S.China Babu

OS 43/2012 1 3.11.2015

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE::NELLORE.

Tuesday, this the 3rd day of November, 2015

PRESENT: - SRI S. CHINA BABU,

Principal Junior Civil Judge, NELLORE.

Original Suit No.43/2012

Pala Krishnamma... Plaintiff

Vs.

1. Vasudha Real Estate, rep. by its Proprietor, Y. Bayyapu Reddy, Nellore.

2. P. Anki Reddy... Defendants

This suit coming up for final hearing before me on 29-10-2015 in the presence of Sri B. Sreenivasulu, Advocate for plaintiff and of Sri C. Ramagopal Reddy, advocate for the defendant and having stood over for consideration till this day, this Court delivered the following::

J U D G M E N T

1. The suit is filed seeking specific performance of agreement by the 1st defendant to register the plaint schedule plot No.221 in favour of plaintiff with her registration expenses and consequential relief of permanent injunction.

2. The averments of plaint, in brief, are as follows:-

(i) The 1st defendant launched a venture by introducing to public that he purchased the land, laid out the same and converted into plots and offered the public to join as members in his Vasudha Real

Estates, Dhanalakshmi Nagar, Nellore. As per the terms and conditions of the said venture, every subscriber has to pay a sum of Rs.140/- every month for 66 months and at the end of the tenure, the said Vasudha Real

Estates shall execute registered sale deed in favour of subscriber who paid installments regularly and that if any subscriber won the draw he will be allotted a plot and no monthly installments would be recovered from him and such winner subscriber has to bear the registration expenses.

(ii) Plaintiff joined as a subscriber/member in the said venture in the year 1995 and since then she had been paying monthly installments @ Rs.450/- and the 1st defendant allotted P.B. No.1275 in her favour. The plaintiff paid entire 66 monthly installments upto the year

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2000 and in turn 1st defendant duly issued receipts to that effect. While so, on 12.5.2001 the 1st defendant collected a sum of Rs.6,300/- from plaintiff towards registration expenses by allotting plot No.221 in favour of plaintiff and issued a receipt under their letter pad duly signed by him.

The plaintiff was also offered several prizes, but no prize had been given to her. The 1st defendant collected agreed installments from plaintiff.

Even after completion of 66 monthly installments, 1st defendant did not turn up to execute registered sale deed in favour of plaintiff. As per the acknowledgment dt.12.5.2001 issued to plaintiff, she went to suit schedule property i.e. plot No.221 as given to her by 1st defendant and then the 2nd defendant obstructed her stating that he purchased the said plot from 1st defendant denying right of the plaintiff over the same. Then plaintiff immediately approached the 1st defendant and demanded him to perform his part of contract by executing registered sale deed, but he pleaded his inability stating that 2nd defendant grabbed the property without their knowledge and consent. The plaintiff obtained encumbrance certificate No.18251/2011 wherein no alienation was shown between the defendants 1 and 2 till 29.8.2011. Thus it is clear that the 2nd defendant hatched up a plan by colluding with 1st defendant to grab the schedule property by taking advantage that it is a vacant site and also to deprive right of the plaintiff from getting registration of the said property.

1st defendant also dragged on the matter since the year 2001 say ing that the plot certainly belongs to the plaintiff and it will be registered in her favour as and when their accounts were cleared off but in vain. Hence, the suit.

3. 1 st defendant filed written statement denying

material averments of the plaint. The contentions of written

statement of 1 st defendant, in brief, are as follows:-

The 1st defendant never purchased land in Survey Nos.1899, 1900 and 1901 in Nellore Corporation and never converted said site into house plots and hence inviting plaintiff to join as member of the venture and collecting amounts from her on monthly installments, collecting registration amount and allotting plot No.221 would not arise. In fact, the 1st defendant never seen the plaintiff in his life time and never organized

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any such schemes to sell house plots much less the suit schedule property. The 1st defendant does not aware of one P. Venku Reddy i.e.

defendant No.2 and never issued any receipts or letter heads to plaintiff.

The suit is barred by limitation.

4. The 2 nd defendant filed written statement denying

material allegations of the plaint. The averments of his written

statement, in brief, are as follows:-

Originally the plaint schedule property was purchased by wife of 2nd defendant by name P. Vijayamma under registered sale deed dt.18.5.2003 in document No.5030/2003 of S.R.O., Nellore from one

Gadam Munibabu @ Muni Rajasekhar and others for valuable consideration and since then she had been in possession and enjoyment of said property with absolute rights. The 1st defendant attested the said registered sale deed as a witness. Subsequently said P. Vijayamma gifted the schedule property to her daughter P. Srikala under registered settlement deed dt.29.3.2001 in document No.4403/2010 of S.R.O.,

Nellore out of love and affection and since then said Srikala has been in possession and enjoyment of said vacant site. In fact, the 1st defendant helped the land owners in converting said locality into house plots. He is not the owner of house plots as alleged in the plaint and never purchased any land in said locality. The plaintiff is not known to 1st defendant and does not have any right and title over the suit property and filed this suit with a view to grab the same which belongs to 2nd defendant. Hence the suit may be dismissed.

5. During the trial, the plaintiff herself was examined as PW1 and got marked Exs.A1 to A5 and she also examined PW2. On behalf of defendants, proprietor of Vasudha Real Estate was examined as DW1 and the 2nd defendant was examined as DW2 and through DW2, Exs.B1 to B3 were marked.

6. Heard the learned counsel for plaintiff. The defendant did not turn up to present his arguments and hence the material available on record is considered.

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7. Basing on the pleadings on record, the following issues are settled for trial:-

1) Whether the plaintiff is entitled for specific performance for execution of registered sale deed from 1st defendant for schedule plot No.221, as prayed for?

2) Whether the plaintiff is entitled for permanent injunction against the defendants, as prayed for?

3) To what relief?

ISSUE NO.1:-

8. In order to seek specific performance of the agreement in respect of suit schedule property from 1st defendant, the plaintiff has to prove that the 1st defendant is having title, right and alienable interest over said property and that the execution of agreement by 1st defendant shall also be proved. It is the specific contention of 1st defendant that he has no title, right and alienable interest over suit schedule property and that he has not entered into any agreement with plaintiff.

9. In order to prove that the 1st defendant has right and alienable interest over suit property, the plaintiff contended in plaint that the 1st defendant launched a venture, purchased the land and laid out the same in Survey Nos.1899, 1900 and 1901, launched a scheme and offered the interested public to subscribe in the scheme. Even the plaintiff as PW1 and her husband as PW2 averred the same in their affidavits of chief examination. Except that, they failed to produce any piece of evidence including any document to prove the right and interest of 1st defendant over the suit property.

10. Either the pass book of Vasudha Real Estates i.e. Ex.A1 or the subscription payment receipts Ex.A2 or the acknowledgment dt.12.5.2001/Ex.A3 does not show anything that the 1st defendant has any right and interest over the suit schedule property. The plaintiff also filed Encumbrance Certificate dt.29.8.2011 as Ex.A4. It also does not show anything that the 1st defendant has any right, interest or title over the suit property. The last document filed by plaintiff is the layout plan/Ex.A5. It is unsigned, unstamped and undated. Further, the name of 1st defendant was not referred therein. Thus, Exs.A1 to A5 filed by

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plaintiff totally failed to establish the right, interest and title of 1st defendant over suit property in order to alienate the same to plaintiff.

11. On the other hand, the contention of 2nd defendant is that the suit schedule property was purchased by his wife Vijayamma under Ex.B1 sale deed dt.8.5.2003 and subsequently the property was settled in favour of her daughter by name Srikala on 29.3.2010 under

Ex.B2. The link document of sale deed of Vijayamma i.e. Ex.B1 was also produced as Ex.B3 dt.29.12.1964 which is a registered relinquishment deed executed in favour of vendors of wife of 2nd defendant. The 2nd defendant examined himself as DW2 and testified that his wife purchased suit property under Ex.B1 and subsequently settled in favour of his daughter under Ex.B2. His evidence was not shaken throughout his cross-examination in respect of right, interest and title of his wife and presently of his daughter over the suit property. Thus, the evidence of 2nd defendant as DW2 is corroborated by the documentary evidence Exs.B1 to B3. It shows that by the time of filing of the suit, the daughter of 2nd defendant is having right and title over the suit property. On one hand the plaintiff failed to prove the right and interest of 1st defendant and on the other hand the 2nd defendant established that his daughter is having right and interest over the said property. Therefore, the plaintiff failed to establish that the person from whom specific performance by way of registration of sale deed is sought for does not have any right and interest over suit property.

12. The plaintiff has to further establish that the 1st defendant himself made an agreement with her to execute registered sale deed in her favour with respect to suit schedule site in case of her regular payment of 66 installments @ Rs.440/- per installment in the course of the scheme launched by him. In order to prove the same, the evidence produced by plaintiff is Exs.A1 to A5. Ex.A1 is the pass book in the name of Vasudha Real Estates issued to the plaintiff. The 1st defendant admitted in his cross-examination that he is running Vasudha

Real Estates and in that course, he launches several schemes and used to collect 66 installments from subscribers @ Rs.420/- per installment and they also used to issue pass books. DW1 deposed in respect of a scheme

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launched by him but not about the scheme as contended by the plaintiff.

