S. Ravi Kumar

AS.No.9 of 2023 1 of 15

IN THE COURT OF THE V ADDITIONAL DISTRICT JUDGE AT

BODHAN , NIZAMABAD DISTRICT

Present: Sri S.Ravi Kumar, V Additional District Judge, Bodhan,Nizamabad District.

Dated this the 21st day of April, 2025.

AS.No. 9 of 2023

Between :

1. G.Usha, w/o Om Prakash, Hindu, aged about 30 years, Occupation: Household, R/o H.No.5-72, Velmal village, Nandipet Mandal. Nizamabad District

2. Koyalkar Sainath, s/o Khaja, Hindu, age: 28 years, Occupation: Business, R/o H.No.1-1- 1287. Rakasipet Locality, Bodhan Town and Mandal, Nizamabad District. 3 Kumari Devi, D/o Khaja, Hindu, aged about 25 years, Hindu, Occupation: Nil, H.No.1-1-

1287, Rakasipet locality, Bodhan Town and...Appellants.

Mandal, Nizamabad District.

And

1. Koyalkar Vittal, s/o Lingoji, Hindu, aged about 62 years. Occupation: Business, R/o 1-1-1355, Rakasipet locality of Bodhan Town and Mandal, Nizamabad District.

2. Laxmi Bai, w/o Ratan, Hindu, aged about 59 years, Occupation: Household, R/o 22-55, Kamareddy village and Mandal of Nizamabad District.

3. Koyalkar Khaja, s/o Lingoji, Hindu, aged about 55 years, Occupation Business, R/O 1-1-1287, Rakasipet locality of Bodhan Town and Mandal, Nizamabad District.

4. Koyalkar Jaloji s/o Lingoji. Hindu, aged about 50 years, Occupation: Business, R/o 1-1-1287, Rakasipet locality of Bodhan Town and Mandal, Nizamabad District.

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5. Koyalkar Mohan, s/o Lingoji, Hindu, aged about 48 years, Occupation: Business, R/o 1-1-1287, Rakasipet locality of Bodhan Town and Mandal. Nizamabad District.

6. Koyalkar Srinivas, s/o Lingoji, Hindu, aged about 35 years, Occupation: Business, R/o 1-1-1287, Rakasipet locality of Bodhan Town, within the limits of Bodhan Town and Mandal of Nizamabad District, TS.

..Respondents

This Appeal is preferred under Order: XLI Rule: 1 of the Code of Civil Procedure against the Judgment and Decree dated 20.03.2023 in OS.No.66 of 2015 passed by the learned Senior Civil

Judge, Bodhan.

OS.No. 66 of 2015

Between :

G.Usha, w/o Om Prakash, Hindu, aged about 30 years, Occupation: Household, R/o H.No.5-72, Velmal village, Nandipet Mandal. Nizamabad District 2. Koyalkar Sainath, s/o Khaja, Hindu, age: 28 years, Occupation: Business, R/o H.No.1-1-1287. Rakasipet Locality, Bodhan Town and Mandal, Nizamabad District.

1. Kumari Devi, D/o Khaja, Hindu, aged about 25 years, Hindu, Occupation:Nil, H.No.1- 1-1287, Rakasipet locality, Bodhan Town and Mandal, Nizamabad District.

2. Koyalkar Vittal, S/o Late K.Lingoji, Hindu, aged about 62 years, Occupation: Business, R/o H.No.1-1-1355 (new)

Rakasipet locality of Bodhan Town and..Plaintiffs

Mandal, Nizamabad District.

And

1. Koyalkar Vittal, s/o Lingoji, Hindu, aged about 62 years. Occupation: Business, R/o

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1-1-1355, Rakasipet locality of Bodhan Town and Mandal, Nizamabad District.

2. Laxmi Bai, w/o Ratan, Hindu, aged about 59 years, Occupation: Household, R/o 22- 55, Kamareddy village and Mandal of Nizamabad District.

3. Koyalkar Khaja, s/o Lingoji, Hindu, aged about 55 years, Occupation Business, R/o 1-1-1287, Rakasipet locality of Bodhan Town and Mandal, Nizamabad District.

4. Koyalkar Jaloji s/o Lingoji. Hindu, aged about 50 years, Occupation: Business, R/o 1-1-1287, Rakasipet locality of Bodhan Town and Mandal, Nizamabad District.

5. Koyalkar Mohan, s/o Lingoji, Hindu, aged about 48 years, Occupation: Business, R/o 1-1-1287, Rakasipet locality of Bodhan Town and Mandal. Nizamabad District.

6. Koyalkar Srinivas, s/o Lingoji, Hindu, aged about 35 years, Occupation: Business, R/o 1-1-1287, Rakasipet locality of Bodhan Town, within the limits of Bodhan Town and Mandal of Nizamabad District, TS.

..Defendants

This Appeal suit coming on this the2 4 th day of March, 2025 for final hearing in presence of Sri. C. Gopal Reddy, Advocate for the Appellant and Sri V.R. Desai, Advocate for the respondent, having stood over for consideration till this day, this Court delivered the following:

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

1.The appellants are the plaintiffs filed this appeal suit aggrieved by the judgment and decree dated 20.03.2023 in OS. No.66/2015 (common judgment in O.S.No.48/2015 and O.S.66/2015) on the file of the Senior Civil Judge, Bodhan (the parties are referred as averred

AS.No.9 of 2023 4 of 15

before trial court).

2. The facts that leads to this appeal suit:- (a) The plaintiffs being the children of defendant No.3 filed suit seeking partition of suit schedule properties/A/11 landed properties, B/house plots and C/4 residential houses and separate possession of 1/4th share in the 1/6th share of defendant No.3, claiming that the defendants are children of Lingoji and the plaintiffs and defendants are constitute a

Hindu joint undivided family having ancestral/suit schedule properties, derived from common ancestor Koyalkar Lingoji. Originally Koyalkar

Hussain, paternal grand father of defendants is common ancestor and resident of Banswada village who died about 40-50 years back.

On his death, the ancestral house at Banswada was sold away by the

Lingoji. The father of the defendants migrated to Bodhan, he purchased the suit schedule property with the sale proceeds of the said house. The Lingoji was died in the year 1997 leaving behind him, plaintiff and defendants as his legal heirs and successors to the suit schedule properties, as such the suit schedule properties are joint family properties. On death of Hussain and Lingoji the defendants succeeded, as a family, the defendant No.1 being elder brother and head of the family, succeed as a family head by choice.

