Sri P. Subramanya Kumar

1

IN THE COURT OF THE IX ADDL DISTRICT JUDGE,(FTC) CHITTOOR.

PRESENT: Sri P.Subramanya Kumar B.Sc.,B.L. IX Additional District Judge,

Wednesday, 29TH(Twenty Nineth) day of February, 2012

A.S.NO. 147 OF 2004

O.S.NO.356 OF 2002

3rd Addl. Junior Civil Judge, Chittoor.

Between T.Ashok.

...Appellant

And

1.Smt T.Amaravathamma, 2.Smt K.Parvathamma, 3.Smt K. Suseela, 4.T.Mohan.

...Respondents

On appeal from the Judgment and Decree of the 3rd Additional Junior Civil Judge, Chittoor Dt.16.8.2004 made in O.S.NO.356 of 2002.

Between:

1. Smt T.Amaravathamma,

2. Smt K. Parvathamma,

3. Smt K.Suseela.

...Plaintiffs

And

1.T.Ashok, 2.T.Mohan.

...Defendants

This Appeal is coming on 23.1.2012 before me for final hearing in the presence of Sri K.Madhava Naidu., Advocate for Appellant, and of Sri M.S.Yoganand, Advocate for the Respondents 1 to 3, and 4th respondent called absent., and upon perusing the Grounds of Appeal,and material papers on record and having stood over for consideration till this day, this court made the following;-

J U D G M E N T

This is an appeal suit filed by the Appellant/1st

Defendant aggrieved against the Judgment and Decree passed in 2

O.S.NO.356/2002 on the file of 3rd Additional Junior Civil

Judge, Chittoor dt.16.8.2004.

2. For the sake of convenience, the respondents herein who are plaintiffs in the suit shall be termed as plaintiffs while the appellant who is 1st defendant in the suit, and the 4th respondent who is 2nd defendant in the suit shall be as 2nd defendant while discussing the grounds of appeal.

3.The plaintiff has filed the suit in O.S.No.356/2002 to declare the sale of the suit property by executing court held on 16.8.2000 as illegal, void being vitiated by fraud playing by the defendants , and to cancel the sale of the suit properties by court dt.16.8.2000 and to set-aside the same; and to raise the attachment over the suit property which are made absolute on 18.12.1998.

4. The material averments of the plaint are as follows:

The 1st plaintiff is the mother of the plaintiffs 2 & 3 and 2nd defendant and all of them are succeeded to the estate of her husband late T.Munirathnam. 2nd defendant is the only son of late Munirathnam, 1st plaintiff and 1st defendant is the cousin of 2nd defendant. 1st defendant obtained collusive money decree in O.S.NO. 903 of 1998 against the 2nd defendant on the file of 1st Addl. Junior Civil Judge, Chittoor. The debt borrowed by the 2nd defendant from the 1st defendant are not for the benefits of family of plaintiffs. Late Munirathnam and 2nd defendant divided about sixteen years back and as such the debt incurred by the 2nd defendant is nothing to do with the plaintiffs. The 2nd defendant was leading way-ward life with 3 bad habits and as such there is no obligation on the part of

Munirathnam to discharge the debt of 2nd defendant. 1st defendant got attachment of the suit property before Judgment in I.A.NO. 1414 of 1998 in O.S.NO. 903 of 1998 and the said attachment was made absolute on 18.12.1998 and subsequently the suit was also decreed against the 2nd defendant and the 1st defendant filed OEP.NO. 238 of 1999 for sale of the suit property and just before execution of sale late Munirathnam filed a claim petition u/or 21 rule-58 of C.P.C, for raising attachment over the suit property and the same application was dismissed in limini as it is filed at belated stage and the sale was held on 16.8.2000 and the 1st defendant stood as highest bidder for the said sale and late Munirathnam filed

C.M.R. (SR) No.5191/2001 before the Hon'ble High Court of

A.P., against the dismissal order of claim petition, and during the pendency of the said appeal the said Munirathnam died leaving behind him the plaintiffs as his legal heirs and all plaintiffs were brought on record in the said C.M.A. The

Hon'ble High Court of A.P., dismissed the said C.M.A on

15.10.2001 observing that the remedy for the petitioner is to file a separate suit but not appeal against the dismissal of the claim petition. The suit property is the self acquired property of late Munirathnam and he purchased the same under the registered sale deed dt.11.2.1966 and divided sixteen years ago from the 2nd defendant and as such the sale held by the executing court on 16.8.2000 is not valid and not binding on the plaintiffs and the share of the plaintiffs cannot be put to sell in the auction. Hence, the suit seeking cancellation of the sale held by the executing court and also for raising attachment.

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5.The defendant No.1 filed his written statement. The 2nd defendant remained exparte. The material averments of it are as follows:- The 2nd defendant is the manager of the plaintiffs family. Munirathnam and himself borrowed amounts from the 1st defendant by executing two separate pronotes. The plaintiffs are also well aware of the execution of the said pronotes in favour of the 1st defendant and for the benefit of joint family of the 2nd defendant. The 2nd defendant and his father

Munirathnam has not divided sixteen years back as stated by the plaintiffs. The 2nd defendant mortgaged the suit property tothePrimaryAgriculturalCo-operativeSociety,

Thambuganipalle and the society brought the suit property for auction and in OEP.NO. 450/99-2000 and the 1st defendant deposited the said amount also and the suit property is not the self acquired property of late Munirathnam and the same is joint family property which is acquired for the benefits of joint family and the sale held by the executing court on 16.8.2000 is valid one and there is no collusive between the 1st and 2nd defendants as stated by the plaintiffs. The other allegations of the plaint are coined for the purpose of this suit. The 2nd and 3rd plaintiffs are already married long back and settled at their in-laws. The plaintiffs have no right over the suit property and there is no cause of action for the suit and sought for dismissal of the suit.

6. Basing on the above pleadings the following issues are settled for trial by the learned Lower Court.

1]Whether the plaintiffs are entitled for the relief of declaring the sale of the suit property by executing court held on 16.8.2000 as illegal, void being vitiated by fraud played by the defendants ?

2]Whether the sale of the suit properties by the court dt.16.8.2000 is liable for set-aside?

5 3] Whether the attachment over the suit schedule properties which was made absolute on 18.12.1998 ?

4]To what relief ?

8. Before the learned lower court, on behalf of the plaintiff Pws 1 to 3 were examined by marking Ex.A1 to Ex.A5, and Ex.X1. On behalf of the defendants DW.1 to Dw.3 were examined by marking Ex.B1 to Ex.B6.

9.Basing on the record available, the learned 3rd Addl.

Junior Civil Judge, Chittoor had Decreed the suit to the extent of the share of the plaintiffs in the suit property and the sale held by the executing court dt.16.8.2000 is declared as null and void and the same is set aside to the extent of 3/4th share of the plaintiffs with costs. Aggrieved against the said judgment and decree the present appeal has been preferred by the appellant/1st defendant.

10. The material averments of the Memorandum of Grounds of Appeal are as follows:-

The lower ought in its Judgment clearly comes to the conclusion that the 2nd defendant got filed the suit in collusion with the plaintiffs, as such the entire suit ought to have been dismissed in limini.

The lower court given a finding that Pw2 falsifies the version of Pw1 and Pw2 and there is totally inconsistency in the evidence of Pw1 to Pw3. Except the inconsistent version of Pw1 and Pw2 and Dw1 no other piece of evidence is let out by the plaintiffs to show that the suit property is self acquired property of late Munirathnam and the respondents utterly failed to prove their case that the suit property is the self acquired property of late Munirathnam and on this ground itself the suit has be to be dismissed.