Further, DW1 not admitted that Ex.A1 pass book is related to his Real

Estates and that it was signed by his agent. Moreover, it is the version of

DW1 that he has no agents to sign such books or receipts in favour of his real estates. Furthermore, Ex.A1 pass book does not contain the name or signature of 1st defendant. It is also to note here that it is not specifically mentioned in the terms and conditions laid down in the pass book that after payment of 66 installments by subscriber the real estate or 1st defendant has to execute registered sale deed for suit schedule property in favour of plaintiff.

13. The plaintiff also produced subscription payment receipts. They are in the name of Vasudha Real Estates containing the alleged signature of 1st defendant in a stamp. They are 62 in number.

Except the stamp showing the name of 1st defendant, there is nothing to show that said receipts were issued by 1st defendant or by another person on his behalf. Said receipts also do not show the terms and conditions much less the condition to execute registered sale deed by 1st defendant in favour of plaintiff. Thus, Exs.A1 and A2 failed to prove the existence of the alleged scheme and that the 1st defendant has launched such scheme and himself received the subscription amounts.

14. The acknowledgment dt.12.5.2001 was also produced by plaintiff as Ex.A3 wherein it was mentioned that the 1st defendant received the registration amount of Rs.6,300/- from plaintiff. The 1st defendant totally denied his signature in Ex.A3. Then it is the burden of plaintiff to establish the contents and signature of said document.

Moreover, it is nothing in Ex.A3 about launching of a scheme and alleged agreement of 1st defendant to execute the sale deed after regular payments of 66 installments by subscribers. The remaining Encumbrance

Certificate/Ex.A4 and the lay out plan/Ex.A5 do not show anything about the alleged and involvement of 1st defendant in the said scheme. Thus all the documents produced by plaintiff failed to prove the establishment of the alleged scheme by 1st defendant and agreement with subscribers to allot the residential plot by him.

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15. The aforementioned discussion made it clear that the prerequisite for granting specific performance of the agreement i.e. the title, right and alienable interest of 1st defendant over the suit property and the 1st defendant made agreement were not proved by plaintiff.

16. In order to grant relief of specific performance of the agreement, another essential ingredients to be proved is that the plaintiff has averred and proved that she has performed or always ready and willing to perform the essential terms of the agreement. At this juncture, it is pertinent to refer the legal provision as laid down in Section 16 (c) and the appended Explanation II of the Specific Relief Act, 1963.

Section 16 (c) and Explanation II of the Specific Relief Act, 1963, reads that -

Section 16 - Personal bars to relief:- Specific performance of a contract cannot be enforced in favour of a person -

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation:- (ii) For the purposes of clause (c) :-

The plaintiff must ever performance of, or readiness and willingness to perform, the contract according to its true construction.

17. On going through the plaint and chief affidavit of either

PW1 or PW2, it is apparent that it is no where averred specifically that the plaintiff has performed or always ready to perform her portion of contract.

Even as per the alleged agreement, as contended by plaintiff, only after regular payment of 66 installments @ Rs.450/- per installment by the subscribers including the plaintiff, the 1st defendant has to allot a house plot and execute a registered sale deed. Though the plaintiff and her husband testified that they paid total 66 installments to the real estate of the 1st defendant, as per the record supplied by the plaintiff Ex.A1 the

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pass book contains 62 entries only. As per Exs.A1 or A2, the last installment paid by the plaintiff is the 62nd installment dt.11.12.2000.

Except the self-serving testimony of plaintiff and her husband, there is nothing to show that the plaintiff has paid the total 66 installments. On the other hand, Exs.A1 and A2 shows that she has paid upto 62 installments alone. Therefore, the plaintiff has not complied the conditions of alleged agreement completely. In the circumstances, the plaintiff has to aver in the plaint that she is always ready and willing to pay the remaining installments, but it was not averred. If her contention that she has paid all installments is true, she has to prove the same by cogent and convincing evidence. The plaintiff has not averred that she is ready and willing to perform her portion of agreement or already performed the same.

18. At this juncture, it is pertinent to go through the observations of the Hon’ble Supreme Court made in Jugraj Singh and another Vs. Labh Singh and others; AIR 1995 SC 945 wherein it was held that “the plaintiff has to prove his continuous readiness and willingness at all stages from the date of agreement till the date of filing of the suit and the substance of the matter, surrounding circumstances and conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff’s part of the contract”.

19. In another decision in M. Rangaiah Vs. T.V.

Satyanarayana Rao & Another; 2009 (5) ALD 663 it was held in para 10 that - “The requirements in suits for specific performance are, one is the plaintiff must have demanded or requested the defendant to perform the contract and another is the statement of plaintiff that he is ready and willing to perform his part of contract”.

20. In view of the aforementioned discussion and on considering the rulings of the Hon’ble courts, it is pertinent to note that the plaintiff failed to comply the essentials of law laid down in Section 16

(c) and explanation II thereto in order to grant the specific performance of alleged agreement by plaintiff.

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21. Another important aspect to be complied by plaintiff is that she has to demand or request the 1st defendant to execute the registered sale deed in her favour before she filed the suit. In the case on record, the plaintiff has not issued any such notice. The husband of plaintiff deposed as PW2 in his cross-examination that they have not issued legal notice to 1st defendant demanding him for execution of the sale deed. It is to note here that the Hon’ble High Court of Andhra

Pradesh held in M. Rangaiah Vs. T.V. Satyanarayana Rao and another, mentioned supra, that one of the requirements in a suit for specific performance is the plaintiff must have demanded or requested the defendant to perform the contract. The material on record apparently shown that the plaintiff has failed to comply the same. In the suit for specific performance issue of legal notice by plaintiff to defendant from whom specific performance is sought for is essential and unless it is complied with, it cannot be held that the plaintiff complied the mandatory requirements of the suit.

Limitation aspect:-

22.The defendants further contended that the suit is barred by limitation as the same was not filed within 3 years of alleged cause of action. Hence it is pertinent to go through Article 54 of the schedule appended to Limitation Act, 1963. It reads that-

Description of Period of Time from which period begins

suit limitation to run

For specific Three yearsThe date fixed for the performance, performance of a or, if no such date is fixed, when contract the plaintiff has notice that performance is refused.”

23. The cause of action for filing suit arise either from the date fixed for the purpose or if there is no such date fixed, when the plaintiff has noticed that the performance is refused. Even it is not the case of plaintiff that any date was fixed for the performance of alleged agreement. Further, either of Exs.A1 to A3 does not show any date for performance of the agreement by 1st defendant. As per the version of plaintiff, the 1st defendant agreed to execute the registered sale deed soon after regular payment of 66 installments by the plaintiff. The

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plaintiff contended that she completed payment of installments by 12.5.2001 and on that date 1stdefendant issued the acknowledgment/Ex.A3 and allotted the plot No.221. However, the said date was not fixed as date for performance of the alleged agreement.

Therefore, the 1st limb of the article 54 would not attract.

24. The plaintiff and her husband testified as PWs.1 and 2 that after the 1stdefendant issued the acknowledgment dt.12.5.2001/Ex.A3 PW1 went to the schedule property and the 1st defendant obstructed her from entering into the same by claiming his right over the property and on that she approached the 1st defendant and demanded him for execution of registered sale deed for schedule mentioned property in her favour. They further testified that since the demand of plaintiff, the 1st defendant dragged on the matter saying that the plot certainly belongs to the plaintiff and as and when their accounts were cleared off, the register sale deed would be executed in her favour, but in vain. This version of plaintiff does not show anything as to the date of her 1st demand for performance of the agreement. Further, this does not reveal as to when the 1st defendant finally refused to perform the agreement and as to when it was come to her notice. If the plaintiff has issued a notice demanding for execution of the sale deed and the same was refused by 1st defendant, since then the limitation may be started.

But in the case on record, there is no material as to when plaintiff has demanded for performance and as to when 1st defendant refused for performing the same. In these circumstances, reckoning starting period of limitation is not possible. Unless and until the period of limitation starts there would not be any cause of action for filing the suit for specific performance of the alleged agreement. In these circumstances, the court is of the view that the plaintiff failed to prove that the suit is within the period of limitation. Though the defendants themselves contended about the bar of limitation, it is the duty of plaintiff to show the arising of cause of action and the availability of limitation period, but she failed to do so.

25. The 2nd defendant specifically contended in his written statement and deposed in his chief affidavit that even prior to filing of the suit by plaintiff, the schedule property was purchased by his wife Pallala

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Vijayamma from the sons of Gadam Rosaiah i.e. Gadam Munibabu @

Muni Rajasekhar and others under Ex.B1 and subsequently it was settled in favour of his daughter under Ex.B2. As the schedule property is said to be in the name of daughter of 2nd defendant even prior to filing of the suit, the option left to the plaintiff is to implead said daughter of 2nd defendant as party to suit, but she failed to do so. When the 1st defendant clearly contending that the schedule property is not belongs to him and that the 2nd defendant contended that said property belongs to his daughter. It is necessary to implead said daughter of 2nd defendant as her rights would be affected in case of directing registration of the suit property in favour of plaintiff. Hence non-impleadings the daughter of 2nd defendant is an adverse circumstance against the case of plaintiff.