(b) The plaintiffs being coparceners acquire an interest in the

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coparcenary property i.e., suit schedule properties; by birth and has got right to enforce the partition. As on today no registered partition took place between plaintiffs and defendants, as such under Hindu

Succession (Amendment) Act 2005, which came into force from 09.09.2005, the plaintiffs interest in the suit schedule property is remains.

(c)The suit schedule properties are stands in the name of defendants 1 to 6, as such the other family members i.e., plaintiffs and defendants are deemed to be in possession as per the record.

The defendant No.1 is acting illegal and improper, prejudicial to the joint interest and enjoyment.

(d)On 18.10.2015 the plaintiffs expressed their intention to separate from joint family and asked the defendants to allot their 1/4th share, out of the 1/6th may be allotted to defendant No.3, but they refused to do so. Hence, this suit.

3. The defendants 1 and 2 filed written statement denying the allegations of the plaintiffs while admitting the relationship between the parties, Husain and Lingoji and also their death and submit the real facts, as a mater of fact as there is no cause of action as alleged by the plaintiffs and the suit is barred by limitation, valuation is incorrect and this court has no jurisdiction to entertain the present suit

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as the subject mater was decided by this court on 24.01.2013 in

O.S.No.61/2008.

(b) As a matter of fact, the defendant No.5 herein filed a suit in

O.S.No.61 of 2008 on the file of Senior Civil Judge, Bodhan against

the defendants 1 to 5 for partition which was dismissed on 24.01.2013 with a finding there was a partition was effected on 14.07.1998 in respect of the suit schedule properties herein, no appeal is preferred by the father of the plaintiffs or any other party to the suit, as such the present suit is not tenable. If at all the plaintiffs has any grievance, it is against their father/defendant No.3 only, but not other family members. After lapse of 8 years with a malafide intention, the defendant No.3 herein got filed the above suit through his daughters and son, which is bad in the eye of law and hit by section: 11 of C.P.C.

(c)Long back defendant No.3 converted into muslim, as such his children filing suit as per Hindu Law and Hindu Succession Act is bad in the eye of law. The suit is barrd by limitation, the suit is not tenable on the ground that non joinder of necessary party to the suit, which was also decided in O.S.No.61/2003 vide para No.33 of the judgment

dated 24.01.2013. Prays to dismiss the suit with costs.

4.The defendants 3 to 6 were set ex-parte.

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5. The following issues were framed:- (1) Whether the plaintiffs are entitled for partition and separate possession ?

(2) Whether the suit is barred by res-judicata in view of Judgment in O.S.No.61/2008 ?

3) Whether the present suit is maintainable under the Hindu Succession Act ?

4) Whether the suit is bad for non-joinder of necessary parties?

5) To what result?

6. As the children of defendant No.3 also filed in O.S.No.48/2015

before the Senior Civil Judge’s Court, Bodhan as per the orders dated

26.08.2019 in I.A.No.358/2019 both the suits are clubbed for common trial and the evidence recorded in O.S.No.66/2015 in this suit.

7.During the trial, on behalf of the plaintiff, the Pws.1 to 3 examined, marked Exs.A1 to A21. On behalf of the defendants,

Dws.1 to 3 and marked Exs.B1 to B17.

8.Upon hearing and perusal of the record the learned Senior

Civil Judge, Bodhan dismissed the suit with a finding that long back in

the year 1998 partition effected and the parties are possession of their respective shares and also some of the properties were sold. If at all the plaintiffs having right, they are entitled to claim in the properties of defendants 3.

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9.Heard the learned Counsel for the Appellants and respondent

No.1.

10.Now the Points for consideration is;

1) Whether the suit schedule properties are ancestral properties of plaintiffs and defendant and in joint possession of plaintiffs and defendants?

2) Whether the plaintiffs are entitled for partition of the suit schedule properties as prayed for?

11. FINDINGs:

Points 1 and 2:-

(a)The counsel for the appellant submits that the plaintiffs being the coparceners, having equal share by birth in the suit schedule properties by virtue of 2005 amendment to the Hindu Succession Act.

Since, there is no registered partition among the defendants, the oral partition is not binding on them. As such, the trial court erroneously dismissed the suit.

(b) On the other hand the counsel for the respondents submit that though the plaintiffs claim their great grand father Hussain had house in Banswada by selling the same his son Lingoji/their grand father purchased the suit schedule properties, but the same was not proved

AS.No.9 of 2023 9 of 15

with cogent evidence and there is no assertion in the evidence.

Even in the plaint pleaded that the suit schedule properties are hailed from Lingoji who is father of the defendants. Absolutely there is no proof that the suit schedule properties were emanated from the

Hussain who is said to be great grand father of the plaintiffs. The judgment and decree of OS.No.61/2008 is clear that the partition was took place among the defendants and their mother in 1998, if at all the plaintiffs had right, they can seek partition in the properties of their father/defendant No.3. If the suit schedule property are ancestral then only they have share by birth in the share of their father. Therefore, the trial court rightly dismissed the suit.

(c) As point out by the counsel for the respondent absolutely there is no proof that the suit schedule properties are purchased by the Lingoji/grand father of the plaintiffs with the sale proceeds of the house of his father Hussain at Banswada, and purchased the suit schedule properties with the said sale proceeds. Therefore, the suit schedule properties cannot be termed as ancestral properties.

(d)In view of the rival contentions of the appellants and respondents, as to ancestral property/coparcenary, here it is better to know what is the ancestral properties.

(e)Joint Hindu Family:-

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It is presumed that the family continues to be a joint family if it is joint in affairs of food, worship, and estate as observed in

Rukhmabai v. Lala LaxmiNarayan; Rajagopal v Padmini.

However, if a family is not joint in food and worship, i.e. even if they live separately, they constitute a Joint Hindu family provided they are joint in the estate.

(f) Composition:- It consists of all the family members i.e. all the male members descended lineally up to any generation from a common ancestor together with their mothers, wives, widows, and unmarried daughters as observed in Surjit Lal Chhabda v.

CIT. A daughter remains a part of her parents’ joint family, till the time she is unmarried. Once she gets married, she becomes a part of her husband’s Joint Hindu family.

If the daughter is deserted by her husband or becomes a widow, and returns to her father’s home permanently, she again becomes a part of that Joint Hindu family. Her children, however, remain a part of their father’s Joint Hindu family and do not become a part of the mother’s father’s Joint Hindu family.