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The lower court given a finding that Dw1 Mohan is behind the back of litigation and further come to the conclusion that the suit is filed by Dw1 in collusion with the plaintiffs who are none other than his mother and sisters. After coming to the conclusion the suit is filed by Dw1 in collusion with the plaintiffs the lower court ought to have dismissed the suit and further come to conclusion that the plaintiffs and 2nd defendant got filed the suit to defraud the appellant. Merely because the suit is collusive suit, the rights of the plaintiffs cannot be taken away either by the court or by the defendants and the lower court ought to have dismissed the suit.

The lower court ought to have come to conclusion that the property was attached by the appellant in IA.NO. 1414 of 1998 in O.S.NO. 903 of 1998 and the said attachment was made absolute on 18.12.1998 and the plaintiffs has come forward with false suit and at a belated stage. The finding of the lower court that the sale is null and void and the same is set aside to an extent of 3/4th share of the plaintiffs is against law and also against evidence. The lower court ought to have come to the conclusion that the suit property was under absolute possession and enjoyment of the 2nd defendant T.Mohan, on the ground that he already mortgaged the suit property to thePrimaryAgricultureco-operativesocietyof

Thambuganipalle village and when the said society brought for sale the appellant discharged the loan and in evidence they filed payment received under Ex.A3.

The lower court ought to have been given a finding that the sale held by the executing court dt.16.8.2000 is correct by confirming the sale.

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11. Basing on the above Grounds of Appeal the point that arise for consideration are as follows:-

1. Whether the suit schedule property is the self acquired property of late Munirathnam ?

2. Whether merely the plaintiffs and 1st defendant have collusively filed the suit are enough circumstances to decree the suit?

3. Whether the learned III Additional Junior Civil Judge, Chittoor has been properly appreciated the oral and documentary evidence placed before him while decreeing the suit?

12. Admittedly the 1st plaintiff is the wife of late

Munirathnam and Plaintiffs 2 & 3 are her daughters, and 2nd defendant is the son of Munirathnam. It is contended by the plaintiffs that the 2nd defendant is addicted to bad vices and borrowed money from the 1st defendant to meet his bad vices and in the said process both the defendants 1 and 2 are colluded together and brought the suit property for sale in order to deprive the rights of the plaintiffs. It is further contended by the plaintiffs that since the said debt borrowed by the 2nd defendant is not for the joint family benefits, and as such the sale held by the court to discharge his debt borrowed by the 2nd defendant from the 1st defendant is not binding on the plaintiffs.

13. POINTS 1 & 2:- Admittedly, the 2nd defendant is the only son of late Munirathnam, 1st plaintiff, 1st defendant is the cousin of 2nd defendant. It is not in dispute that the 1st defendant obtained money decree in O.S.NO. 903 of 1998 against the 2nd defendant on the file of 1st Additional Junior Civil

Judge, Chittoor for the debts borrowed by the 2nd defendant.

As seen from the record 1st defendant has not borrowed amount for the benefit of the family of the plaintiffs. It is 8 contended by the plaintiffs that late Munirathnam and 2nd defendant divided about sixteen years back, and as such, the debt incurred by the 2nd defendant is nothing to do with the plaintiffs. It is further contended by the plaintiffs, 2nd defendant is addicted to bad vices and as such there is no obligation on the part of Munirathnam to discharge the debts of 2nd defendant. It is not in dispute that 1st defendant got attached the suit property before Judgment in IA.NO.1414 of 1998 in O.S.No.903 of 1998 which was made absolute on 18.12.1998. Subsequently the said suit was also decreed against the 2nd defendant and the 1st defendant filed OEP.NO.

238 of 1999 for sale of the property and just before the execution of sale admittedly late Munirathnam filed a claim petition under order-21 Rule-58 C.P.C., for raising over the attached property which was dismissed on the ground that it was filed at a belated stage, and admittedly the sale was held on 16.8.2000 and the 1st defendant was stood as highest bidder for the said sale, and late Munirathnam filed C.M.A.(SR)

No.5191/2001 before the Hon'ble High Court of A.P., against the dismissal order of the claim petition and the during the said appeal late Munirathnam admittedly died leaving behind him, the plaintiffs as his legal heirs and all the plaintiffs were brought on record in the said C.M.A. Admittedly the said

C.M.A., ended in dismissal before the Hon'ble High Court of

A.P., on 15.10.2001 whereunder the Hon'ble high Court observed that remedy for the plaintiffs is to file a separate suit, but not the appeal against the dismissal of the claim petition.

14. It has been specifically averred by the plaintiffs that the suit schedule property is the self acquired property of late Munirathnam who purchased the same under registered 9 sale deed dt.11.2.1966 and divided sixteen years ago from the 2nd defendant, and as such the sale held by the executing court on 16.8.2000 is not valid and not binding on the plaintiffs and the share of the plaintiffs cannot be put to sale in the said auction. Therefore, the plaintiffs filed the suit seeking cancellation of said sale for raising attachment. In the evidence of Pw1, during the course of cross-examination stated that the suit property was purchased by her husband late Munirathnam on 11.2.1996 under Ex.A3 and the same was allotted to late Munirathnam in the family partition taken place between the 2nd defendant and late Munirathnam under

Ex.A5. A perusal of Ex.A3 sale deed dt.11.2.1966 reveals that late Munirathnam purchased the suit property from its rightful owner i.e., the parties to the partition deed under Ex.A5, the part of the partition deed showing the “B” schedule mentioned property allotted to one of the parties to the said document i.e., Munirathnam. For the best reasons known to the plaintiffs, they did not choose to file full partition deed covered under Ex.A5. As already mentioned supra that the evidence of Dw1 discloses that suit schedule property was allotted to the share of her husband late Munirathnam under

Ex.A5 which was taken place in between Munirathnam and 2nd defendant. The contents of Ex.A5 reveals that the partition was taken place among Radhamma, Munirathnam, Amaravathamma,

Krishnaiah, Chengalrayudu and Amruthamma and they are the parties to the said partition deed since their signatures are shown, but the body of the document under Ex.A5 is not filed in order to appreciate that the 2nd defendant is a party to the said partition deed or not. The signature of 2nd defendant is also not found place under Ex.A5. Admittedly, the 2nd 10 defendant is examined as Dw1 without filing entire partition deed under Ex.A5 it cannot be held that the suit property was divided between the 2nd defendant and Munirathnam. In the cross-examination of Pw1 deposed that herself and her son divided two years ago. On the other hand, Ex.A5 reveals that the said partition took place in the year 1973 itself, but not two years ago as stated by Pw1. The son of Pw1 who is examined as Dw1 discloses that the suit property was allotted to the share of his father Munirathnam in oral partition which was taken place 15 years ago. As mentioned supra, Pw1 has stated in her plaint as well in her evidence that the property was divided in between her husband and 2nd defendant under

Ex.A5 and the suit property was allotted to the share of

Munirathnam under Ex.A5, but whereas Dw1 deposed that only oral partition effected about 15 years ago and the suit property was allotted to the share of his father Munirathnam.

Thus, admittedly there is a discrepancy in the evidence of Pw1 as well as Dw1 who are not sure about how many years back partition effected between Munirathnam and 2nd defendant.

15. Pw2 has disclosed that the suit schedule property is the self acquired property of Munirathnam and the same was allotted towards share of Munirathnam and the partition took place between Munirathnam and his brother about 16 years back.

The evidence of Pw2 falsifies the contention of Pw1 and there is total inconsistency in the evidence of Pw1, Pw2 and Dw1.

Except the inconsist evidence of the above witnesses, the plaintiffs have not placed any other piece of evidence to show that the suit property is the self acquired property of late

Munirathnam.