26. In the light of above discussion, the court observed that the plaintiff failed to prove the essential ingredients for seeking specific performance of alleged agreement by 1st defendant.

27. If the plaintiff has strong grievance that the 1st defendant had cheated her by collecting the installment amounts by offering to allot a house site in her favour, she can initiate criminal action against the 1st defendant or she can seek for return of the amount allegedly paid by her to the real estate of the 1st defendant. However, basing on the material placed on record, she is not successful to claim the relief of specific performance of alleged agreement from the 1st defendant. Accordingly, this issue is answered against the plaintiff and in favour of defendants.

ISSUE NO.2:-

Relief of permanent injunction:-

28. In order to grant the equitable relief of perpetual injunction, the plaintiff has to establish that she is in the possession and enjoyment of suit schedule property as on the date of filing of the suit.

On going through the documents filed by the plaintiff any of them does not show that the suit schedule property i.e. plot No.221 was allotted to plaintiff. Further, the evidence on record also shows that the 1st defendant from whom the plaintiff allegedly obtained the right and

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interest over the suit property is found to be not having any right and alienable interest over the same.

29. On the other hand, the evidence produced by 2nd defendant as DW2 i.e. Exs.B1 to B3 goes to show that his daughter is having right and interest over the suit property as on the date of filing of the suit. Even the 1st defendant himself contending that he did not have any title, right and interest over said property. As the owner of property himself did not have right over the same, he cannot pass better title to plaintiff.

30. Testimony of PW1 is that when she went to the suit schedule property after receiving Ex.A3 on 12.5.2011 the 1st defendant obstructed her stating that he purchased the said property and then she went to the 1st defendant and question him about the same. This version of plaintiff clearly shows that she was never in possession and enjoyment of the suit schedule property. On the other hand, the Exs.B1 to B3 goes to show that the daughter of 1st defendant is having right and interest over said property as on the date of filing of the suit. As the schedule property is a vacant site, on drawing the preposition of law that the “possession follows title” it would be held that the said daughter of 1st defendant by name Sri Kala is having possession and enjoyment over the suit property. In the evidence on record it does not show anything that the plaintiff is in possession and enjoyment of suit property in any manner.

31. The Hon’ble High Court of Andhra Pradesh in Madduru

Papai (died) by L.Rs. Vs. Ch. Ramakrishna and others reported in 2012 (2) ALD 768 in Para 10:- “ In a suit for injunction, the burden squarely rests upon the plaintiff to prove his possession over the suit schedule property. Apart from proving possession, he must also convince the court, as to the existence of semblance of right in him, vis-a-vis the property. The reason is that even if a person is in possession of the property, without there being any right in him, and as a trespasser, he cannot be granted the relief of injunction against the true owner. The possession over the vacant land is

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mostly established through the extracts in revenue records.”

32. In the absence of proof of possession and enjoyment of the plaintiff, she is not entitled for the equitable relief of perpetual injunction against the defendant. Accordingly, the point is answered against the plaintiff.

ISSUE NO.3:-

33. In view of the issue Nos.1 and 2 are answered against the plaintiff, the suit shall be dismissed.

34. In the result, the suit is dismissed. In the circumstances of the case, there is no order as to costs.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open court on this the 3rd day of November, 2015.

PRL. JUNIOR CIVIL JUDGE,

NELLORE.

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintiff:For Defendant:

PW1: Pala Krishnamma. DW1: Y. Bayyapu Reddy. PW2: Pala Ramanaiah. DW2: Pallala Chinna Anki Reddy @ Anki Reddy.

Documents marked

For Plaintiff:

EX.A1: The pass book in respect of P.B.No.1275 issued by defendant No.1 in favour of plaintiff. EX.A2: The payment receipts 66 in number issued by defendant No.1 in favour of plaintiff. EX.A3: The receipt dt.12.5.2001 issued by defendant in favour of plaintiff in respect of payment of Rs.6300/- towards registration expenses. EX.A4: The certificate of encumbrance on property dt.29.8.2011 issued by the S.R.O., Nellore. Ex.A5:The Layout plan showing the allotment of Plot No.221.

F or Defendant :-

EX.B1: The certified copy of the registered sale deed dt.8.5.2003 executed by the sons of Gadam Rosaiah (4 persons) in favour of

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one Pallala Vijayamma. EX.B2: The certified copy of registered settlement deed dt.29.3.2010 executed by one Pallala Vijayamma in favour of Pallala Sreekala D/o Pallala Chinna Ankireddy. EX.B3: The Certified copy of registered relinquishment deed dt.29.12.1964 executed by Gadam Rosaiah in favour of the sons of Gadam Rosaiah (4 sons) i.e. to their mother Rohinamma as guardian.

Prl. J.C.J., Nellore.

RCC 28/2012 1 7.11.2015

IN THE COURT OF THE RENT CONTROLLER -CUM-PRINCIPAL JUNIOR CIVIL

JUDGE: NELLORE

Saturday, this the 7th day of November, 2015

Present: Sri S. China Babu,

Rent Controller -cum-

Principal Junior Civil Judge, Nellore.

R.C.C. No.28/2012

1. Y. Sreedevi

2. Y. Vijayamma ...Petitioners

Vs.

Chitluru Venkateswarlu ...Respondent

This petition coming up for final hearing before me on 26-10-2015 in the presence of Sri Y. Chandrasekhar Reddy, Advocate for Petitioners and of Sri P. Sreenivasa Rao, advocate for the respondent, having stood over for consideration till this day, this Court delivered the following::

ORDER

1. This petition is filed by the petitioner/tenant under Section 10 (2) (i), (iv) and (vi) of A.P. Buildings (Lease, Rent and Eviction) Control Act seeking eviction of respondent from petition schedule portion of a house.

2. The averments of the petition, in brief, are as follows:-

(i) The petitioners are absolute owners of schedule house by virtue of registered sale deed dt.5.3.2012 vide Document No.905/2012. They filed

R.C.C.No.22/11 against this respondent on the file of Rent Controller, Nellore to vacate schedule property and to deliver vacant possession of the same to petitioners, but the same was dismissed by observing that the petitioner do not get any rights by registered general power of attorney-cum-sale agreement dt.7.11.2008 and that these petitioners are owners of schedule property from 5.3.2012 i.e. subsequent to filing of said RCC 22/2011. Further, the Rent Controller while dismissing said RCC gave finding that this respondent is not paying the rents to petitioners. Hence without prejudice to the rights of the petitioners, they are claiming rents from 5.3.2012. However, these petitioners are preferring appeal against the orders dt.20.9.2012 passed in RCC 22/2011. The respondent approached owner of petitioners by name

Chitirala Jayaprakash about 20 years ago and requested him for lease of schedule house. Said Jaya Prakash enhanced the monthly rent from time to

RCC 28/2012 2 7.11.2015 time and finally rent of Rs.1,000/- was paying to the said previous owner Jaya

Prakash. Thereafter, respondent failed to pay monthly rent to the petitioners from 5.3.2012 till date. Even after filing the RCC 22/2011, the respondent failed to remit rents despite the demands and hence he is a willful defaulter.

(ii) The schedule mentioned property is in dilapidated stage and not fit for residential purpose and on that ground the Commissioner, Nellore

Municipal Corporation issued an order to the petitioners and respondents herein for demolishing of the house as it is existence in dilapidated condition would affect public at large as it is abutting to the main road. Hence it is causin public nuisance to. The respondent is not depositing the rents before the Rent Controller and orally denying the right of petitioners to collect rents.

The petitioners approached civil and criminal courts to demolish said buildings and proceedings are pending. The Hon’ble V Addl. District Judge, Nellore also directed the Municipal Corporation, Nellore to take necessary steps against the respondent and against the another tenant of the petitioners, under Criminal

Appeal No.196/2010 which is disposed of on 10.6.2011. Also there is a direction to the Municipal Corporation, Nellore for compliance of Section 459 of

Hyderabad Municipal Corporation Act before its demolish. The condition of schedule property is in such a manner to cause endanger to public and to lives of respondents. Hence the petition.

3. The respondent filed counter denying the material

allegations of the petition. The averments of counter, in brief, are as

follows:-

(i) The petitioners are not the absolute owners of petition schedule property by virtue of registered sale deed dt.5.3.2012. The sale deed disclosed that the executants and claimants are one and the same and hence the said deed is not a sale deed as defined in Section 54 of Transfer of

Property Act. In the present sale deed, the ownership exchange of price does not find place and hence it is not sale deed and cannot be looked into. The schedule of property is not correct. As the Rent Controller gave finding in

O.S.No.22/2011, the petitioners are not entitled to file the present petition. In

fact, the petitioners never purchased petition schedule property under registered sale deed from their vendor and that it is only an agreement of sale-cum-G.P.A. Said document does not create any title to the petitioners or

RCC 28/2012 3 7.11.2015 anybody to claim a right against the property at any point of time. There is no jural relationship of landlord and tenant in between petitioners and respondents. The petitioners never in possession and enjoyment of petition schedule property. Said property was also demolished. The respondent has been residing in said property for decades as tenant to one Ch. Jaya Prakash who is the absolute owner of the same. Respondent is residing in 4.8 ankanams Madras roofed house and ACC sheeted house in an extent of 5.27 ankanams only and he is residing in one portion. Another tenant by name Ch.