(g)Concept of Ancestral Property:-

Property inherited by a Hindu from his father, father's father or father's fathers' father, is ancestral property. Any property acquired by the Hindu great grand father, which then passes undivided down the next three generations up to the present generation of great grand son/daughter.

(h)The characteristic features of a coparcenary are:

AS.No.9 of 2023 11 of 15

(1) Existence of property – Existence of JEP is essential in a coparcenary. If a Hindu acquires property in his lifetime, on this death, the property inherited by his son shall be held by the latter as JFP and he will from a coparcenary along with his sons by operation of law, whether he likes it or not.

(2) Only males – Only males (till 2005), including the adopted ones, can be members of a coparcenary. An illegitimate son, although a member of a joint family, is not a coparcener. An insane son is a coparcener, though he has no right to claim partition.

(3) Four generation rule – Only such males as are within four generation from, and inclusive of, the last male holder or owner of property – the eldest surviving male member in the family – from a coparcenary.

(4) Interest by birth – Coparceners acquire interest in the joint family property from their birth, rather conception (i.e. a child in mother’s womp). The doctrine of the right by the birth is a unique feature of the coparcenary as it gives a right in the property of a person to another during the lifetime of the former, the owner.

5. Elaborate the essential characteristics of a Mitakshara Coparcenary. In what respects does it differ from a Mitakshara Joint Family? [L.C.I-96; L.C.II-95/96]

Explain the concept and incidents of a Mitakshara Coparcenary. [D.U.-2010] (5) Rule of survivorship and fluctuation of interest – On the death of a coparcener, his interest in the JFP devolves on the surviving coparceners by rule of survivorship and not according to law of succession. Suppose Ram has two sons S1 and S2. On death of S2, his share in the family property will vest in the surviving two coparceners Ram and S1; and the share to which each coparcener would have been entitled during the lifetime of S2 on partition (one-third), would be enlarged in case of Ram and S1 on the death of S2 to half each.

AS.No.9 of 2023 12 of 15

If after death of S2, two more sons S3 and S4 are born to Ram, there will be four coparceners and hence four shares on partition. As a result, the interest of the coparcener in the coparcenary property fluctuates with the birth (diminishes) and death (enlarges) of the coparceners; hence no coparcener can claim a definite share in the JFP whilst the family remains joint.

(6) Coparcenary within a coparcenary – Within a joint family, there can be coparcenaries more than one in different branches of the family. Likewise there can be a coparcenary within a coparcenary. This is because a coparcenary is formed automatically by operation of law, and the moment a Hindu inherits property, from his father, grandfather or great grandfather, he immediately forms a coparcenary with his sons, grandsons and greats grands.

For example, a coparcenary consists of A and his three sons B, C and D, C and D had two sons each. If C and D asquire separate property and dies, the sons of C (and D) inherit the separate property of C (and D) and between themselves constitute a coparcenary. If sons are born to sons of C and D, they will get a birth right not merely in the coparcenary headed by A but also in the sub-coparcenary created among the sons of C and D.

(i)HINDU JOINT FAMILY AND COPARCENARY PROPERTY

The joint family and the coparcenary:- The institution of the joint family is peculiar to Hindu society. It is legal entity represented by its Karta. The Karta is the senior-most male member. His position is suigeneris. Some of the male members three degrees of male lineal descendents of the family are coparceners. They have a right to insist upon the partition of the property of the joint family. The other members are the dependants of the coparceners. They have only a right of maintenance. They are members of the joint family but not of the coparcenary.

(j)Who are coparceners?

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Coparceners are those who have an interest by birth in the joint family property. In the ancestral property of a male his son, grandson and great-grandson have an interest by birth. For example A has two sons, B and C and a daughter, D. B1 and B2 are the sons of B. C1 and C2 are sons of C. B3 and B4 are the sons of B1 and B5 is the son of B2, D1 and D2 are the daughters of C1 and C2 respectively. In A's property, his sons, B and C, grandsons, B1, B2, C1 and C2 and great grandsons, B3, B4 and B5 have an interest by birth. On the death of one coparcener, his interest passes to others by survivorship As wife A1, the daughter D until her marriage, wives of sons and grandson and great-grandsons are all members of the joint family but are not coparceners. They have no interest by birth and no right to survivorship.

_______________A = A1 (Wife)_____________ | | | B C D | | | | | | B1 B2 C1 C2 | | | | | | | | | B3 B B5 D1 D2 [GENEOLOGICAL TABLE] (FIGURE-2)

(k)Coparcenary property:- A text of Yajnavalkya says: "In land corrody or wealth received from the grandfather, the ownership of the father and son is equal". It means that the son can enforce a partition in ancestral property, that is, property descending to the father from his male ancestors. Such property becomes coparcenary property in

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the hands of the sons. Their sons, grandsons and great- grandsons can claim a share in it by birth. The share obtained by enforcing a partition would also be coparcenary property. The self acquired property of the coparceners may be kept apart by them or may be blended by them with the coparcenary property. When it is thrown into the common hotchpots it is blended with it and becomes coparcenary property. Property purchased by a female with her funds would not without any other evidence divest the owner of a right in property so as to give it the character of joint family property.

(l) As the plaintiffs failed to prove that the suit schedule properties purchased with the income/sale proceeds of house belongs to their great grand father Hussain, they are not entitled equal share by birth in the properties succeeded by their father/defendant No.3. It is only after death of their father/D3 alone they are entitled to seek partition under section: 8 of Hindu Succession Act.

(m)Admittedly, the properties were partitioned among the defendants and their mother and even they have sold some extent of properties, as such the question of defendant No.1 is being the head of the family in the custody of suit schedule properties is false. The defendant No.3 who is father of the plaintiffs remained ex-parte in this suit. On the other hand he contested the suit filed by his brother Vittal

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who is 1st defendant herein and also gave evidence as DW.2, itself clearly reveals that with a malafide intention he got filed the present suit through his children. Since, the plaintiffs failed to prove the suit schedule properties are ancestral properties, the question of they are entitled for share by birth in the share of their father by virtue of amendment 2005 to the Hindu Succession Act does not arise. The contention of the plaintiffs that the unregistered partition has no validity and not binding on the plaintiffs does not arise. In these circumstances, there is no merits in appeal suit and it is liable to be dismissed.

12. In the result, the Appeal Suit is dismissed with costs through out to the respondents/defendants.

Dictated to stenographer grade-I, transcribed by him, corrected and

pronounced by me in open Court, on this the 21st day of April, 2025.

V Additional District Judge, Bodhan.