16. It is disclosed by Pw2 that he has come to the court 11 to give evidence on the request of Dw1 Mohan who brought him to the court. The evidence of Pw3 discloses that he gave boundaries to the suit property at the time of giving evidence which are not tallied with the boundaries mentioned in the schedule properties mentioned in the plaint. The said piece of evidence establishes that Dw1 Mohan is behind back of the litigation and plaintiffs in the collusion with him have filed the present suit. The learned counsel for the defendants contended that since the suit is filed by the plaintiff in collusion with Dw1, the plaintiffs are not entitled for the relief of declaration. At this juncture, it is pertinent to see the evidence of Pw1 who during the course of cross- examination deposed that she does not know whether she was added as a party to the suit proceedings under Ex.A1 in the

C.M.A., filed by late Munirathnam before the Hon’ble High

Court of A.P., the above ignorance pleaded by Pw1 about herself added in the C.M.A., as a party or not testified that the suit is filed in collusion with Dw1.

17. The contention of Dw2 who is auction purchaser is that

Dw1 borrowed money from him for his joint family necessities and as such the joint family properties of plaintiff and 2nd defendant who is Dw1 is liable for discharge of the amount and in the said process the suit property was brought for sale and he became highest bidder, as such the sale cannot be set aside. Ex.A3 registered sale deed reveals that the plaint schedule property was purchased by Munirathnam. Ex.A5 reveal that the suit property was divided among Munirathnam and his brother long back. Ex.A3 and Ex.A5 combined reading reveals that the suit property is the joint family property of

Munirathnam and his family members. It is admitted by Dw1 12 that the entire family are not added as parties to the money suit under which the suit property was attached before

Judgment, and even otherwise, no proof is filed by the defendant to show that the decree obtained against the Joint family of the plaintiffs and 2nd defendant. Dw2 admitted that

Dw1 alone borrowed money from him and he filed the suit against the Dw1 and obtained money decree and he purchased the suit schedule property in auction. The suit property belongs to the grand father of Dw1 Mohan and the evidence of Dw3 that the suit schedule property is not self acquired property of

Mohan and it is the joint family property of Munirathnam and his family members. When the suit property is the joint family property of late Munirathnam naturally after the death of Munirathnam the plaintiffs who are the children of

Munirathnam and Dw1 who is the son of Munirathnam are equally entitled to the share in the suit property, and as such, the share of the plaintiffs 1 to 3 cannot be held sold without their consent for the debts contracted by Dw1. Merely on the ground that the suit is filed by Dw1 in collusion with the plaintiffs 1 to 3 as rightly observed by the learned III

Additional Junior Civil Judge, Chittoor the rights of the

plaintiffs cannot be taken away and the same cannot be sold in execution, and hence, the sale held by the executing court under Ex.A5 sofar as the shares of the plaintiffs 1 to 3 concerned is not binding on the plaintiffs and same is liable to be set aside. Accordingly, I answered the points 1 and 2 against the Appellant and in favour of the plaintiffs.

18. POINT NO.3:- In view of my observations on points 1 and 2, I hold that the learned III Additional Junior Civil

Judge, Chittoor has properly appreciated the evidence and

13 documents placed before him, and the finding of the learned

III Additional Junior Civil Judge, chittoor on issue No.4 decreeing the suit to the extent of share of the plaintiffs in the suit property, and the sale held by the executing court dt.16.8.2000 is null and declared as void and the same is set- aside to the extent of 3/4th share of the plaintiffs with costs is confirmed.

19. In the result, the appeal is dismissed without costs by confirming the Judgment and Decree of learned III

Additional Junior Civil Judge, Chittoor in O.S.NO.356 OF 2002

DT.16.8.2004

Dictated to Personal Assistant, after his transcription

corrected by me and pronounced in the open court, this the 29TH day of February, 2012.

IX ADDITIONAL DISTRICT JUDGE,

(FTC) CHITTOOR.

14

FAIR JUDGMENT IN

AS.NO.147 OF 2004

DT.29.2.2012

IN THE COURT OF THE IX ADDITIONAL DISTRICT JUDGE

(FAST TRACK COURT ), CHITTOOR.

Present: Sri P.Subramanya Kumar,B.Sc., B.L., IX Additional District Judge, (Fast Track Court), Chittoor.

Wednesday, The Twenty ninth (9th ) Day of February, 2012

A. S.NO. 79 OF 2007.

Between: K.Basha.

..Appellant.

And: Ashok Kumar @ Anji

..Respondent.

On appeal against the judgment and decree passed by the learned Junior

Prl. Junior Civil Judge, Chittoor dated 15.12.2006 made in

O. S.NO. 458 OF 2001.

Between: K.Ashok Kumar @ Anji

..Plaintiff.

And: K.Basha.

..Defendant.

This appeal coming on 20.01.2012 for final hearing before me in the presence of Sri G.Vasantha Kumar, Advocate for the Appellant and of Sri

D.Rajendra Reddy, Advocate for the respondent and upon perusing the material documents available on record and the grounds of appeal and upon hearing the arguments on both sides and having stood over for consideration till this day, this court delivered the following:

Contd.2

A.S.79 of 2007

- 2 -

J U D G M E N T

This is an appeal filed by the appellant/ defendant, aggrieved against the

Judgment and decree in O.S.No.458 of 2001 on the file of Principal Junior Civil

Judge, Chittoor vide Judgment dt.15.12.2006. The appellant who is defendant in

the suit herein shall be termed as defendant, while the respondent, who is plaintiff in the suit, shall be termed as plaintiff while discussing the grounds of appeal.

2) The plaintiff filed the suit for recovery of Rs.10,800/- towards the arrears of monthly rent of Rs.300/- per month from April-1998 to April-2001 i.e., for 36 months from the defendant, in respect of schedule premises.

3) The material averments of the plaint are as follows :- Plaintiff is the owner of the plaint schedule property. Plaintiff acquired the said property under

Registered Will dt.27.08.1959 executed by K. Venkatarathnam Naidu, grand father of the plaintiff, who bequeathed all his properties in favour of plaintiff and his brothers by giving life interest to his wife Smt. K. Navaneethamma and after her demise, each items of property was given to each of his grand son. The plaint schedule property is given to the plaintiff. K. Venkata rathnam Naidu died in the year 1966, leaving behind the said Will as his last testament. From 1966 onwards the said K. Navaneethamma has enjoyed the property till her demise on 29.10.1981. During the life time of K. Navaneethamma, she executed a Registered

Simple Mortgage Deed dt.09.06.1980 for Rs.4,000/- in respect of plaint schedule property in favour of defendant. Initially she agreed to pay at 24% p.a on Rs.

4,000/- to the defendant. The said K. Navaneethamma has let out the said premises to the defendant to reside therein as tenant and both of them have entered into an oral agreement that Navaneethamma need not pay any interest to the plaintiff and

A.S.79 of 2007

- 3 - at the same time the defendant need not pay monthly rent of Rs. 120/- to the plaintiff grand mother late Navaneethamma. After demise of his grand mother K.

Navaneethamma, the plaintiff became absolute owner and he is in possession of the schedule premises and the defendant became tenant under the plaintiff therein.

The defendant has filed the suit in O.S.No. 19 of 1992 against the plaintiff and his elder brother demanding the payment of mortgage amount of Rs. 4,000/- together with interest thereon. Plaintiff was an innocent and no worldly-wise and his elder brother Mr. Bhaskar was negotiating with the defendant and subsequently committed default in contesting the suit properly and thereby the suit was decreed.

Subsequently in the month of August-1993 a mediation was held between the defendant and two elder brothers of the plaintiff and by collecting the rents on the suit amount the elders of the mediators namely G. Sathyam, Muneendraiah,

Prabhakar, Shanmuga Acahary, V.S.Gopal settled the matter by adjusting the monthly rents till August-1993. Reposing confidence on the defendant the brother of the plaintiff did not obtain any record and defendant has obtained a final decree in the year 1997 by playing fraud on the plaintiff and his brother in respect of mortgage amount of Rs.4,000/-. In connection with the mortgage decree the defendant filed E.P.No.558 of 1998 on the file of I Addl.Jr.Civil Judge, Chittoor for recovery of amount of Rs.20,000/-. Plaintiff has deposited the sum of Rs.