Venkatesh is residing in another portion of said house.

(ii) The respondent and another tenant have been paying rents regularly to their landlord Jaya Prakash @ Rs.650/- as the municipality demolished the front portion of the house i.e. tiled house. The respondent has been paying electricity consumption charges. The respondent and another tenant are lawful tenants to said Jaya Prakash and not to the petitioners and they are entitled to continue as tenants until they were evicted by the said

Jaya Prakash under due process of law. Still the respondent and the other tenant Ch. Venkateswarlu are in possession of the house and running coconut shop infront of schedule house. In fact, the landlord Ch. Jaya Prakash filed a suit for cancellation of GPA-cum-sale agreement said to be executed in favour of the petitioners and the same is pending. Petitioners have no right and title to execute right and title in their favour which is law against justice. Said Jaya

Prakash had given the GPA to act on his behalf only and hence the petitioners should not use the said GPA for their own benefit and purpose. The petitioners act only in fiduciary capacity and unless the GPA is regular by obtaining deed of conveyance from said Jaya Prakash, they should not get any title over the property. There is a title dispute between the petitioners and Ch. Jaya Prakash in respect of schedule property and it should be solved and decide 1st and hence the petitioners are not entitled to claim any rents from respondent.

Hence the petition may be dismissed.

4. During the enquiry, the 1st petitioner herself was examined as

PW1 and got marked Exs.P1 to P5. The respondent was examined as RW1 and got marked Ex.R1.

5. Heard both sides. Both parties submitted their written arguments also.

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6. Now the point for consideration is:-

Whether the petitioner is entitled for the relief of eviction of respondent from petition schedule portion of house?

POINT:-

7. The petitioners are seeking the relief of eviction of respondent from schedule property on the grounds mainly that the respondent denied the title of the petitioner and that the respondent willfully defaulted in payment of rents and that the schedule property is in dilapidated condition and that the

Municipal authorities have already ordered for its demolishing and the civil court also ordered for its demolishen.

8. Originally the petitioners claiming their right and title over suit property basing on the registered General Power of Attorney-cum-Sale agreement dt.7.11.2008 under which the petitioners claiming right, title and ownership from its original owner Cheetherala Jayaprakash. Subsequently, the petitioners got regularized the said G.P.A.-cum-Sale agreement into registered sale deed in the capacity of G.P.A. holders in favour of themselves on behalf of the original owner said Jayaprakash.

9. It is undisputed fact that the petitioners are originally the G.P.A.

holders of the original owner Ch. Jayaprakash in respect of petition schedule property and its adjacent portion. It is also undisputed that the suit schedule property was originally leased out to respondent by Ch. Jayaprakash. In the present petition, the petitioners contending that as they have purchased the schedule property under said G.P.A.-cum-Sale agreement dt.7.11.2008 and subsequently it was regularized into registered sale deed dt.5.3.2012, the certified copy of the same is Ex.P1. It is undisputed fact that the said Ch.

Jayaprakash denying the execution of sale agreement in favour of petitioners.

He also filed a suit in O.S.No.57/2013 on the file of Hon'ble IV Addl. District

Judge, Nellore for cancellation of the said G.P.A. It is also undisputed that by

the time the petitioners filed the present petition on 10.10.2012, the said suit filed by the original owner Jayaprakash in O.S.No.57/2013 was still pending against the petitioners herein. Therefore, there was a title dispute between the petitioners herein and original owner of schedule property in respect of the

RCC 28/2012 5 7.11.2015 said property. In these circumstances, the court is of the view that there is no fault on part of the respondent to deny the title of the petitioners over schedule property and in view of the pending suit for cancellation of the

G.P.A., it cannot be held that there is no bonafide ground for denial of title of petitioners over schedule property. On this aspect, the contention of learned counsel for petitioners is not tenable.

10. Another strong ground for seeking eviction is willful default in payment of rents. The case of petitioner and his evidence is that since the

G.P.A.-cum-Sale agreement dt.7.11.2008 in favour of petitioners was regularized under registered Sale deed/Ex.P1, dt.5.3.2012, the respondent ought to have paid the rents to petitioners, but he willfully not paid the same though he is well aware of execution of registered Sale deed in favour of the petitioners. On this aspect, the respondent contended that the execution of sale deed/Ex.P1 is improper as the petitioners being the G.P.A. holders of the original owner Jayaprakash are not entitled to execute said registered Sale deed for their own benefit. On this ground, the respondent intentionally not paid rents to petitioners and on the other hand, he contended that he is regularly paying rents to the original owner Jayaprakash. The respondent referred Section 54 of the Transfer of Property Act which defines the term “Sale” to say that such execution of sale deed by G.P.A. holders for their own benefit is not valid.

11. For convenience, the definition of sale as laid down under

Section 54 of the T.P. Act reads that:-

Section 54 of T.P. Act:-

The “sale” is a transfer of ownership in exchange for a price paid or promised or part paid or part promised.

12. It is undisputed fact that as per the averments of the G.P.A.- cum-Sale agreement dt.7.11.2008, the petitioners have already paid sale consideration to the owner of property Ch. Jayaprakash and also obtained delivery of the said property. However, said transaction took place under

G.P.A.-cum-Sale agreement but not under regular Sale deed.

RCC 28/2012 6 7.11.2015

13. As per the ruling of Hon'ble Supreme Court in Suraj Lamp &

Industries Pvt. Ltd. Vs. State of Haryana & Anr.; AIR 2012 SC 206 as firstly relied upon by the respondent, the transaction of property under G.P.A.- cum-Sale agreement is invalid. However, in the same judgment the Hon'ble

Supreme Court clearly observed that such documents may be valid for genuine transactions such as among the family members, relatives. For other transactions the apex court held that such G.P.A.-cum-Sale agreement can be regularized for their validity.

14. In the case on record, the G.P.A.-cum-Sale agreement was regularized by executing registered sale deed/Ex.P1 by the petitioners in the capacity of G.P.A. holders of original owner Jayaprakash in their favour. As per

Section 54 of the T.P. Act, it is clearly shown that the sale consideration may be past or future or partly past and partly future, as per the G.P.A.-cum-Sale agreement, the sale consideration was already paid to said Jayaprakash by the petitoners and delivery was also given to the petitioners. Therefore, it can be held that the Ex.P1 sale deed was executed for regularization of the transaction already took place under the G.P.A.-cum-Sale agreement. In these circumstances, it cannot be held that the G.P.A. holders i.e. the petitioners cannot execute the registered sale deed in the capacity of G.P.A. holders in their own favour and for their own benefit. Therefore, the case in Suraj Lamp and Industries Pvt. Ltd. mentioned supra is not against the case of the petitioners.

15. In the light of the above discussion, the court is of the considered view that the petitioners properly regularized the G.P.A.-cum-Sale agreement into the sale deed in respect of the petition schedule property.

Admittedly, this registered sale deed dt.5.3.2012 was marked in the previous eviction petition R.C.C.No.22/11 and the same is in the knowledge of respondent herein. Further, the respondent as RW1 in the present petition also admitted that the said registered Sale deed/Ex.P1 was filed in the said previous R.C.C. Moreover, the said Sale deed is registered document and that registration is constructive notice to public more particularly to the respondent as he is tenant of the schedule property and well known about property dispute between petitioners and original owner Jayaprakash.

RCC 28/2012 7 7.11.2015

16. As the respondents well known about registration of the sale deed in favour of petitioners in respect of schedule property, the option left to him is either to pay the rents to petitioners or to deposit the monthly rents

before the Rent Controller as per the provisions of Section 9 of the Rent

Controller Act, 1960. But the respondent not chosen to deposit the rents

before the court inspite of well aware of the title dispute in respect of his

tenament. On this aspect, the learned counsel for respondent placed reliance in Radhakrishna Yadav (died per L.Rs.) and others Vs. G.

Kalavati Bai; 2002 (3) ALD 150. In the said decision, both the rival claimants issued notices to tenant claiming title over the schedule building and that the tenant filed application under Section 9 of the Rent Control Act and it is allowed by the Rent Controller and permitted him to deposit rents

before the court. Under the circumstances, the Hon'ble High Court of Andhra

Pradesh held that so long as the competent civil court has not upheld the title of the petitioner, the petition for eviction is not maintainable.

17. In the case on record, the respondent not filed any application under Section 9 of the Rent Control Act for depositing rents until the title dispute is resolved. On this aspect, the respondent contended that he is regularly paying rents to the original owner Ch. Jayaprakash and hence there is no necessity to file such petition under Section 9 of the Rent Control Act.

The petitioner contended that the respondent not paying rents to said Ch.

Jayaprakash and that the rent receipts (6 in number)/Ex.R1 are forged.

