.

Jurisdiction Value of the Suit is Rs.1,93,330/- for declaration + Rs.5,000/- for mandatory injunction + Rs.5,000/- for Permanent

Injunction and Court Fee of Rs.4326/- + Rs.411/- + Rs.411/- = Rs.5148/- is paid under Section 24(a) & 26(c) of the A.P.C.F. and S.V. Act.

O.S.No.154 of 2012 2 A.S.C.J. Court, Kurnool.

The Cause of action for the Suit arose at Mamidalapadu, and the property situated at Mamidalapadu village, within the jurisdiction of this Court.

This Suit, coming on 24.07.2018, for hearing before me, in the presence of Sri S.Md.Ishaq, Advocate for the Plaintiffs, and the

Defendants remained exparte; and upon perusing the entire material available on record; and upon having been stood over for consideration till this day, this Court doth order and preliminary Decree as follows:

1. That the Suit be and the same is hereby decreed.

2. That the Plaintiffs are hereby declared that they are the absolute owners of Plaint ‘A’ Schedule Property and deliver its vacant possession.

3. That the Mandatory Injunction is hereby granted for removal of constructions at Plaint ‘B’ Schedule Property.

4. That the Permanent Injunction is hereby granted restraining the Defendants from interfering with Plaint ‘A’ & ‘B’ Schedule

Premises in any way altering the nature of the property.

5. That the Defendants do pay to the Plaintiffs a sum of

Rs.15,150/- being costs of the Suit.

Given under my hand and the seal of the Court, on this the 25th day of July, 2018.

ADDITIONAL SENIOR CIVIL JUDGE,

KURNOOL.

MEMORANDUM OF COSTS

For PlaintiffsFor Defendants Rs.Rs. Stamp on Plaint5148-00--- Stamp on Vakalat2-00-- Stamp on Process300-00--- Process Fees----- Advocate’s Fees 9650-00-- Jr. Advocate Fees --- Writing Charges------ Typing Charges50-00--- TOTAL 15,150-00 Ex-parte

ADDITIONAL SENIOR CIVIL JUDGE,

KURNOOL.

O.S.No.154 of 2012 3 A.S.C.J. Court, Kurnool.

PLAINT ‘A’ SCHEDULE PROPERTY DESCRIPTION:

Plot No.31 out of the Plots laid in land of Ac.2.00 in Sy.No.49/3A, 49/3B, 49/3C of Mamidalapadu village, D.Dis.No.127/7071 and bounded as below:

Boundaries:

East : 20 feet wide road;

West: Land of Venkatarami Reddy in Sy.No.49/2.

North: 30 feet road;

South: Plot No.3.

PLAINT ‘B’ SCHEDULE PROPERTY DESCRIPTION:

The space left for 30 feet road North of the Plot; and bounded as follows:

East : 30 feet wide road;

West: Remaining Road.

North: Plot No.54;

South: Plot No.31.

ADDITIONAL SENIOR CIVIL JUDGE,

KURNOOL.

O.S.No.154 of 2012 4 A.S.C.J. Court, Kurnool.

DECREE

O.S.No.154 of 2012

Date:- 25.07.2018

PART-I