20,000/- by way of Chelan to the court on 26.04.2001 towards the discharge of mortgaged debt. The defendant has committed default in making payment of monthly rents either by paying cash or by adjusting the rents towards the interest on the mortgage debt of Rs.4,000/-. The plaintiff has filed RCC No. 13 of 1997 on the file of Prl.Jr.Civil Judge, Chittoor for eviction on the ground of willful default as well as for personal occupation. The defendant has given evidence as RW-1 and

A.S.79 of 2007

- 4 - admitted in his evidence about the said agreement adjusting the interest towards rents and that the defendant has not deducted the interest and claimed the total interest on the mortgaged amount and obtained a decree and consequently RCC

No. 13 of 1997 ended in dismissal on 05.06.2000 by observing that the plaintiff should not ask for eviction without discharging the mortgaged debt and further observed even if the respondent/ defendant is liable to pay rents the same can be adjusted, after the amount payable under the mortgage deed as per calculations.

The plaintiff filed RCA No.11 of 2000 on the file of Prl.Sr.Civil Judge, Chittoor, which is pending. The defendant has been continuously residing in the plaint schedule premises without paying any monthly rents since September -1993. The plaintiff is entitled to recover the monthly rents from the defendant since

September 1993 at the rate of Rs.300/- per month, but subject to the limitation in claiming the rents the plaintiff is claiming the rents at the rate of Rs. 300/- per month from April, 1998 till end of April-2001.

4) The material averments of the Written Statement filed on behalf of the defendant are as follows :- Plaint averments are denied in to-to. The averments in the plaint in Para 5 of the plaint are admitted by the defendant. It is true that K.

Navaneethamma agreed to pay interest on mortgage debt of Rs.4,000/- to the defendant. It is true that the defendant is residing in the schedule as tenant. Apart from the said mortgage debt of Rs.4,000/-, which was borrowed by K.

Navaneethamma under Registered Mortgage Deed dt.09.06.1980, she also borrowed Rs.4,000/- and further a sum of Rs.1,000/- in the year 1980 and she promised to repay the same with interest. Plaintiff borrowed a sum of Rs.4,000/- from the defendant in the presence of B. Yarrappa. The plaintiff undertook to repay the amount borrowed by his grand mother Navaneethamma and also the amount

A.S.79 of 2007

- 5 - borrowed by him, but the plaintiff failed to discharge the same and he evaded to discharge the same on one ground or other. Hence the defendant filed the suit in

O.S.No. 19 of 1992 on the file of Principal Junior Civil Judge, Chittoor for

recovery of the mortgage debt, but the plaintiff deposited the amount due under the decree in to the court. After the E.P.No.558 of 1998 filed by the defendant, the plaintiff deposited the amount. It is false to contend that Navaneethamma need not pay interest on the amounts borrowed by her. It is denied that after demise of

Navaneethamma plaintiff became absolute owner of the schedule property and he is in possession of the same and the defendant became tenant under the plaintiff.

The other contentions raised in the plaint are denied in to-to. The defendant is paying rents regularly at the rate of Rs. 120/- per month to the plaintiff’s brother and he never committed default in payment of monthly rents. From the beginning there was no practice in issuing rent receipts. Taking advantage of the same, now the plaintiff has come forward with false plea that the final decree in the above suit obtained by playing fraud by this defendant against the plaintiff and his brother in respect of mortgage deed. This defendant never became default of rents, much so from September-1991 he is regularly paying rents to the brother of the plaintiff, since long time.

5) Basing on the above pleadings the following issues are settled before the lower court for trial :-

1) Whether the plaintiff is entitled for the decree as prayed for ?

2) To what relief ?

6) On behalf of the plaintiff PW 1 to 3 are examined by marking Ex.A1 to

A5, on behalf of defendant DW-1 and DW-2 are examined by marked Ex.B1 to

B4.

A.S.79 of 2007

- 6 -

7) Basing on the material placed before the learned Prl.Jr.Civil Judge,

Chittoor the suit was decreed with costs.

8) Aggrieved against the said Judgment and decree the defendant has preferred the present appeal under consideration. The material averments of the grounds of appeal filed on behalf of defendant are as follows :- The lower court erred in observing that the plaintiff is entitled to recover Rs. 10,800/- from the appellant/ defendant holding that the appellant is in arrears of rent from April-1998 to April-2001. The lower court would have accepted the plea of the appellant that the schedule property is in possession and enjoyment and in occupation of the appellants family since 1964 and that as on the date of Ex.B4 it is agreement in between the appellants family and the respondent’s family and on the basis of it no rent, no interest money transaction. The lower court ought to have considered the fact that the borrower of money by deceased Navaneethamma, the grand mother of the respondent from the mother of the appellant with a condition that the appellant’s family has continue in the schedule house and is not entitled to any interest on the ground lent by the appellant’s family to the respondent’s grand mother and is not entitled to collect rents from the family of the appellant from the suit schedule mentioned property. The lower court should have believed the Ex.B series documents and should have believed PW-1 & 2 evidence and thereby dismissed the suit and held that the respondent is not entitled any rent from the plaintiff. The lower court erred in observing that the mortgage debt is discharged by the respondents family. The mortgage decree is different from transaction under agreement Ex.B4. Hence requested to allow the appeal and set aside the decree and judgment dt. 15.12.2006 in O.S.No. 458 of 2001 on the file of Prl.Jr.Civil Judge,

Chittoor and dismiss the suit with costs throughout.

A.S.79 of 2007

- 7 -

9) Basing on the above grounds of Memorandum of Civil Appeal of the defendant, the points that arise for consideration in the appeal are as follows :-

1) Whether the learned Principal Junior Civil Judge, Chittoor has been properly appreciated the evidence in decreeing the suit ?

2) Whether as per Ex.B4 between the families of the appellant and respondent, there was an agreement with regard to non payment rent and no interest on money transaction?

10) POINTS No.1 & 2 :- It is not in dispute that as seen from the records the defendant filed the suit for basing simple mortgaged deed in O.S.No.19 of 1992 and obtained preliminary decree and thereafter final decree was passed and filed

E.P.No.558 of 1998 on the file of I Addl.Jr.Civil Judge, Chittoor in respect of

schedule mentioned property and the plaintiff deposited Rs.20,000/- towards redemption of the debt into the court. Even after the debt being discharged by the plaintiff, the defendant has not intended to withdraw the said amount, which was deposited by the plaintiff towards redemption of the mortgage debt. Admittedly the rent control petition filed by the plaintiff in RCA No.13 of 1997 ended in dismissal and rent control appeal RCA 11 of 2000 is pending before the rent controller appellate authority, which was subsequently allowed by rent controller appellate authority and the defendant was ordered to be evicted from the schedule mentioned property.

11) It is not in dispute that the defendant preferred a Revision against the orders passed in RCA No.13 of 1997 which is pending before the Hon’ble High court of A.P. As seen from the evidence of the respective parties placed before the lower court the defendant has discharged the mortgage debt due to the mortgaged property to the plaintiff. In the evidence of DW-1 admitted that he has not paid the

A.S.79 of 2007

- 8 - rents to the schedule mentioned property in which he is residing as it is being adjusted towards the interest for the loan of Rs.3,000/- due under Ex.B4 agreement

dt. 03.07.2004. Navaneethamma did not borrow the loan of Rs.3,000/- under the

agreement dt. 03.02.1974. As per the evidence of PW-1 a sum of Rs.20,000/- deposited into the court on 26.04.2001 towards redemption of the mortgage deed and as such the defendant is liable to pay the rent at the rate of Rs.300/- from the month of September-1993. No material has been placed by the defendant that he has paid the rent to the plaintiff. Hence plaintiff is entitled to recover the rents at the rate of Rs. 300/- from the defendant in respect of schedule mentioned property which is being admittedly under the occupation of the defendant. The plaintiff is entitled to recover the rents from April-1998 onwards and as such the plaintiff is entitled for suit amount of Rs. 10,800/- from the defendant along with subsequent interest and costs.