18. It is a contention of respondent that previously he used to pay rents @ Rs.1,500/- p.m. to his landlord Ch. Jayaprakash and subsequently after the front tiled portion of the schedule property was demolished by Municipal authorities, he is paying Rs.650/- p.m. to said Jayaprakash. This contention shows that the rate of rent for schedule property as on the date of filing of counter i.e. 13.3.2013 is Rs.650/- per month. On the other hand, the rent receipts/Ex.R1 paid from May, 2013 to July, 2014 are indicating that the monthly rent paid is @ Rs.1,500/-. When the rent paying by respondent is @

Rs.650/- p.m., it is unknown as to how he obtained rent receipts @ Rs.1,500/- p.m. It raises a strong doubt against the genuineness of Ex.R1 in favour of case of petitioners. In these circumstances, examination of the original landlord of respondent Ch. Jayaprakash is very much required to prove that the respondent is regularly paying rents to him and that landlord issued Ex.R1.

RCC 28/2012 8 7.11.2015

However, he was not examined for the reasons best known to respondent. It clearly shows that the contention of respondent that he is regularly paying rents to Ch. Jayaprakash is not believable. Therefore, the respondent is in the possession of schedule property as tenant without payment of rents and without filing application under Section 9 of the Rent Control Act seeking permission to deposit the rents before Rent Controller. It certainly amounts to willful default in payment of rents by respondent and it is a sufficient ground for directing him to vacate the schedule property.

19. It is undisputed fact that the suit in O.S.No.403/2010 filed by the petitioners herein against the Municipal Corporation, Nellore, against the respondent herein and tenant of adjacent portion was decreed directing the

Municipal authorities to demolish the dilapidated schedule property. Said certified copy of judgment is marked as Ex.P2. The certified copy of counter in

I.A.No.596/2010 of said suit was also produced as Ex.P3. The Advocate

Commissioner report, certified copy of the same was filed as Ex.P4, also shown that the schedule property was in dilapidated condition. It is also undisputed about said observation of the Advocate Commissioner in the Ex.P4 report.

Respondent himself admitted that a front portion of schedule property was already demolished by the Municipal authorities and hence he is not residing in said property, but residing at Lakshmi Sai Nagar. Though RW1 deposed that during day time he is coming to schedule house and staying there, it is most unbelievable thing. Further in the judgment and decree dt.16.11.2012 of

O.S.No.403/2010 on the file of Prl. Junior Civil Judge's Court, Nellore the court

ordered to demolish the same and to prevent the public nuisance. Therefore, on this ground also the respondent is not entitled to stay in the schedule property and he shall be evicted.

20. During the pendency of the proceedings of this petition, the learned counsel for the petitioners filed certified copy of judgment and decree in O.S.No.7/2013 on the file of Iv Addl. District Judge, Nellore dt.29.6.2015 which shows that the said suit filed by the original owner Cheetherala

Jayaprakash for cancellation of the G.P.A.-cum-Sale agreement was dismissed for default. There is no material on record to show that the said judgment was set aside. Therefore, the litigation initiated by the original landlord of respondent i.e.Ch. Jayaprakash against the petitioners herein was ended by the dismissal of the suit in O.S.No.57/2-13. Further there is no evidence on

RCC 28/2012 9 7.11.2015 record to show that whether the said Jayaprakash or respondent filed a suit for cancellation of the registered Sale deed dt.5.3.2012/Ex.P1 in respect of the suit schedule property. Said registered sale deed clearly shows that the petitioners are the title holders of schedule property.

21. The learned counsel for the respondent filed a decision of

Hon'ble High Court of Andhra Pradesh in Kavitha Gurrala V. Bharat

Petroleum Corporation Ltd. and others; 2011 (1) ALD 262 wherein at

Para 24, the court observed that the G.P.A. authorizing the donee to manage and to sale to others on behalf of executant is not valid even though the possession was transferred to the said donee. In the case on record, the petitioners have already regularized the GPA-cum-Sale agreement executed in their favour by the original owner Jayaprakash. Except making the allegation of forgery of the said GPA, it was not proved in the civil court. Further, said

GPA was regularized by registered Sale deed/Ex.P1 in favour of the petitioners.

In these circumstances, keeping due respects to the possession of the Hon'ble

High Court of Andhra Pradesh, it is observed that said decision is not applicable to the case on record.

22. In the light of above discussed evidence, facts and circumstances of the case, the court is of the considered view that the respondent willfully defaulted in payment of rents since the date of execution of registered sale deed/Ex.P1 dt.5.3.2012. Further, the schedule property was also proved as in dilapidated condition and required for its demolishen. On these two grounds, the respondent shall be evicted from the schedule property. Accordingly, the point is answered in favour of the petitioners against the respondents.

23. In the result, the petition is allowed with costs directing the respondent to vacate and deliver vacant possession of schedule property to petitioners within two months of passing of this order, failing which, the petitioners can get it be done under due process of law.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open court on this the 7th day of November, 2015.

RENT CONTROLLER-CUM-

RCC 28/2012 10 7.11.2015

Principal Junior Civil Judge,

Nellore.

APPENDIX OF EVIDENCE

Witnesses examined

For Petitioner: For Respondent:

PW1: Y. Sreedevi. RW1: Chitluru Venkateswarlu

Documents marked

For Petitioner:

EX.P1:The certified copy of Regd. Sale deed dt.5.3.2012 executed by one Cheekirala Jayaprakash and GPA Holders petitioner Nos.1 and 2 in favour of the petitioners.

Ex.P2:The certified copy of judgment dt.16.11.2012 in O.S.No.403/2010 on the file of P.D.M. Court, Nellore.

Ex.P3:The certified copy of counter in I.A.No.596/2010 of

O.S.No.403/2010 on the file of P.D.M. Court, Nellore.

EX.P4:The certified copy of report of Advocate Commissioner in Crl.M.P. No.17/2011 of Hon'ble V ADJ Court, Nellore.

EX.P5:The certified copy Order dt.20.9.2012 in R.C.C.No.22/11 on the file of Rent Controller, Nellore.

For Respondent:

EX.R1:The rent receipts 6 in number.

R.C.-cum- Prl. J.C.J., Nellore.

RCC 28/2012 11 7.11.2015

Id/- S.C.B.,

//True Copy//

RENT CONTROLLER-CUM-

Principal Junior Civil Judge,

Nellore

RCC 29/2012 1 7.11.2015

IN THE COURT OF THE RENT CONTROLLER -CUM-PRINCIPAL JUNIOR CIVIL

JUDGE: NELLORE

Saturday, this the 7th day of November, 2015

Present: Sri S. China Babu,

Rent Controller -cum-

Principal Junior Civil Judge, Nellore.

R.C.C. No.29/2012

1. Y. Sreedevi

2. Y. Vijayamma...Petitioners

Vs.

Muvvala Suresh ...Respondent

This petition coming up for final hearing before me on 26-10-2015 in the presence of Sri Y. Chandrasekhar Reddy, Advocate for Petitioners and of Sri P. Sreenivasa Rao, advocate for the respondent, having stood over for consideration till this day, this Court delivered the following::

ORDER

1. This petition is filed by the petitioner/tenant under Section 10 (2) (i), (iv) and (vi) of A.P. Buildings (Lease, Rent and Eviction) Control Act seeking eviction of respondent from petition schedule portion of a house.

2. The averments of the petition, in brief, are as follows:-

(i) The petitioners are absolute owners of schedule house by virtue of registered sale deed dt.5.3.2012 vide Document No.905/2012. They filed

R.C.C.No.23/11 against this respondent on the file of Rent Controller, Nellore to vacate schedule property and to deliver vacant possession of the same to petitioners, but the same was dismissed by observing that the petitioner do not get any rights by registered general power of attorney-cum-sale agreement dt.7.11.2008 and that these petitioners are owners of schedule property from 5.3.2012 i.e. subsequent to filing of said RCC 23/2011. Further, the Rent Controller while dismissing said RCC gave finding that this respondent is not paying the rents to petitioners. Hence without prejudice to the rights of the petitioners, they are claiming rents from 5.3.2012. However, these petitioners are preferring appeal against the orders dt.20.9.2012 passed in RCC 23/2011. The respondent approached owner of petitioners by name

Chitirala Jayaprakash about 20 years ago and requested him for lease of schedule house. Said Jaya Prakash enhanced the monthly rent from time to

RCC 29/2012 2 7.11.2015 time and finally rent of Rs.1,000/- was paying to the said previous owner Jaya

Prakash. Thereafter, respondent failed to pay monthly rent to the petitioners from 5.3.2012 till date. Even after filing the RCC 23/2011, the respondent failed to remit rents despite the demands and hence he is a willful defaulter.

(ii) The schedule mentioned property is in dilapidated stage and not fit for residential purpose and on that ground the Commissioner, Nellore

Municipal Corporation issued an order to the petitioners and respondents herein for demolishing of the house as it is existence in dilapidated condition would effect public at large as it is abutting to the main road. Hence it is causin public nuisance to. The respondent is not depositing the rents before the Rent Controller and orally denying the right of petitioners to collect rents.