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IN THE COURT OF THE V ADDITIONAL SESSIONS JUDGE, BODHAN.

Present: Sri S.Ravi Kumar, V Additional Sessions Judge, Bodhan.

Dated this the 17th day of April, 2025

Criminal Appeal No. 21 of 2024

Between:

1) Guguloth Srinu, S/o Rekya, aged 6 years, Occupation: Agriculture

2) Smt. Guguloth Buri, S/o Rekya Nayak, aged 54 years, Occ: Labour

3) Guguloth Rekhya, S/o Late Hemla, aged 56 years, Occ: Agriculture,

4) Smt. Guguloth Anusha, W/o Srinu, aged 4 years, Occ: Labour, All R/o Bellal v) of Bodhan Mandal, Dist: Nizamabad.

..... Appellants/accused No.2 to 5

and

The state, represented by Bodhan Town police station.

….. Respondent/complaint

This Criminal appeal has come before me on 09.04.2025 for final hearing in presence of Sri T.Narsimha Reddy, Advocate for the Appellant and the Additional Public Prosecutor for the State and having stood over for consideration, till this day, this Court delivered the following:-

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

1) The Criminal appeal filed by the accused aggrieved their conviction and sentence by judgment, dt. 09-09-2024 in C.C.No.

638/2018 on the file of the Judicial Magistrate of First Class,

Bodhan.

Date:9-6-2022

Bodhan

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2) The brief facts of the case that leads to this appeal:- On 15- 06-2018 the Lw1/Smt. Guguloth Laxmi, gave report to the SHO,

Bodhan Town, alleging that they have constructed a cattle shed and both room in a vacant situate in front of their home. Their neighbour

Gugoloth Rekya, used quarrel and about them on every day claiming the said land as of them. On 13.06.2018 at about 11.00 a.m, the sons of Rekya, his wife and daughter in law/ Dharavath Sreenu, Boori and

Anusha together pushed along away, due to which the sustained injury to her hand, beat her husband with a stone and the bike ran over him. On that day come to P.S, gave report and went to hospital.

Again today afternoon 2.00 p.m, they Demolished bath room, seeking necessary action against them. As she is in hospital today she is giving report/application.

(b)On 15-06-2018 the Lw1/Smt. Guguloth Laxmi, gave report to the SHO, Bodhan Town, alleging that they have constructed a cattle shed and both room in a vacant situate in front of their home. Their neighbour Gugoloth Rekya, used quarrel and about them on every day claiming the said land as of them. On 13.06.2018 at about 11.00 a.m, the sons of Rekya, his wife and daughter in law/ Dharavath

Sreenu, Boori and Anusha together pushed along away, due to which the sustained injury to her hand, beat her husband with a stone and the bike ran over him. On that day come to P.S, gave report and went

Date:9-6-2022

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to hospital. Again today afternoon 2.00 p.m, they Demolished bath room, seeking necessary action against them. As she is in hospital today she is giving report/application.

(c)The Lw8/T.Govind, S.I of police, registered the FIR and entered the investigation to the Lw9/K.Ravinder, A.S.I of police, who investigated in to I.e on 16.06.2019, visited the scene of offence/ house of complainant at Bellal, in presence of mediators/ Lws 5 and 6 did panchanama to the scene, drawn rough sketch, as per the eye witnesses, when the accused pushed the complainant, she fell on the stones received injuries, over her right hand and the accused beat her husband/Lw2, with stone and pushed the motor cycle over him and caused injuries.

(d)On 19-06-2018, dt. 11.00 hours the accused surrendered before him and served notice U/sec. 41 (A) Cr.P.C to them, Collected the medical certificate of Lws 1 and 2from Lw7/Dr. Iffath-Us-Saqllam, Civil

Assistant Surgeon, Govt area, hospital, Bodhan and laid charge sheet alleging that the complainant and accused are neighbours to each others, having disputes regarding open place, between their house, as such the accused regularly used to quarreled with the complainant and her husband. The complainant constructed a cattle shed and both room in a open place, in-front of their house, on that the accused developed grudges. On 13-06-20218 at 11.00 a.m, the

Date:9-6-2022

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accused No. 1 to 5 came to the house of complainant, abused her in filthy language and pushed her on the ground, she fell on the stones, situate in front of Krishna Tailor shop, sustained injuries to her hand, when her husband came to rescue them the accused passed the motor cycle over him, caused injuries to his left leg. Later, on 15.06.2018 at 2.00 p.m, all the accused damaged the both room, as such they are punishable foro the offence U/sec. 323, 325, 427 r/w 34 of IPC.

3) The learned Judicial Magistrate of First Class, Bodhan, took cognizance for the offences Under Sections:323, 325, 427 r/w 34 of

IPC against the accused No.1 to 5 and issued summons to them. On appearance of accused, examined them U/sec.239, 325, 323, 427 r/w 34 of IPC Cr.P.C, explaining the substances of accusation, for which they pleaded not guilty and claimed to be tried.

4) During the trial, the on behalf of the prosecution examined Pws.1 to 6 and Ex.P1 to P7 marked. A1 reported died and the case against him abated. The accused No.2 to 5 were examined under section:

313 of Cr.P.C, explaining the incriminating evidence for which they denied the same as false and reported no defence.

Date:9-6-2022

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Crl.A.21/2023 5 of 10

5) Upon hearing and perusal of the record, the learned Judicial

Magistrate of First Class, convicted and sentenced the A2 to A5 for

the offences U/sec. 504 and 506 r/w 34 of IPC and sentenced to pay a fine of Rs. 1500/- each for each offence.

6) Heard the learned counsel for Appellant and Additional Public

Prosecutor.

7) Now the point for consideration is whether the learned Judicial

Magistrate of First Class, Bodhan, has committed any error in

convicting the accused for the offences (lesser than charges) U/sec. 504, 506 IPC and it is liable to be set aside.

8) The counsel appellants submits that the complainant/Lw1 died/ not examined, Lw2 who is husband of Lw1, examined as Pw1, except to the pw1, others not supported the case of prosecution, even I.O did not brought proof of damage of bathroom. The evidence of Pw1 is contrary to his own statement and Lw1 and also complaint/report/ ex.P1. The evidence of is contrary to medical certificate/ Ex.P6 and 7, as to their injuries. The Doctor who treated the lw1 and Pw1, not examined. In this circumstances believing the Pw1, convicting the accused by his contrary by Law and caused miscarriage of justice and the same is liable to be set aside.