12) The learned counsel for the appellant/ defendant has filed Written submissions in the appeal as per the contentions in the Written Statement filed on behalf of defendant before the lower court. It is the main contention of the appellant/ defendant is that there is no recital in the mortgage deed Ex.A1 that the deceased Navaneethamma need not pay any interest and that the defendant need not pay the rent. The lower court accepted the plea of the appellant that schedule mentioned property is in possession and enjoyment occupation of the appellants family, since 1964 and as per Ex.B4 there is an agreement in between the appellants family and the respondents family on the basis of no interest and no interest on money transaction and as such it is contended by the learned appellant counsel the lower court ought to have consider the fact that borrowing of money by deceased Navaneethamma, grand mother of the respondent and appellant`s family

A.S.79 of 2007

- 9 - has to continue in schedule house and is not entitled for any interest on any amount lent by the appellants family to the respondents grand mother and the plaintiff is entitled to collect rent from the appellant`s family for the suit property. I am unable to concede with the contention of the learned counsel for the appellant as the plaintiff admittedly deposited Rs. 20,000/- towards redemption of the mortgage amount in the E.P filed by the defendant and as such it has not been explained by the appellant/ defendant, how he is not entitled to pay the rents as claimed by the plaintiff, though the defendant is in possession of the schedule mentioned property.

Thus the defendant has not established by adducing any evidence that as per Ex.B4 a conditional agreement, he need not pay the rent and the plaintiff need not pay interest. I find that the learned Junior civil Judge, Chittoor by properly appreciating the oral and documentary evidence placed before him, he has decreed the suit.

Accordingly I hold point Nos. 1 & 2 against the appellant/ defendant and in favour of respondent/ plaintiff.

13) For the reasons discussed supra the appeal filed by the defendant is liable to be dismissed.

14) In the result, the appeal filed by the appellant is dismissed without costs.

The judgment and decree passed by the learned Principal Junior Civil Judge,

Chittoor in O.S.No.458 of 2001 on the file of Principal Junior Civil Judges Court,

Chittoor vide Judgment dt. 15.12.2006 is hereby confirmed.

Direct typed to my dictation to the typist corrected, and pronounced by me in the open court this the Twenty ninth (29th) Day of February, 2012.

Sd/- P.Subramanya Kumar,

IX Additional District Judge,

(FTC), Chittoor.

Fair Judgment in

A.S.79 of 2007

Dated: 29.02.2012

IN THE COURT OF THE IX ADDITIONAL DISTRICT JUDGE

(FAST TRACK COURT ), CHITTOOR.

Present: Sri P.Subramanya Kumar,B.Sc., B.L., IX Additional District Judge, (Fast Track Court), Chittoor.

Wednesday, The Twenty ninth (9th ) Day of February, 2012

A. S.NO. 97 OF 2007.

Between: Ismail.

..Appellant.

And: 1.Theertha Giri 2.Muniyappa.

..Respondents.

On appeal against the judgment and decree passed by the learned Junior

Junior Civil Judge, Kuppam, dated 08.05.2007 made in

O. S.NO. 157 OF 2006.

Between: Theertha Giri

..Plaintiff.

And: 1.Ismail Saheb 2.Muniyappa.

..Defendants.

This appeal coming on 20.01.2012 for final hearing before me in the presence of Sri B.Eswar Reddy, Advocate for the Appellant and of Sri G.Vasantha

Kumar, Advocate for the 1st respondent and of Sri D.Reddeppa Reddy, Advocate for 2nd respondent and upon perusing the material documents available on record and the grounds of appeal and upon hearing the arguments on both sides and having stood over for consideration till this day, this court delivered the following:

Contd.2

A.S.97 of 2007

- 2 -

J U D G M E N T

This is an appeal filed by the appellant/ defendant against the Judgment and decree in O.S.No.157 of 2006 on the file of Junior Civil Judge, Kuppam vide

Judgment dt. 08.05.2007.

2) For the sake of convenience the appellant herein who is defendant in the suit is termed as defendant, while the respondent herein who is plaintiff in the suit is termed as plaintiff, while discussing the grounds of appeal.

3) Admittedly the plaintiff filed the suit for recovery of Rs. 13,253/- from the defendants 1 & 2 jointly and severally, being due on suit promissory note with future interest and costs. The defendants jointly borrowed Rs. 10,000/- from the plaintiff on 29.03.2004 and executed the suit promissory note, promising to repay the same with interest at 24% p.a, but failed to pay in spite of repeated demands.

4) The material averments of the Written Statement filed on behalf of the 1st defendant are as follows :- This defendant never executed the suit promissory note, nor he received Rs. 10,000/- from the plaintiff under the promissory note. The

Plaintiff took some signatures of this defendant on the blank stamped papers in the transaction relating to Saw Mill owned by the plaintiff. The plaintiff became due

Rs. 7,000/- to this defendant, since the defendant supplied mango tree wood to said

Saw Mill of the plaintiff. The suit promissory note is forged and fabricated one.

Hence requested to dismiss the suit.

5) Basing on the above pleadings the following issues are settled for trial

before the lower court.

1) Whether the defendants executed the suit promissory note in favour of plaintiff?

A.S.97 of 2007

- 3 -

2) Whether the suit promissory note is fabricated one.

3) Whether the suit promissory note is not supported by consideration?

4) To what relief ?

6) On behalf of the plaintiff before the lower court Ex.A1 & A2 are marked.

The defendants did not examine any oral evidence and marked Ex.B1 & B2 through PW-1.

7) Basing on the oral and documentary evidence placed by the plaintiff, the learned Junior Civil Judge, Kuppam has decreed the suit in part for Rs. 9,753/- together with subsequent interest of Rs. 6,500/- at 12% p.a and the rest of the suit claim dismissed by him without costs.

8) Aggrieved against the said Judgment and decree the 1st defendant has filed the present appeal under consideration. The material averments of the grounds of appeal are as follows :- The learned lower court has not properly appreciated the law and facts in the contentions raised by the 1st defendant in the

Written Statement and evidence elicited in cross examination of PW-1, the findings of the lower court are one sided and not reflected the defence of the 1st defendant. The lower court failed to look into the aspect of material alterations on

Ex.A1 which was admitted by the plaintiff while in witness box. The lower court failed to appreciate the evidence in cross examination of PW-1 to the effect of having filed money suit i.e., evidence of PW-1 having failed to produce money lending license and finally Income Tax Returns and as such the suit ought to have dismissed by the lower court. The lower court failed to note that the fact of suppression of facts by the plaintiff in the suit with regard to the payments made by the 1st defendant to dismiss the suit. Even calculation of the decree amount made

A.S.97 of 2007

- 4 - by the lower court is wrong. The lower court failed to deduct the admitted payment of amount under Ex.B2 of Rs. 3,500/-, which was paid on 27.07.2004 as per

Ex.B2. The lower court erred in deducting the amount of Rs. 3,500/- from the suit claim of Rs. 13,253/- and decreed the suit for Rs. 9,753/-.

9) Basing on the above grounds of appeal, the points that arise for consideration in appeal are as follows :-

1) Whether there are material alterations on the suit promissory note under

Ex.A1, which has been properly appreciated by the learned lower court or not?

2) Whether the learned Junior Civil Judge, Kuppam has properly appreciated the evidence of PW-1, more particularly for his not filing money lending licesence and not filing Income Tax Returns?

3) Whether there is any nexus in respect of payment of Rs. 3,500/- under

Ex.B2 by the 1st defendant to the plaintiff to the suit debt amount?