The petitioners approached civil and criminal courts to demolish said buildings and proceedings are pending. The Hon’ble V Addl. District Judge, Nellore also directed the Municipal Corporation, Nellore to take necessary steps against the respondent and against the another tenant of the petitioners, under Criminal

Appeal No.196/2010 which is disposed of on 10.6.2011. Also there is a direction to the Municipal Corporation, Nellore for compliance of Section 459 of

Hyderabad Municipal Corporation Act before its demolish. The condition of schedule property is in such a manner to cause endanger to public and to lives of respondents. Hence the petition.

3. The respondent filed counter denying the material

allegations of the petition. The averments of counter, in brief, are as

follows:-

(i) The petitioners are not the absolute owners of petition schedule property by virtue of registered sale deed dt.5.3.2012. The sale deed disclosed that the executants and claimants are one and the same and hence the said deed is not a sale deed as defined in Section 54 of Transfer of

Property Act. In the present sale deed, the ownership exchange of price does not find place and hence it is not sale deed and cannot be looked into. The schedule of property is not correct. As the Rent Controller gave finding in

O.S.No.23/2011, the petitioners are not entitled to file the present petition. In

fact, the petitioners never purchased petition schedule property under registered sale deed from their vendor and that it is only an agreement of sale-cum-G.P.A. Said document does not create any title to the petitioners or

RCC 29/2012 3 7.11.2015 anybody to claim a right against the property at any point of time. There is no jural relationship of landlord and tenant in between petitioners and respondents. The petitioners never in possession and enjoyment of petition schedule property. Said property was also demolished. The respondent has been residing in said property for decades as tenant to one Ch. Jaya Prakash who is the absolute owner of the same. Respondent is residing in 4.8 ankanams Madras roofed house and ACC sheeted house in an extent of 5.27 ankanams only and he is residing in one portion. Another tenant by name Ch.

Venkatesh is residing in another portion of said house.

(ii) The respondent and another tenant have been paying rents regularly to their landlord Jaya Prakash @ Rs.1,000/- as the municipality demolished the front portion of the house i.e. tiled house. The respondent has been paying electricity consumption charges. The respondent and another tenant are lawful tenants to said Jaya Prakash and not to the petitioners and they are entitled to continue as tenants until they were evicted by the said

Jaya Prakash under due process of law. Still the respondent and the other tenant Ch. Venkateswarlu are in possession of the house and running coconut shop infront of schedule house. In fact, the landlord Ch. Jaya Prakash filed a suit for cancellation of GPA-cum-sale agreement said to be executed in favour of the petitioners and the same is pending. Petitioners have no right and title to execute right and title in their favour which is law against justice. Said Jaya

Prakash had given the GPA to act on his behalf only and hence the petitioners should not use the said GPA for their own benefit and purpose. The petitioners act only in fiduciary capacity and unless the GPA is regular by obtaining deed of conveyance from said Jaya Prakash, they should not get any title over the property. There is a title dispute between the petitioners and Ch. Jaya Prakash in respect of schedule property and it should be solved and decide 1st and hence the petitioners are not entitled to claim any rents from respondent.

Hence the petition may be dismissed.

4. During the enquiry, the 1st petitioner herself was examined as

PW1 and got marked Exs.P1 to P5. The respondent was examined as RW1 and got marked Ex.R1.

5. Heard both sides. Both parties submitted their written arguments also.

RCC 29/2012 4 7.11.2015

6. Now the point for consideration is:-

Whether the petitioner is entitled for the relief of eviction of respondent from petition schedule portion of house?

7. The petitioners are seeking the relief of eviction of respondent from schedule property on the grounds mainly that the respondent denied the title of the petitioner and that the respondent willfully defaulted in payment of rents and that the schedule property is in dilapidated condition and that the

Municipal authorities have already ordered for its demolishing and the civil court also ordered for its demolishen.

8. Originally the petitioners claiming their right and title over suit property basing on the registered General Power of Attorney-cum-Sale agreement dt.7.11.2008 under which the petitioners claiming right, title and ownership from its original owner Cheetherala Jayaprakash. Subsequently, the petitioners got regularized the said G.P.A.-cum-Sale agreement into registered sale deed in the capacity of G.P.A. holders in favour of themselves on behalf of the original owner said Jayaprakash.

9. It is undisputed fact that the petitioners are originally the G.P.A.

holders of the original owner Ch. Jayaprakash in respect of petition schedule property and its adjacent portion. It is also undisputed that the suit schedule property was originally leased out to respondent by Ch. Jayaprakash. In the present petition, the petitioners contending that as they have purchased the schedule property under said G.P.A.-cum-Sale agreement dt.7.11.2008 and subsequently it was regularized into registered sale deed dt.5.3.2012, the certified copy of the same is Ex.P1. It is undisputed fact that the said Ch.

Jayaprakash denying the execution of sale agreement in favour of petitioners.

He also filed a suit in O.S.No.57/2013 on the file of Hon'ble IV Addl. District

Judge, Nellore for cancellation of the said G.P.A. It is also undisputed that by

the time the petitioners filed the present petition on 10.10.2012, the said suit filed by the original owner Jayaprakash in O.S.No.57/2013 was still pending against the petitioners herein. Therefore, there was a title dispute between the petitioners herein and original owner of schedule property in respect of the said property. In these circumstances, the court is of the view that there is no fault on part of the respondent to deny the title of the petitioners over schedule property and in view of the pending suit for cancellation of the

RCC 29/2012 5 7.11.2015

G.P.A., it cannot be held that there is no bonafide ground for denial of title of petitioners over schedule property. On this aspect, the contention of learned counsel for petitioners is not tenable.

10. Another strong ground for seeking eviction is willful default in payment of rents. The case of petitioner and his evidence is that since the

G.P.A.-cum-Sale agreement dt.7.11.2008 in favour of petitioners was regularized under registered Sale deed/Ex.P1, dt.5.3.2012, the respondent ought to have paid the rents to petitioners, but he willfully not paid the same though he is well aware of execution of registered Sale deed in favour of the petitioners. On this aspect, the respondent contended that the execution of sale deed/Ex.P1 is improper as the petitioners being the G.P.A. holders of the original owner Jayaprakash are not entitled to execute said registered Sale deed for their own benefit. On this ground, the respondent intentionally not paid rents to petitioners and on the other hand, he contended that he is regularly paying rents to the original owner Jayaprakash. The respondent referred Section 54 of the Transfer of Property Act which defines the term “Sale” to say that such execution of sale deed by G.P.A. holders for their own benefit is not valid.

11. For convenience, the definition of sale as laid down under

Section 54 of the T.P. Act reads that:-

Section 54 of T.P. Act:-

The “sale” is a transfer of ownership in exchange for a price paid or promised or part paid or part promised.

12. It is undisputed fact that as per the averments of the G.P.A.- cum-Sale agreement dt.7.11.2008, the petitioners have already paid sale consideration to the owner of property Ch. Jayaprakash and also obtained delivery of the said property. However, said transaction took place under

G.P.A.-cum-Sale agreement but not under regular Sale deed.

13. As per the ruling of Hon'ble Supreme Court in Suraj Lamp &

Industries Pvt. Ltd. Vs. State of Haryana & Anr.; AIR 2012 SC 206 as firstly relied upon by the respondent, the transaction of property under G.P.A.-

RCC 29/2012 6 7.11.2015 cum-Sale agreement is invalid. However, in the same judgment the Hon'ble

Supreme Court clearly observed that such documents may be valid for genuine transactions such as among the family members, relatives. For other transactions the apex court held that such G.P.A.-cum-Sale agreement can be regularized for their validity.

14. In the case on record, the G.P.A.-cum-Sale agreement was regularized by executing registered sale deed/Ex.P1 by the petitioners in the capacity of G.P.A. holders of original owner Jayaprakash in their favour. As per

Section 54 of the T.P. Act, it is clearly shown that the sale consideration may be past or future or partly past and partly future, as per the G.P.A.-cum-Sale agreement, the sale consideration was already paid to said Jayaprakash by the petitoners and delivery was also given to the petitioners. Therefore, it can be held that the Ex.P1 sale deed was executed for regularization of the transaction already took place under the G.P.A.-cum-Sale agreement. In these circumstances, it cannot be held that the G.P.A. holders i.e. the petitioners cannot execute the registered sale deed in the capacity of G.P.A. holders in their own favour and for their own benefit. Therefore, the case in Suraj Lamp and Industries Pvt. Ltd. mentioned supra is not against the case of the petitioners.

15. In the light of the above discussion, the court is of the considered view that the petitioners properly regularized the G.P.A.-cum-Sale agreement into the sale deed in respect of the petition schedule property.

Admittedly, this registered sale deed dt.5.3.2012 was marked in the previous eviction petition R.C.C.No.22/11 and the same is in the knowledge of respondent herein. Further, the respondent as RW1 in the present petition also admitted that the said registered Sale deed/Ex.P1 was filed in the said previous R.C.C. Moreover, the said Sale deed is registered document and that registration is constructive notice to public more particularly to the respondent as he is tenant of the schedule property and well known about property dispute between petitioners and original owner Jayaprakash.

16. As the respondents well known about registration of the sale deed in favour of petitioners in respect of schedule property, the option left to him is either to pay the rents to petitioners or to deposit the monthly rents

before the Rent Controller as per the provisions of Section 9 of the Rent

RCC 29/2012 7 7.11.2015

Controller Act, 1960. But the respondent not chosen to deposit the rents

before the court inspite of well aware of the title dispute in respect of his

tenament. On this aspect, the learned counsel for respondent placed a reliance in Radhakrishna Yadav (died per L.Rs.) and others Vs.