9) On the other hand, the learned Additional Public Prosecutor submits that since, the Pw1 is also victim of the accused, who used to abuse them in filthy language, posing threats, the learned Judicial

Date:9-6-2022

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Crl.A.21/2023 6 of 10

Magistrate of First Class, rightly convicted the accused for the

offences U/sec. 504, 506 of IPC and it does not warrant any interference by this court.

10)Upon verification of the evidence on record, it is found that the

Pw3 is said to be an eye witness to the offence, Pws 4 and 5 who are panchayathdars for scene of offences, by the Pw6 /I.O did not support the case of the prosecution. The Pw3 state that he do not know what happened on that day.

11)The Ex.P1/report dated 15.06.2018 was marked through Pw.1, but he is not a signatory to that. In fact the wife of Pw.1/Laxmi is the complainant.

12)The Ex.P1 reveals that they have constructed a cattle shed and bathroom in the vacant site in front of their home. Their neibhour

Gugoloth Rekya, used to abuse them on every day claiming that site belongs to them. On 13.06.2018 at about 11.00 a.m., the sons, wife and daughter-in-law of Rekya/Gugloth Dayakar, Seenu, Boori and

Anusha, all together pushed her, due to which she sustained injury to her hand, beat her husband with a stone and caused to ran the bike over him. On that day came to P.S. gave report and went to hospital, again today afternoon 2.00 p.m., demolished the bathroom, seeking

Date:9-6-2022

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Crl.A.21/2023 7 of 10

necessary action against them as she was in hospital, today giving the application/report.

13) There is no complaint in police station on 13.06.2018 as mentioned in the report/Ex.P1. It is clear from the report/Ex.P1, the accused beat the Lw.1 and Pw.1 on 13.06.2018 only and they have demolished the bathroom on 15.06.2018. There is no whisper by the

Pw.6 as to lodging of complaint by the Lw.1 or Pw.1 on 13.06.2018.

14) The wound certificate of Lw.1, she sustained fracture Injuries to right forearm, but she did not mention in her report/Ex.P1 or her statement to the Pw.6, but she sustained fracture to her right forearm. If really she sustained such a fracture she could be in the hospital and the duty doctor could have been informed to the police, but it was not happened. On the other hand the statement of Lw.1 and also report/Ex.P1 reveals, when the accused pushed her she fell on the ground and sustained injury to her hand, but she did not state that she fell on the stones and sustained fracture as found by the

I.O./Pw.6 and mentioned in the charge sheet.

15)The Pw.1 in his evidence state, five years ago at about 11.00 a.m., the incident was occurred at his house, there was a quarrel between him and accused (as they are brothers) relating to land, on which he constructed a bathroom and the same was demolished by

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Crl.A.21/2023 8 of 10

the accused. Thereafter, the accused abused him and destroyed his

T.V. after some time the accused came to Tea stall again abused them, A1 drove his bike over his foot and he sustained injuries on his left foot, thereafter he went to his fields, then they beat the Lw.1 and she sustained fracture on the right hand wrist. Till date the accused threatening him that they kill him for the said land, on 15th they went to police station and lodged complaint.

16)In fact the complaint lodged by the Lw.1. The evidence of Pw.1 is contrary to the contents of the report/Ex.P1. As per the report/Ex.P1 on 13.6.2018 at 11.30 a.m., the accused beat the Lw.1 and Pw.1 and on 15.06.2018 they have demolished the bath room.

The evidence of Pw.1 reveals that entire incident i.e., beating him and his wife Lw.1 and demolishing the bathroom were took place on the same day i.e., on 13.06.2018.

17)The evidence of Pw.1 clearly reveals that the accused abused him only at tea stall i.e., away from his home, the A1 drove his bike over his foot and he went to the fields. If really he sustained injuries on his foot, he could have been went to the hospital, but not to the

Agricultural fields and he never spoke that he went to the hospital, but the wound certificate/Ex.P7 reveals that he took treatment on 13.06.2018 at 2.10 p.m., and also the weapon is mentioned as a hands, so totally false.

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18) The evidence of Pw.1 also clearly reveals that he was not present while the accused beating the Lw.1. As per the Pw.1 the accused ran over his bike on his foot at Tea Stall, then he went to the fields, but the accused beat the Lw.1. It means, the accused beat the

LW.1 near the tea stall only, which is contrary to the contents of the report. Further, the Pw.1 never spoke that the Lw.1 admitted in the hospital either on 13.06.2018 or 15.06.2018. Therefore, the wound certificate of Lw.1 also false.

19) The Pw.6/I.O, did not obtain any photographs to the demolition of bathroom. Though no witness corroborated, the evidence of Pw.1 itself whisper any truth as to the occurrence of alleged offence.

Therefore, abusing the Pw.1 by the accused cannot be believed when the main allegations itself is not reliable, in these circumstances, the learned magistrate finding the accused guilty for the offences under

Sec.504 and 506 of IPC is grave error and thereby caused miscarriage of justice. In fact, section: 504 of IPC has no relevance to the circumstances of the alleged offence.

20) For the forgoing analysis, it is found that the prosecution is failed to prove the guilt of the accused beyond all reasonable doubt and the trial court could have been acquitted them, but erroneously convicted and sentenced them for the offences U/sec. 504 and 506 of

IPC, which cannot be sustainable.

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21) In the result, the criminal appeal is allowed and thereby the conviction and sentence against Appellants/accused No.2 to 5 is set aside and thereby acquitted the appellants/accused No.2 to 5 U/sec.

386 (b) (i) Cr.P.C for the offence U/sec. 504 and 506 of IPC.

The fine amount paid by the appellants/accused shall be returned to them.

The bail bonds if any of appellants/accused shall stand cancelled and the sureties are discharged after lapse of six months/sec. 437-A Cr.P.C.

Dictated to Stenographer Grade-I, transcribed by him,

corrected and pronounced by me on this the 17th day of April, 2025.

V Additional Sessions Judge,

Bodhan.

To The Judicial Magistrate of First Class, Bodhan.

Date:9-6-2022

Bodhan

Crl.A.21/2023 1 of 10

IN THE COURT OF THE V ADDITIONAL SESSIONS JUDGE, BODHAN.

Present: Sri S.Ravi Kumar, V Additional Sessions Judge, Bodhan.