10) POINT NO. 1:- Admittedly the plaintiff himself examined as PW-1

before the lower court. The Written Statement filed on behalf of 1st defendant/

appellant before the lower court revealed that he has denied the suit promissory note and specifically contended that it is a fabricated document. It has been admitted by plaintiff as PW-1 that Ex.A1 promissory note in Column Number relating to the place is found kept blank. Though at the first instance PW-1 denied to a suggestion put to him that dates in Ex.A1 was found in written in pencil by erased while noting the dates with pen. But again he admitted the same, it is admitted by him that beneath the thumb impression on Ex.A1 promissory note the dates are found mentioned and the name of thumb impressionist is found written

A.S.97 of 2007

- 5 - with pencil before filing of the suit. The promissory note was filled by PW-1 that just before filing of the suit, the promissory note was filled up by PW-1 by erasing pencil marks. As seen from the naked eye under the thumb impression of the defendant on Ex.A1, the name is found written with pencil. Therefore as rightly contended by the learned counsel for appellant, the suit promissory note is a fabricated document and got filled up the promissory note and filed by the plaintiff

before filing of the suit. Accordingly I hold that the suit promissory note is a

fabricated document.

11) The learned Junior Civil Judge, Kuppam has observed in his Judgment

U/Sec. 20 of N.I.Act, the defendant cannot contend that the plaintiff obtained signatures on blank promissory note from them and therefore opined that the burden is shifted on the defendants to rebut the presumption laid U/Sec. 118 of

N.I.Act that a promissory note is genuine one and it is supported by consideration and the burden is shifted on the defendants, who did not adduce any evidence and as such U/Sec.20 of N.i.Act the defendant cannot contend to dismiss the suit. In view of the admission of PW-1 about the non mentioning of the place of execution of document under Ex.A1 filling the promissory note with pencil and filling the promissory note before filing of the suit amounts to fabrication of Ex.A1. If the plaintiff did not admit about the filling up the promissory note before filing of the suit and more particularly about the pencil impressions found under Ex.A1 the contention of the learned Junior Civil judge, Kuppam would have been for a reason that the plaintiff has discharged the burden of himself examining by marking

Ex.A1.

12)Thus for the reasons discussed supra that since the plaintiff failed to establish that Ex.A1 is a genuine document and in view of pencil marks found

A.S.97 of 2007

- 6 - under Ex.A1 under the signatures of 1st defendant. I hold that the suit promissory note under Ex.A1 is a fabricated document. Accordingly Point No.1 is answered in favour of 1st defendant as against the plaintiff.

13) POINT No. 2 :- It is contended by the plaintiff that he filed his Income

Tax Returns, but the same he has not filed into court. It is admitted by him that he has license to carry on business, which has been not filed into court. If really

Ex.A1 promissory note amount is genuinely given by the plaintiff t the defendants, the said money transaction would have been reflected in the Income tax Returns of the plaintiff which he failed to produce before the Court. Though PW-1 admitted that he has money lending business, but for the reasons known to him, the same has not been filed into court.

14) The learned Junior Civil Judge, Kuppam has failed to appreciate the non production of money lending license by the plaintiff and copies of Income Tax

Returns for the relating period of Ex.A1 debt I am of the opinion that the learned

Junior Civil Judge, Kuppam has been erred in appreciating the evidence placed by the plaintiff before him. Accordingly I hold point No.2 against the plaintiff.

15) POINT NO.3 :- Admittedly PW-1 discussed in the cross examination

Ex.B2 pocket diary bears the signature of the employee of the finance company that was given in total receipt of Rs. 3,500/- from the 1st defendant. It is admitted by PW-1 the writintg mentioned in Ex.B1 document is in his hand writings that is admitted by the PW-1 that he is running finance under the name and style of

Vishnu Vinayaka Finance Company. The plaintiff has suppressed the above factors in the plaint and filed the suit. Thus the plaintiff has failed to mention in the plaint about the payment made by the 1st defendant in respect of other transaction between the plaintiff and defendant. The said fact would have been discussed by

A.S.97 of 2007

- 7 - the learned Junior Civil Judge, Kuppam in his Judgment, which has been failed to do so. Accordingly point No.3 answered against the plaintiff.

16) In view of my observation on Point No.1 as the suit promissory note is fabricated one, the suit filed by the plaintiff is liable to be dismissed. In view of observation on Point No.1 the Judgment and Decree of the lower court is liable to be set aside and the suit in O.S.No. 157 of 2006 on the file of Junior Civil Judge,

Kuppam is liable to be dismissed, reversing the Judgment and decree in

O.S.No.157 of 2006.

17) In the result the appeal is allowed without costs. The Judgment and decree in O.S.No.157 of 2006 on the file of Junior Civil Judge, Kuppam is hereby set aside.

Direct typed to my dictation to the typist corrected and pronounced by me in the open court this the Twenty ninth (29th) Day of February, 2012.

Sd/- P. Subramanyam Kumar

IX Additional District Judge,

(FTC), Chittoor.

Fair Judgment in

A.S.97 of 2007

Dated: 29.02.2012

IN THE COURT OF THE IX ADDITIONAL DISTRICT JUDGE

(FAST TRACK COURT ), CHITTOOR.

Present: Sri P.Subramanya Kumar,B.Sc., B.L., IX Additional District Judge, (Fast Track Court), Chittoor.

Wednesday, The Twenty ninth (9th ) Day of February, 2012

A. S.NO. 97 OF 2007.

Between: Ismail.

..Appellant.

And: 1.Theertha Giri 2.Muniyappa.

..Respondents.

On appeal against the judgment and decree passed by the learned Junior

Junior Civil Judge, Kuppam, dated 08.05.2007 made in

O. S.NO. 157 OF 2006.

Between: Theertha Giri

..Plaintiff.

And: 1.Ismail Saheb 2.Muniyappa.

..Defendants.

This appeal coming on 20.01.2012 for final hearing before me in the presence of Sri B.Eswar Reddy, Advocate for the Appellant and of Sri G.Vasantha

Kumar, Advocate for the 1st respondent and of Sri D.Reddeppa Reddy, Advocate for 2nd respondent and upon perusing the material documents available on record and the grounds of appeal and upon hearing the arguments on both sides and having stood over for consideration till this day, this court delivered the following:

Contd.2

A.S.97 of 2007

- 2 -

J U D G M E N T

This is an appeal filed by the appellant/ defendant against the Judgment and decree in O.S.No.157 of 2006 on the file of Junior Civil Judge, Kuppam vide

Judgment dt. 08.05.2007.

2) For the sake of convenience the appellant herein who is defendant in the suit is termed as defendant, while the respondent herein who is plaintiff in the suit is termed as plaintiff, while discussing the grounds of appeal.

3) Admittedly the plaintiff filed the suit for recovery of Rs. 13,253/- from the defendants 1 & 2 jointly and severally, being due on suit promissory note with future interest and costs. The defendants jointly borrowed Rs. 10,000/- from the plaintiff on 29.03.2004 and executed the suit promissory note, promising to repay the same with interest at 24% p.a, but failed to pay in spite of repeated demands.

4) The material averments of the Written Statement filed on behalf of the 1st defendant are as follows :- This defendant never executed the suit promissory note, nor he received Rs. 10,000/- from the plaintiff under the promissory note. The

Plaintiff took some signatures of this defendant on the blank stamped papers in the transaction relating to Saw Mill owned by the plaintiff. The plaintiff became due

Rs. 7,000/- to this defendant, since the defendant supplied mango tree wood to said

Saw Mill of the plaintiff. The suit promissory note is forged and fabricated one.

Hence requested to dismiss the suit.

5) Basing on the above pleadings the following issues are settled for trial

before the lower court.

1) Whether the defendants executed the suit promissory note in favour of plaintiff?

A.S.97 of 2007

- 3 -

2) Whether the suit promissory note is fabricated one.