G. Kalavati Bai; 2002 (3) ALD 150. In the said decision, both the rival claimants issued notices to tenant claiming title over the schedule building and that the tenant filed application under Section 9 of the Rent Control Act and it is allowed by the Rent Controller and permitted him to deposit rents

before the court. Under the circumstances, the Hon'ble High Court of Andhra

Pradesh held that so long as the competent civil court has not upheld the title of the petitioner, the petition for eviction is not maintainable.

17. In the case on record, the respondent not filed any application under Section 9 of the Rent Control Act for depositing rents until the title dispute is resolved. On this aspect, the respondent contended that he is regularly paying rents to the original owner Ch. Jayaprakash and hence there is no necessity to file such petition under Section 9 of the Rent Control Act.

The petitioner contended that the respondent not paying rents to said

Ch. Jayaprakash and that the rent receipts (6 in number)/Ex.R1 are forged.

18. It is a contention of respondent that previously he used to pay rents @ Rs.1,500/- p.m. to his landlord Ch. Jayaprakash and subsequently after the front tiled portion of the schedule property was demolished by Municipal authorities, he is paying Rs.1,000/- p.m. to said Jayaprakash. This contention shows that the rate of rent for schedule property as on the date of filing of counter i.e. 13.3.2013 is Rs.1,000/- per month. On the other hand, the rent receipts/Ex.R1 paid from May, 2013 to July, 2014 are indicating that the monthly rent paid is @ Rs.1,500/-. When the rent paying by respondent is @

Rs.1,000/- p.m., it is unknown as to how he obtained rent receipts @

Rs.1,500/- p.m. It raises a strong doubt against the genuineness of Ex.R1 in favour of case of petitioners. In these circumstances, examination of the original landlord of respondent Ch. Jayaprakash is very much required to prove that the respondent is regularly paying rents to him and that landlord issued Ex.R1. However, he was not examined for the reasons best known to respondent. It clearly shows that the contention of respondent that he is regularly paying rents to Ch. Jayaprakash is not believable. Therefore, the respondent is in the possession of schedule property as tenant without

RCC 29/2012 8 7.11.2015 payment of rents and without filing application under Section 9 of the Rent

Control Act seeking permission to deposit the rents before Rent Controller. It certainly amounts to willful default in payment of rents by respondent and it is a sufficient ground for directing him to vacate the schedule property.

19. It is undisputed fact that the suit in O.S.No.403/2010 filed by the petitioners herein against the Municipal Corporation, Nellore, against the respondent herein and tenant of adjacent portion was decreed directing the

Municipal authorities to demolish the dilapidated schedule property. Said certified copy of judgment is marked as Ex.P5. The certified copy of counter in

I.A.No.596/2010 of said suit was also produced as Ex.P3. The Advocate

Commissioner report, certified copy of the same was filed as Ex.P4, also shown that the schedule property was in dilapidated condition. It is also undisputed about said observation of the Advocate Commissioner in the Ex.P4 report.

Respondent himself admitted that a front portion of schedule property was already demolished by the Municipal authorities. Further in the judgment and decree dt.16.11.2012 of O.S.No.403/2010 on the file of Prl. Junior Civil Judge's

Court, Nellore the court ordered to demolish the same and to prevent the public nuisance. Therefore, on this ground also the respondent is not entitled to stay in the schedule property and he shall be evicted.

20. During the pendency of the proceedings of this petition, the learned counsel for the petitioners filed certified copy of judgment and decree in O.S.No.7/2013 on the file of Iv Addl. District Judge, Nellore dt.29.6.2015 which shows that the said suit filed by the original owner Cheetherala

Jayaprakash for cancellation of the G.P.A.-cum-Sale agreement was dismissed for default. There is no material on record to show that the said judgment was set aside. Therefore, the litigation initiated by the original landlord of respondent i.e. Ch. Jayaprakash against the petitioners herein was ended by the dismissal of the suit in O.S.No.57/2-13. Further there is no evidence on record to show that whether the said Jayaprakash or respondent filed a suit for cancellation of the registered Sale deed dt.5.3.2012/Ex.P1 in respect of the suit schedule property. Said registered sale deed clearly shows that the petitioners are the title holders of schedule property.

21. The learned counsel for the respondent filed a decision of

Hon'ble High Court of Andhra Pradesh in Kavitha Gurrala V. Bharat

RCC 29/2012 9 7.11.2015

Petroleum Corporation Ltd. and others; 2011 (1) ALD 262 wherein at

Para 24, the court observed that the G.P.A. authorizing the donee to manage and to sale to others on behalf of executant is not valid even though the possession was transferred to the said donee. In the case on record, the petitioners have already regularized the GPA-cum-Sale agreement executed in their favour by the original owner Jayaprakash. Except making the allegation of forgery of the said GPA, it was not proved in the civil court. Further, said

GPA was regularized by registered Sale deed/Ex.P1 in favour of the petitioners.

In these circumstances, keeping due respects to the possession of the Hon'ble

High Court of Andhra Pradesh, it is observed that said decision is not applicable to the case on record.

22. In the light of above discussed evidence, facts and circumstances of the case, the court is of the considered view that the respondent willfully defaulted in payment of rents since the date of execution of registered sale deed/Ex.P1 dt.5.3.2012. Further, the schedule property was also proved as in dilapidated condition and required for its demolishen. On these two grounds, the respondent shall be evicted from the schedule property. Accordingly, the point is answered in favour of the petitioners against the respondents.

23. In the result, the petition is allowed with costs directing the respondent to vacate and deliver vacant possession of schedule property to petitioners within two months of passing of this order, failing which, the petitioners can get it be done under due process of law.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open court on this the 7th day of November, 2015.

RENT CONTROLLER-CUM-

Principal Junior Civil Judge,

Nellore

APPENDIX OF EVIDENCE

Witnesses examined

For Petitioner: For Respondent:

PW1: Y. Sreedevi. RW1: Muvvala Suresh.

Documents marked

For Petitioner:

EX.P1:The certified copy of Regd. Sale deed dt.5.3.2012 executed by one

RCC 29/2012 10 7.11.2015

Cheekirala Jayaprakash in favour of Y. Vijayamma and Y. Sreedevi i.e. petitioners.

Ex.P2:The certified copy of Order dt.20.9.2012 in RCC No.23/11 on the file of Rent Controller, Nellore.

Ex.P3:The certified copy of counter in I.A.No.596/2010 of

O.S.No.403/2010 on the file of P.D.M. Court, Nellore.

EX.P4:The certified copy of report of Advocate Commissioner in Crl.M.P. No.17/2011 of C.A.No.196/2010.

EX.P5:The certified copy decree and judgment in O.S.No.403/2010 on the file of P.D.M. Court, Nellore.

For Respondent:

EX.R1:The rent receipts 6 in number.

R.C.-cum- Prl. J.C.J., Nellore.

RCC 29/2012 11 7.11.2015

Id/- S.C.B.,

//True Copy//

RENT CONTROLLER-CUM-

Principal Junior Civil Judge,

Nellore

OS 160/2014 1 4.11.2015

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE::NELLORE.

Wednesday, this the 4th day of November, 2015

PRESENT: - SRI S. CHINA BABU,

Principal Junior Civil Judge, NELLORE.

Original Suit No.160/2014

Chekka Anuradha... Plaintiff

Vs.

Shaik Rubiya... Defendant

This suit coming up for final hearing before me on 30-10-2015 in the presence of Smt./Kumari Ch. Lakshmi, Advocate for plaintiff and of Smt./Kumari G.V.L. Nagamani, advocate for the defendant and having stood over for consideration till this day, this Court delivered the following::

J U D G M E N T

1. This is a suit for recovery of sum of Rs.83,693/- from defendant basing on a promissory note.

2. The averments of plaint, in brief, are as follows:

The defendant borrowed a sum of Rs.15,000/- on 17.5.2011 and executed a promissory note in her favour undertaking to repay the debt amount with interest @ 24% p.a. either to plaintiff or to her order on demand. Inspite of repeated demands made by plaintiff, the defendant did not choose to repay the debt amount. Further, the plaintiff filed creditor's Insolvency Petition (hereinafter referred as I.P., for brevity) under I.P.No.39/2014 on the file of Senior Civil Judge's Court, Nellore against the defendant and one K. Lakshmi Parvathi relating to the suit promissory note and the defendants also filed I.P.No.47/2013 on the file of Principal Senior Civil Judge, Nellore against the plaintiff and two others relating to the sale promissory note. Both the said I.Ps. are pending

before on the file of Hon'ble Principal Senior Civil Judge, Nellore.

Defendant is not an agriculturist and thereby he is not entitled for the benefits of Debt Relief Acts. Hence the suit.