Dated this the 17th day of April, 2025

Criminal Appeal No. 21 of 2024

Between:

1) Guguloth Srinu, S/o Rekya, aged 6 years, Occupation: Agriculture

2) Smt. Guguloth Buri, S/o Rekya Nayak, aged 54 years, Occ: Labour

3) Guguloth Rekhya, S/o Late Hemla, aged 56 years, Occ: Agriculture,

4) Smt. Guguloth Anusha, W/o Srinu, aged 4 years, Occ: Labour, All R/o Bellal v) of Bodhan Mandal, Dist: Nizamabad.

..... Appellants/accused No.2 to 5

and

The state, represented by Bodhan Town police station.

….. Respondent/complaint

This Criminal appeal has come before me on 09.04.2025 for final hearing in presence of Sri T.Narsimha Reddy, Advocate for the Appellant and the Additional Public Prosecutor for the State and having stood over for consideration, till this day, this Court delivered the following:-

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

1) The Criminal appeal filed by the accused aggrieved their conviction and sentence by judgment, dt. 09-09-2024 in C.C.No.

638/2018 on the file of the Judicial Magistrate of First Class,

Bodhan.

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2) The brief facts of the case that leads to this appeal:- On 15- 06-2018 the Lw1/Smt. Guguloth Laxmi, gave report to the SHO,

Bodhan Town, alleging that they have constructed a cattle shed and both room in a vacant situate in front of their home. Their neighbour

Gugoloth Rekya, used quarrel and about them on every day claiming the said land as of them. On 13.06.2018 at about 11.00 a.m, the sons of Rekya, his wife and daughter in law/ Dharavath Sreenu, Boori and

Anusha together pushed along away, due to which the sustained injury to her hand, beat her husband with a stone and the bike ran over him. On that day come to P.S, gave report and went to hospital.

Again today afternoon 2.00 p.m, they Demolished bath room, seeking necessary action against them. As she is in hospital today she is giving report/application.

(b)On 15-06-2018 the Lw1/Smt. Guguloth Laxmi, gave report to the SHO, Bodhan Town, alleging that they have constructed a cattle shed and both room in a vacant situate in front of their home. Their neighbour Gugoloth Rekya, used quarrel and about them on every day claiming the said land as of them. On 13.06.2018 at about 11.00 a.m, the sons of Rekya, his wife and daughter in law/ Dharavath

Sreenu, Boori and Anusha together pushed along away, due to which the sustained injury to her hand, beat her husband with a stone and the bike ran over him. On that day come to P.S, gave report and went

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to hospital. Again today afternoon 2.00 p.m, they Demolished bath room, seeking necessary action against them. As she is in hospital today she is giving report/application.

(c)The Lw8/T.Govind, S.I of police, registered the FIR and entered the investigation to the Lw9/K.Ravinder, A.S.I of police, who investigated in to I.e on 16.06.2019, visited the scene of offence/ house of complainant at Bellal, in presence of mediators/ Lws 5 and 6 did panchanama to the scene, drawn rough sketch, as per the eye witnesses, when the accused pushed the complainant, she fell on the stones received injuries, over her right hand and the accused beat her husband/Lw2, with stone and pushed the motor cycle over him and caused injuries.

(d)On 19-06-2018, dt. 11.00 hours the accused surrendered before him and served notice U/sec. 41 (A) Cr.P.C to them, Collected the medical certificate of Lws 1 and 2from Lw7/Dr. Iffath-Us-Saqllam, Civil

Assistant Surgeon, Govt area, hospital, Bodhan and laid charge sheet alleging that the complainant and accused are neighbours to each others, having disputes regarding open place, between their house, as such the accused regularly used to quarreled with the complainant and her husband. The complainant constructed a cattle shed and both room in a open place, in-front of their house, on that the accused developed grudges. On 13-06-20218 at 11.00 a.m, the

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accused No. 1 to 5 came to the house of complainant, abused her in filthy language and pushed her on the ground, she fell on the stones, situate in front of Krishna Tailor shop, sustained injuries to her hand, when her husband came to rescue them the accused passed the motor cycle over him, caused injuries to his left leg. Later, on 15.06.2018 at 2.00 p.m, all the accused damaged the both room, as such they are punishable foro the offence U/sec. 323, 325, 427 r/w 34 of IPC.

3) The learned Judicial Magistrate of First Class, Bodhan, took cognizance for the offences Under Sections:323, 325, 427 r/w 34 of

IPC against the accused No.1 to 5 and issued summons to them. On appearance of accused, examined them U/sec.239, 325, 323, 427 r/w 34 of IPC Cr.P.C, explaining the substances of accusation, for which they pleaded not guilty and claimed to be tried.

4) During the trial, the on behalf of the prosecution examined Pws.1 to 6 and Ex.P1 to P7 marked. A1 reported died and the case against him abated. The accused No.2 to 5 were examined under section:

313 of Cr.P.C, explaining the incriminating evidence for which they denied the same as false and reported no defence.

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5) Upon hearing and perusal of the record, the learned Judicial

Magistrate of First Class, convicted and sentenced the A2 to A5 for

the offences U/sec. 504 and 506 r/w 34 of IPC and sentenced to pay a fine of Rs. 1500/- each for each offence.

6) Heard the learned counsel for Appellant and Additional Public

Prosecutor.

7) Now the point for consideration is whether the learned Judicial

Magistrate of First Class, Bodhan, has committed any error in

convicting the accused for the offences (lesser than charges) U/sec. 504, 506 IPC and it is liable to be set aside.

8) The counsel appellants submits that the complainant/Lw1 died/ not examined, Lw2 who is husband of Lw1, examined as Pw1, except to the pw1, others not supported the case of prosecution, even I.O did not brought proof of damage of bathroom. The evidence of Pw1 is contrary to his own statement and Lw1 and also complaint/report/ ex.P1. The evidence of is contrary to medical certificate/ Ex.P6 and 7, as to their injuries. The Doctor who treated the lw1 and Pw1, not examined. In this circumstances believing the Pw1, convicting the accused by his contrary by Law and caused miscarriage of justice and the same is liable to be set aside.

9) On the other hand, the learned Additional Public Prosecutor submits that since, the Pw1 is also victim of the accused, who used to abuse them in filthy language, posing threats, the learned Judicial

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Magistrate of First Class, rightly convicted the accused for the

offences U/sec. 504, 506 of IPC and it does not warrant any interference by this court.

10)Upon verification of the evidence on record, it is found that the

Pw3 is said to be an eye witness to the offence, Pws 4 and 5 who are panchayathdars for scene of offences, by the Pw6 /I.O did not support the case of the prosecution. The Pw3 state that he do not know what happened on that day.