3) Whether the suit promissory note is not supported by consideration?

4) To what relief ?

6) On behalf of the plaintiff before the lower court Ex.A1 & A2 are marked.

The defendants did not examine any oral evidence and marked Ex.B1 & B2 through PW-1.

7) Basing on the oral and documentary evidence placed by the plaintiff, the learned Junior Civil Judge, Kuppam has decreed the suit in part for Rs. 9,753/- together with subsequent interest of Rs. 6,500/- at 12% p.a and the rest of the suit claim dismissed by him without costs.

8) Aggrieved against the said Judgment and decree the 1st defendant has filed the present appeal under consideration. The material averments of the grounds of appeal are as follows :- The learned lower court has not properly appreciated the law and facts in the contentions raised by the 1st defendant in the

Written Statement and evidence elicited in cross examination of PW-1, the findings of the lower court are one sided and not reflected the defence of the 1st defendant. The lower court failed to look into the aspect of material alterations on

Ex.A1 which was admitted by the plaintiff while in witness box. The lower court failed to appreciate the evidence in cross examination of PW-1 to the effect of having filed money suit i.e., evidence of PW-1 having failed to produce money lending license and finally Income Tax Returns and as such the suit ought to have dismissed by the lower court. The lower court failed to note that the fact of suppression of facts by the plaintiff in the suit with regard to the payments made by the 1st defendant to dismiss the suit. Even calculation of the decree amount made

A.S.97 of 2007

- 4 - by the lower court is wrong. The lower court failed to deduct the admitted payment of amount under Ex.B2 of Rs. 3,500/-, which was paid on 27.07.2004 as per

Ex.B2. The lower court erred in deducting the amount of Rs. 3,500/- from the suit claim of Rs. 13,253/- and decreed the suit for Rs. 9,753/-.

9) Basing on the above grounds of appeal, the points that arise for consideration in appeal are as follows :-

1) Whether there are material alterations on the suit promissory note under

Ex.A1, which has been properly appreciated by the learned lower court or not?

2) Whether the learned Junior Civil Judge, Kuppam has properly appreciated the evidence of PW-1, more particularly for his not filing money lending licesence and not filing Income Tax Returns?

3) Whether there is any nexus in respect of payment of Rs. 3,500/- under

Ex.B2 by the 1st defendant to the plaintiff to the suit debt amount?

10) POINT NO. 1:- Admittedly the plaintiff himself examined as PW-1

before the lower court. The Written Statement filed on behalf of 1st defendant/

appellant before the lower court revealed that he has denied the suit promissory note and specifically contended that it is a fabricated document. It has been admitted by plaintiff as PW-1 that Ex.A1 promissory note in Column Number relating to the place is found kept blank. Though at the first instance PW-1 denied to a suggestion put to him that dates in Ex.A1 was found in written in pencil by erased while noting the dates with pen. But again he admitted the same, it is admitted by him that beneath the thumb impression on Ex.A1 promissory note the dates are found mentioned and the name of thumb impressionist is found written

A.S.97 of 2007

- 5 - with pencil before filing of the suit. The promissory note was filled by PW-1 that just before filing of the suit, the promissory note was filled up by PW-1 by erasing pencil marks. As seen from the naked eye under the thumb impression of the defendant on Ex.A1, the name is found written with pencil. Therefore as rightly contended by the learned counsel for appellant, the suit promissory note is a fabricated document and got filled up the promissory note and filed by the plaintiff

before filing of the suit. Accordingly I hold that the suit promissory note is a

fabricated document.

11) The learned Junior Civil Judge, Kuppam has observed in his Judgment

U/Sec. 20 of N.I.Act, the defendant cannot contend that the plaintiff obtained signatures on blank promissory note from them and therefore opined that the burden is shifted on the defendants to rebut the presumption laid U/Sec. 118 of

N.I.Act that a promissory note is genuine one and it is supported by consideration and the burden is shifted on the defendants, who did not adduce any evidence and as such U/Sec.20 of N.i.Act the defendant cannot contend to dismiss the suit. In view of the admission of PW-1 about the non mentioning of the place of execution of document under Ex.A1 filling the promissory note with pencil and filling the promissory note before filing of the suit amounts to fabrication of Ex.A1. If the plaintiff did not admit about the filling up the promissory note before filing of the suit and more particularly about the pencil impressions found under Ex.A1 the contention of the learned Junior Civil judge, Kuppam would have been for a reason that the plaintiff has discharged the burden of himself examining by marking

Ex.A1.

12)Thus for the reasons discussed supra that since the plaintiff failed to establish that Ex.A1 is a genuine document and in view of pencil marks found

A.S.97 of 2007

- 6 - under Ex.A1 under the signatures of 1st defendant. I hold that the suit promissory note under Ex.A1 is a fabricated document. Accordingly Point No.1 is answered in favour of 1st defendant as against the plaintiff.

13) POINT No. 2 :- It is contended by the plaintiff that he filed his Income

Tax Returns, but the same he has not filed into court. It is admitted by him that he has license to carry on business, which has been not filed into court. If really

Ex.A1 promissory note amount is genuinely given by the plaintiff t the defendants, the said money transaction would have been reflected in the Income tax Returns of the plaintiff which he failed to produce before the Court. Though PW-1 admitted that he has money lending business, but for the reasons known to him, the same has not been filed into court.

14) The learned Junior Civil Judge, Kuppam has failed to appreciate the non production of money lending license by the plaintiff and copies of Income Tax

Returns for the relating period of Ex.A1 debt I am of the opinion that the learned

Junior Civil Judge, Kuppam has been erred in appreciating the evidence placed by the plaintiff before him. Accordingly I hold point No.2 against the plaintiff.

15) POINT NO.3 :- Admittedly PW-1 discussed in the cross examination

Ex.B2 pocket diary bears the signature of the employee of the finance company that was given in total receipt of Rs. 3,500/- from the 1st defendant. It is admitted by PW-1 the writintg mentioned in Ex.B1 document is in his hand writings that is admitted by the PW-1 that he is running finance under the name and style of

Vishnu Vinayaka Finance Company. The plaintiff has suppressed the above factors in the plaint and filed the suit. Thus the plaintiff has failed to mention in the plaint about the payment made by the 1st defendant in respect of other transaction between the plaintiff and defendant. The said fact would have been discussed by

A.S.97 of 2007

- 7 - the learned Junior Civil Judge, Kuppam in his Judgment, which has been failed to do so. Accordingly point No.3 answered against the plaintiff.

16) In view of my observation on Point No.1 as the suit promissory note is fabricated one, the suit filed by the plaintiff is liable to be dismissed. In view of observation on Point No.1 the Judgment and Decree of the lower court is liable to be set aside and the suit in O.S.No. 157 of 2006 on the file of Junior Civil Judge,

Kuppam is liable to be dismissed, reversing the Judgment and decree in

O.S.No.157 of 2006.

17) In the result the appeal is allowed without costs. The Judgment and decree in O.S.No.157 of 2006 on the file of Junior Civil Judge, Kuppam is hereby set aside.

Direct typed to my dictation to the typist corrected and pronounced by me in the open court this the Twenty ninth (29th) Day of February, 2012.

Sd/- P. Subramanyam Kumar

IX Additional District Judge,

(FTC), Chittoor.

Fair Judgment in

A.S.97 of 2007

Dated: 29.02.2012

1

IN THE COURT OF THE IX ADDITIONAL DISTRICT JUDGE, CUM

-CHAIRMAN -MOTOR ACCIDENTS CLAIMS TRIBUNAL- (FTC) CHITTOOR.

PRESENT: Sri P. Subramanya Kumar, B.Sc., B.L., IX Additional District Judge.