OS 160/2014 2 4.11.2015

3. The defendant filed written statement denying the

material contentions of the plaint. The averments of the written

statement, in brief, are as follows:-

It is true that the defendant borrowed a sum of Rs.50,000/- from the plaintiff and executed the suit promissory note in favour of the plaintiff. If the defendant filed I.P.No.47/2013 i.e. debtor's I.P. To declare her as an insolvent and the same is pending. This plaintiff was shown as 1st respondent and the suit debt was also shown in the said petition, but the said facts were suppressed in the original plaint. The plaintiff also filed a creditor's I.P.No.39/2014 against this defendant and the same is also pending. In the said I.P. Also, the plaintiff never averred about the fact of filing the I.P. By this defendant. In fact, the defendant admitted the suit debt, but she has no capacity to pay said debt and hence she filed I.P. No.47/2014 to declare her as an insolvent. Under Section 28 (4) of the Provincial Insolvency Act, no creditor ought to file a suit against the debt who filed the petition invoking Section 10 of the Insolvency Act to have declared himself as insolvent, without obtaining permission from the insolvency court. As the plaintiff not obtained such permission, the suit against the defendant is liable to be dismissed.

4. During the trial, the plaintiff herself was examined as Pw 1 and got marked Ex.A1. On behalf of the defendant, the defendant was examined as DW1 and no documentary evidence was let in on her side.

5. Heard the counsel for plaintiff. Inspite of repeated opportunities, the defendant not submitted her arguments and thereby basing on the material on record, the judgment is going to be

pronounced.

6. Basing on the pleadings the following issues are settled for trial:-

1. Whether the suit is not maintainable on reason of filing of the same without permission of the court dealing with the I.P.No.47/20313 filed by the defendant?

2. Whether the plaintiff is entitled for recovery of suit amount?

3. To what relief?

OS 160/2014 3 4.11.2015

ISSUE NOs.1 & 2:-

In view of interlink between the issue Nos.1 and 2 and to avoid repetition of discussions, both the issues are dealt with together.

7. The defendant admitted the borrowal of amount of

Rs.50,000/- from plaintiff and execution of the suit promissory note/Ex.A1 in her favour. Therefore, it is not necessary for plaintiff to establish her case as to the pronote transaction.

8. The contention of defendant is that she being a debtor filed I.P. No.47/2013 against the plaintiff herein and others and the present pronote debt was also mentioned in the said petition and hence it is mandatory for plaintiff to obtain permission of the said insolvency court under Section 28 (4) of the Provincial Insolvency Act, 1920 to file present suit against her, but the plaintiff not taken such permission and thereby the suit is not maintainable. This contention of defendant was denied by plaintiff.

9. In view of the aforementioned contention of defendant, it is pertinent to mention the said legal provision.

Section 28 (4) of the Provincial Insolvency Act, 1920 reads that –

All property which is acquired by or devolves on the insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the court or receiver, the provisions of Sub-Section (2) shall apply in respect thereof.

10. On going through above said legal provision, it is apparent that it was nothing mentioned about obtaining permission of the insolvency court before filing the suit by plaintiff against the defendant herein. Therefore, the contention of defendant that as per the provisions

OS 160/2014 4 4.11.2015

of Section 28 (4) of the Act obtaining permission of the insolvency court for filing the present suit is not tenable.

11. However, Section 28 (2) of the Provincial Insolvency Act, 1920 is somewhat related to above said contention of the defendant. For convenience sake, it is given below.

Section 28 (2) of the Provincial Insolvency Act, 1920 reads that –

Effect of an order of adjudication:- (2) On the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a receiver as hereinafter provided and shall become divisible among the creditors, and thereafter except as provided by this Act, no creditor to whom the insolvent is indeputed in respect of any debt provable under this Act shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt, or commence any suit or other legal proceeding, except with the leave of the Court and on such terms as the Court may impose.

12. The above said legal provision clearly shows that only after passing of order of adjudication declaring the debtor as insolvent, then the whole property of the debtor become divisible among the creditors and then only the bar of filing suit without permission of insolvency court would come into picture.

13. In the case on record, it is not the case of defendant that the order of adjudication of insolvency of the defendant was passed by the concerned insolvency court in her I.P.No.47/2013. Moreover, as rightly pointed out by learned counsel for plaintiff the defendant did not disclose in her written statement that she has any immovable property.

In the absence of disclosing the same, the defendant is not entitled to make her above said contention. However, said contention is premature as the order of adjudication of insolvency of defendant is not at all passed. Therefore, the contention of defendant is found to be untenable.

14. In the light of above said discussion, it is found that the suit transaction is proved and on other hand the contentions raised by

OS 160/2014 5 4.11.2015

defendant were found as untenable. Therefore, the plaintiff is certainly entitled for the relief sought by her. Accordingly, the issue Nos.1 and 2 are answered in favour of plaintiff against the defendant.

ISSUE NO.3:-

In view of issue Nos.1 and 2 are answered in favour of plaintiff, the suit shall be decreed with costs.

15. In the result, the suit is decreed with costs for

Rs.83,693/- with subsequent interest @ 12% p.a. from the date of suit till the date of decree and with 6% p.a. from the date of decree till the date of realization on the principal amount of Rs.50,000/-.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the open court on this the 4th day of November, 2015.

PRL. JUNIOR CIVIL JUDGE,

NELLORE.

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintiff:For Defendant: PW1: Chekka Anuradha.DW1: Shaik Rubia.

Documents marked

For Plaintiff:

EX.A1:The promissory note dt.17.5.2011 for Rs.50,000/-.

F or Defendant : Nil

Prl. J.C.J., Nellore.

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: NELLORE

Tuesday, this the 3rd day of November, 2015

Present: Sri S. China Babu,

Principal Junior Civil Judge , Nellore.

O.S.No.275/2015

Chintha Sreenivasulu... Plaintiff

Vs.

Thummaluru Venkata Rama Krishnaiah... Defendant

This suit coming up for final hearing before me on 2-11-2015 in the presence of Sri Banda Sreenivasulu, Advocate for plaintiff and the defendant remained exparte and having stood over for consideration till this day, this Court delivered the following::

J U D G M E N T

1. This is a suit filed by the plaintiff against defendant for recovery of Rs.2,16,300/- basing on a promissory note dt.5-10-2012.

2. The material aspects of the plaint are that:-

The defendant borrowed a sum of Rs.1,30,000/- from the plaintiff on 5.10.2012 for his necessities and in consideration thereof, he executed a promissory note in favour of the plaintiff on the same day agreeing to repay the said amount together with interest at the rate of 24% p.a. either to the plaintiff or to his order on demand. Inspite repeated demands made by the plaintiff, she failed to repay the debt amount.

Hence the plaintiff got issued legal notice dt.20.10.2014 to defendant demanding him to repay the said debt amount together with interest @ 24% p.a. But he neither paid the above said debt nor gave any reply.

Further, the defendant is not an agriculturist and hence he is not entitled for any benefit under debt relief Acts.

3. Having received summons through court, the defendant did not turn up to court and did not contest the matter. Hence, the court set him exparte.

4. To prove the case, the plaintiff was himself examined as PW-1 and got marked Exs.A1 to A3.

5. Heard the learned counsel for plaintiff.

6. Now the point for consideration is:-

Whether the plaintiff is entitled to recover the suit amount with subsequent interest and costs from defendant?

2

POINT:-

7. To prove his case, the plaintiff filed affidavit in lieu of his examination in chief as PW1 in support of his original version laid down in the plaint. His evidence is that the defendant borrowed Rs.1,30,000/- on 5-10-2012 and in consideration of the said debt, on the even date he executed a promissory note in favour of him, agreeing to repay the same with interest @ 24% p.a. either to him or to his order on demand.

8. In support of his evidence, he also produced the documentary evidence Exs.A1 to A3. Ex.A1 is the suit promissory note dt.15.10.2012 for Rs.1,30,000/-, Ex.A2 is the office copy of legal notice and

Ex.A3 is the postal acknowledgment. On perusal of Exs.A1 to A3, it is observed by the court that on 15.10.2012 the defendant borrowed

Rs.1,30,000/- from the plaintiff and on even date he executed promissory note in favour of the him and agreed to repay the debt with interest @ 24% p.a. Later he failed to pay the above debt inspite of repeated demands made by the plaintiff and even after receiving the legal notice, the defendant did not comply the demand and not given any reply.

9. On the other hand, the defendant not turned up to court and did not contest the matter. Thus the version of plaintiff was remained unchallenged. In these circumstances, the plaintiff is certainly entitled for the relief claimed by him. Accordingly, the point is answered in favour of the plaintiff.

10. In the result, the suit is decreed with costs for an amount of Rs.2,16,300/- with subsequent interest at the rate of 12% p.a.

from the date of suit till the date of decree and at the rate of 6% p.a. from the date of decree till the date of realization on principal amount of

Rs.1,30,000/-.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open court on this the 3rd day of November, 2015.

Principal Junior Civil Judge,

Nellore

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:

PW.1: Chintha Sreenivasulu.

FOR DEFENDANT: NONE

3

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1:The promissory note dt.5.10.2012 for Rs.1,30,000/- executed by defendant in favour of plaintiff. Ex.A2:The office copy of legal notice dt.20.10.2014 issued to defendant. Ex.A3: The postal acknowledgment. FOR DEFENDANT: NIL

Principal Junior Civil Judge,

Nellore.