11)The Ex.P1/report dated 15.06.2018 was marked through Pw.1, but he is not a signatory to that. In fact the wife of Pw.1/Laxmi is the complainant.

12)The Ex.P1 reveals that they have constructed a cattle shed and bathroom in the vacant site in front of their home. Their neibhour

Gugoloth Rekya, used to abuse them on every day claiming that site belongs to them. On 13.06.2018 at about 11.00 a.m., the sons, wife and daughter-in-law of Rekya/Gugloth Dayakar, Seenu, Boori and

Anusha, all together pushed her, due to which she sustained injury to her hand, beat her husband with a stone and caused to ran the bike over him. On that day came to P.S. gave report and went to hospital, again today afternoon 2.00 p.m., demolished the bathroom, seeking

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necessary action against them as she was in hospital, today giving the application/report.

13) There is no complaint in police station on 13.06.2018 as mentioned in the report/Ex.P1. It is clear from the report/Ex.P1, the accused beat the Lw.1 and Pw.1 on 13.06.2018 only and they have demolished the bathroom on 15.06.2018. There is no whisper by the

Pw.6 as to lodging of complaint by the Lw.1 or Pw.1 on 13.06.2018.

14) The wound certificate of Lw.1, she sustained fracture Injuries to right forearm, but she did not mention in her report/Ex.P1 or her statement to the Pw.6, but she sustained fracture to her right forearm. If really she sustained such a fracture she could be in the hospital and the duty doctor could have been informed to the police, but it was not happened. On the other hand the statement of Lw.1 and also report/Ex.P1 reveals, when the accused pushed her she fell on the ground and sustained injury to her hand, but she did not state that she fell on the stones and sustained fracture as found by the

I.O./Pw.6 and mentioned in the charge sheet.

15)The Pw.1 in his evidence state, five years ago at about 11.00 a.m., the incident was occurred at his house, there was a quarrel between him and accused (as they are brothers) relating to land, on which he constructed a bathroom and the same was demolished by

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the accused. Thereafter, the accused abused him and destroyed his

T.V. after some time the accused came to Tea stall again abused them, A1 drove his bike over his foot and he sustained injuries on his left foot, thereafter he went to his fields, then they beat the Lw.1 and she sustained fracture on the right hand wrist. Till date the accused threatening him that they kill him for the said land, on 15th they went to police station and lodged complaint.

16)In fact the complaint lodged by the Lw.1. The evidence of Pw.1 is contrary to the contents of the report/Ex.P1. As per the report/Ex.P1 on 13.6.2018 at 11.30 a.m., the accused beat the Lw.1 and Pw.1 and on 15.06.2018 they have demolished the bath room.

The evidence of Pw.1 reveals that entire incident i.e., beating him and his wife Lw.1 and demolishing the bathroom were took place on the same day i.e., on 13.06.2018.

17)The evidence of Pw.1 clearly reveals that the accused abused him only at tea stall i.e., away from his home, the A1 drove his bike over his foot and he went to the fields. If really he sustained injuries on his foot, he could have been went to the hospital, but not to the

Agricultural fields and he never spoke that he went to the hospital, but the wound certificate/Ex.P7 reveals that he took treatment on 13.06.2018 at 2.10 p.m., and also the weapon is mentioned as a hands, so totally false.

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18) The evidence of Pw.1 also clearly reveals that he was not present while the accused beating the Lw.1. As per the Pw.1 the accused ran over his bike on his foot at Tea Stall, then he went to the fields, but the accused beat the Lw.1. It means, the accused beat the

LW.1 near the tea stall only, which is contrary to the contents of the report. Further, the Pw.1 never spoke that the Lw.1 admitted in the hospital either on 13.06.2018 or 15.06.2018. Therefore, the wound certificate of Lw.1 also false.

19) The Pw.6/I.O, did not obtain any photographs to the demolition of bathroom. Though no witness corroborated, the evidence of Pw.1 itself whisper any truth as to the occurrence of alleged offence.

Therefore, abusing the Pw.1 by the accused cannot be believed when the main allegations itself is not reliable, in these circumstances, the learned magistrate finding the accused guilty for the offences under

Sec.504 and 506 of IPC is grave error and thereby caused miscarriage of justice. In fact, section: 504 of IPC has no relevance to the circumstances of the alleged offence.

20) For the forgoing analysis, it is found that the prosecution is failed to prove the guilt of the accused beyond all reasonable doubt and the trial court could have been acquitted them, but erroneously convicted and sentenced them for the offences U/sec. 504 and 506 of

IPC, which cannot be sustainable.

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21) In the result, the criminal appeal is allowed and thereby the conviction and sentence against Appellants/accused No.2 to 5 is set aside and thereby acquitted the appellants/accused No.2 to 5 U/sec.

386 (b) (i) Cr.P.C for the offence U/sec. 504 and 506 of IPC.

The fine amount paid by the appellants/accused shall be returned to them.

The bail bonds if any of appellants/accused shall stand cancelled and the sureties are discharged after lapse of six months/sec. 437-A Cr.P.C.

Dictated to Stenographer Grade-I, transcribed by him,

corrected and pronounced by me on this the 17th day of April, 2025.

V Additional Sessions Judge,

Bodhan.

To The Judicial Magistrate of First Class, Bodhan.

Date:9-6-2022

Bodhan

AS.No.8 of 2023 1 of 11

IN THE COURT OF THE V ADDITIONAL DISTRICT JUDGE AT

BODHAN , NIZAMABAD DISTRICT

Present: Sri S.Ravi Kumar, V Additional District Judge, Bodhan,Nizamabad District.

Dated this the 21st day of April, 2025.

AS.No. 8 of 2023

Between :

Khaja, S/o Late K.Lingoji, aged 65 years,

Occupation: Business, R/o H.No.1-1-1287,...Appellant.

Rakasipet of Bodhan Town and Mandal, Nizamabad District.

And

Koyalkar Vittal, S/o Late K.Lingoji, Hindu, aged about 68 years, Occupation: Business, R/o H.No.1-1-1355, Rakasipet locality of Bodhan Town and Mandal, Nizamabad District.

..Respondent

This Appeal is preferred under Order: XLI Rule: 1 of the Code of Civil Procedure against the Judgment and Decree dated 20.03.2023 in OS.No.48 of 2015 passed by the learned Senior Civil

Judge, Bodhan.