Wednesday, the 29th day(Twenty Ninenth) of February, 2012

M.V.O.P.No. 225 of 2007

Between:

1. Shabana,(died)

2. Julekabee. (2nd petitioner is added as per orders in IA.NO. 958/08 dt.22.3.11.) … Petitioners

And: A.P.S.R.T.C. Rep. By its Branch Manager, Hyderabad. … Respondents

This petition coming for final hearing before me on 20.1.2012 in the presence of Sri B.Eswara Reddy, Advocate for the Petitioner and of Sri P. Ravindrantha Reddy, Advocate forthe Respondent,and upon perusing the petition and other papers on record, and having stood over for consideration, this court, delivered the following;-

O R D E R

This is a petition filed by the 1st petitioner and 2nd petitioner who is added as per orders in IA.NO. 958 of 2008 dt.22.3.2011 as legal heir of the deceased Shabana under

Sec.166 of M.V.Act read with Rule-475 of A.P.M.V. Rules requesting to pass an award in favour of the 1st petitioner directing the respondent to pay the petitioner a sum of

Rs.3,00,000/- as compensation with interest at 18% p.a., from the date of accident till the date of payment with costs.

2.The material averments of the petition are as follows:

On 3/12/2006 at about 5.30 P.M., near N.T.R statute junction on Puttur-Chittoor Road, Chittoor town the deceased proceeding on his cycle towards old Municipal bus stand,

Chittoor the driver of the A.P.S.R.T.C bus bearing No.AP11Z 4443 drove the same in rash and negligent manner without taking due care and caution, lost control over the vehicle and 2 dashed the deceased from his behind and caused his instantaneous death. The said accident was registered by the

S.I. Of police I town PO.S., Chittoor in Crime No.156 of 2006 for the offence u/s 304-A of I.P.C., 134(b) read wit 187 of

A.P.M.V. Act., against the driver of the respondent and he was charge sheeted before the file of IV Addl. Judicial Magistrate of 1st Class, Chittoor in C.C.NO.483 OF 2007. The deceased was aged 16 years as on the date of accident and he was working in Glass cutting works and getting an income of Rs.2,000/- per month and he was contributing to the petitioner. The father of the deceased already died, due to the death of his son in the said accident his mother committed suicide. The petitioner is the sister of the deceased. Due to the sudden death of the deceased the family of the petitioner put to severe mental torture, bereavement and agony. The accident caused solely due to the rash and negligent driving by the driver of the respondent.

3. The respondent contested the petition by filing written statement. The material averments of it are as follows:-

The petition averments are denied in toto. The respondent denies the rash and negligence of the driver of the respondent. The place of the accident is a busy traffic area and the driver of the respondent is going with a minimum speed, the deceased who is going on his cycle suddenly crossed the road without observing either side of the road in a most carelessness manner, hit the bus and fell down and died. The driver of respondent made his best efforts to avoid the accident, but in vain. The petitioner not filed any documentary proof with regard to the income of the deceased in support of her contention, the claim made by the petitioner is 3 excessive and exorbitant. Hence requested to dismiss the petition with costs.

4. The respondent filed additional written statement on adding of the Second respondent. The material averments of it are as follows:-

The present petitioner Julekabee is not the legal heir of the deceased 1st petitioner Shabana and she is not entitled for any claim. The parents and also the brother of the deceased 1st petitioner Shabana were died prior to her death and there are no other legal representatives of the deceased.

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

1)Whether the accident was caused due to the rash and negligent driving of the driver of the respondent's hus bearing A.P.­ 11­Z­4443 or due to the negligent peddling of the cycle by the deceased or both ?

2) Whether the petitioner is entitled for any compensation for the death of Chand Basha. If so, to what amount and from whom ?

3) To what relief?

The following additional issue was framed :-

Whether the second petitioner is the legal heir of the deceased first petitioner to maintain the petition ?

6.On behalf of the petitioner PW1 and Pw2 were examined by marking Exs.A1 to Ex.A6. On behalf of the respondent no evidence is adduced nor marked any documents.

7.ADDITIONAL ISSUE :-The 2nd petitioner herself examined as

Pw1 substantiating the petition averments. The 2nd petitioner contended that her grand son i.e., deceased Shabeer was hale and healthy at the time of accident and he was aged 15 years and working as glass cutting works getting an income of

Rs.2,000/- per month and contributing the same to the family.

Admittedly the 1st petitioner is the sister of the deceased 4

Shabber while the 2nd petitioner is the grand mother of the deceased. The 2nd petitioner in his chief affidavit did not disclose how she is entitled to be added as party to the claim petition in order to maintain the petition. As already stated supra, 1st petitioner who is the sister of the deceasedShabeer filed claim petition, but she died during the pendency of the claim petition, and thereafter the 2nd petitioner has been added as a party to the petition to continue to claim petition mentioned award amount. It has been elicited from

Pw1 during the course of cross-examination by the learned counsel for the respondent that the deceased Shabeer is the daughter's son of the 2nd petitioner. It is admitted by Pw1 that the 1st petitioner is the sister of deceased Shabeer who is grand daughter of the 2nd petitioner. It is admitted by her the total family members of the 1st petitioner Shabana and the deceased sister of two persons and their parents namely

Naseema Bee and Chand Basha. It is admitted by Pw1 that Chand

Basha died prior to the death of his grand son deceased

Shabeer. It is further admitted by Pw1 that the deceased

Shabeer's mother Smt Naseema died prior to filing of the petition, It is admitted by Pw1 that 1st petitioner Shabana has filed petition to claim the compensation after the death of Shabeer as his legal heir. It is also admitted by her that she did not file death certificate of Naseema who died during the pendency of the petition. It is disclosed by her that her deceased son in law Chand Basha has three brothers who are alive. It has not been explained by the 2nd petitioner how she is entitled to claim compensation on the petition filed by her grand daughter as legal heir under Mohemmaden law or under any other law. As per the evidence of Pw1 reveal that admittedly 5 the father of the 1st petitioner who filed the petition has three brothers who are alive and when they are alive it has not been explained by the 2nd petitioner how she is entitled to continue the claim for compensation after the death of the 1st petitioner who was originally filed petition. The petitioner has also not established that she is depending on the deceased

Shabeer or late Shabana. Thus, in the absence of establishing that she is depending on them, I am of the opinion that the petition for claiming compensation by the 2nd petitioner as the legal heir of the deceased 1st petitioner is not maintainable under law. Accordingly I hold additional issue against the 2nd petitioner.

8.ISSUES 1 & 2:­ In view of my observations on the

additional issue, the 2nd petitioner cannot be maintain the

petition, I am of the opinion there is no need to answer on these two issues. Accordingly, I answered the issues 1 and 2 against the petitioner No.2.

9.ISSUE No.3:- In view of the findings given on additional issue, the petition is liable to be dismissed.

10. In the result, the petition is dismissed without costs.

Dictated to Personal Assistant, transcribed by him, corrected

and pronounced by me in the open court, this the 29th day of February, 2012.

Sd/-

IX ADDL. DISTRICT JUDGE (FTC)

CHAIRMAN, MAC TRIBUNAL,

CHITTOOR.

APPENDIX OF EVIDENCE

PETITIONERRESPONDENTS.

P.W.1. Julekabee. -none- P.W.2. S.Sadiq Basha.

EXHIBITS MARKED ON BEHALF OF THE

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PETITIONER:- Ex.A.1. Certified Copy of F.I.R. Ex.A.2. Certified copy of charge sheet. Ex.A.3. Certified copy of Post Mortem certificate. Ex.A.4. Certified copy of Accident Information Report. Ex.A.5. Certified copy of M.V.I. Report. Ex.A.6. Certified copy of Inquest Report.

RESPONDENT:- -NIL- Id/- IX Addl.D.J.(FTC) Cum Chairman,MAC Tribunal Chittoor.

FAIR ORDER IN

M.V.O.P.225 of 2007

Dated: 29.2.2012

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