OS.No. 48 of 2015

Between :

Koyalkar Vittal, S/o Late K.Lingoji, Hindu, aged about 55 years, Occupation: Business, R/o H.No.1-1-1355 (new) Rakasipet locality of

Bodhan Town and Mandal, Nizamabad District...Plaintiff

And

Khaja, S/op Late K.Lingoji, aged 60 years, Occupation: Business, R/o H.No.1-1-1287, Rakasipet of Bodhan Town and Mandal,

AS.No.8 of 2023 2 of 11

Nizamabad District.

..Defendant

This Appeal suit has come before me on this the2 4 th day of March, 2025 for final hearing in presence of Sri. C. Gopal Reddy, Advocate for the Appellant and Sri V.R. Desai, Advocate for resp ondent, having stood over for consideration till this day, this Court delivered the following:

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

1.The appellant is the defendant filed the appeal suit aggrieved by the judgment and decree dated 20.03.2023 in OS. No.48/2015 on the file of the Senior Civil Judge, Bodhan (the parties are referred as averred before trial court).

2. The facts that leads to this appeal suit:- (a) The plaintiff filed the Suit seeking perpetual injunction restraining the defendant, his men, agents, servants, henchmen, workmen, supporters, family members etc., from causing any sort of interference or obstruction with his peaceful possession and enjoyment over the suit schedule property and costs etc., claiming that he is the owner and possessor of the suit schedule property/house bearing municipal No.1-1-1355 (new) 1-1-1067, 1-1-909 (old), country tiled roofed, total area 149.72

Sq.Yards, plinth area 96.25 Sq.Yards at Rakasipet of Bodhan town, bounded by North: Municipal road, South: Combined lane and house of Sri Shaik Imam, East: House of Sri Gagnaiah, West: 50 feet wide

AS.No.8 of 2023 3 of 11

Municipal road.

(b)The defendant is his brother, their father K.Lingoji, was died on 17.10.1997, having several properties including the suit house. On 14.07.1998 the properties of Late Lingoji were partitioned among all the legal heirs in presence of their mother Smt. K.Laxmi Bai and acted upon. Himself and defendant took the possession of their respective shares. Their mother Laxmi Bai got the suit house as her share. Later, she gifted the same to him under a registered gift settlement deed dated 16.08.2004, his name was recorded as owner and possessor of the suit house in municipal record and he is paying property tax to the Municipality, Bodhan. Since the date of partition he is absolute owner, possessor and peacefully enjoying the suit house. The defendant is no way concerned with the possession or ownership of the suit house. The defendant several times tried to interfere with his peaceful possession over the suit house.

(c)On 14.08.2015 at 6.00 p.m., the defendant along with anti social elements came to the suit house and tried to dispossess him by forcefully entering into the suit house, but the same was resisted him with the help of neighbours while the defendant going back threatened him that he will come again at any time and dispossess him from the suit house. The defendant bent upon him to dispossess

AS.No.8 of 2023 4 of 11

him by hook or crook. He has no other alternative except to protect his lawful possession of the suit house by invoking the jurisdiction of this Court.

3. The defendant filed written statement denying the allegations in the plaint are not correct, false and baseless, while admitting the relation ship with each other and Lingoji and state that the suit is not maintainable. Further, state that plaintiff filed false suit by suppressing the real facts originally their great grand father

Koyalkar Hussain native of Banswada, shifted to Bodhan and died some decades back. Their father Lingoji, is son of said Koyalkar

Hussain who died in the year 1997 leaving behind him, his wife Laxmi bai, two daughters and 5 sons. The Laxma Bai died in the year 2011.

The plaintiff, himself, their sisters Laxmi Bai, Vitta Bai, and brothers

Vittal, Jaloji, Mohan, Srinivas are constitute Hindu Un- divided joint family, having ancestral joint Hindu properties derived from Late

Lingoji, situated at Someshwar Shivar, Banswada Mandal, they along with their sisters and brothers succeeded the said ancestral joint

Hindu properties after death of their parents Lingoji and Laxmi Bai.

(b)In fact, no partition took place as stated by the plaintiff on 14.07.1998, even an unregistered partition said to be made on 26.05.2015 between family members without including the co-sharers

AS.No.8 of 2023 5 of 11

i.e., sisters of the plaintiff cannot be looked into as per the Section: 6 of Hindu Succession (Amendment) Act 2005, unless it is registered one, therefore the suit schedule property is deemed to be joint family property.

(c)Admittedly, the suit schedule property is derived from Lingoji, after his death the property got transferred in the name of their mother without consent of other co-sharers, as such their mother is not competent to transfer or gift the suit schedule property to the plaintiff, as such the registered gift deed dated 16.08.2004 doc.

No.4527/2004 is not binding on him and other coparceners i.e., co- sharers, as such the plaintiff is not entitled for perpetual injunction.

(d)The plaintiff approached this court by suppressing real facts, misrepresented and filed this suit, as such the plaintiff approached with unclean hands, as such he is not entitled for perpetual injunction.

As the suit schedule property is joint family property, suit is bad for non joinder of necessary parties i.e., other co-sharers. In absence of other co-sharers the plaintiff is alone not entitled claim any relief against him, as such the suit is liable to be dismissed. The each co- owner is entitled to occupy the whole property in common with others, no one of them is entitled to exclusive possession of any particular part of property held in common.

AS.No.8 of 2023 6 of 11

(e) The unregistered partition dated 26.05.2015 upon which the plaintiff is relying upon and filed this suit is not maintainable in view of amendment to the section: 6 of the Hindu Succession (Amendment) Act 2005. The plaintiff taking undue advantage of temporary injunction/order of status quo, trying to dispossess him from the suit schedule property with the assistance of police and also filed criminal case against him vide. Cr.No.288/2015 under section:

448, 323 and 506 of IPC.

(f)The following properties are ancestral joint Hindu, undivided family properties: Nine items of agricultural properties total extent of

Ac.25-03 ½ guntas in Sambapur village sivar, Bhairapur Gram

Panchayath of Birkur mandal, Sameshwar village of Banswada

Mandal, Bellal Tharfa of Bodhan Mandal, and Lad Mavandi village sivar, Bodhan mandal and two open plots in Rakasipet of Bodhan town and four residential houses in Rakasipet of Bodhan town.

(g)In the circumstances stated above, the plaintiff is not entitled for perpetual injunction against him as the suit schedule property is ancestral, joint Hindu, undivided family property. The plaintiff has no exclusive right over the suit schedule property and the suit is barred by limitation. Prays to dismiss the suit.

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4. The following issues framed:- (1) Whether the suit schedule property is ancestral properties of plaintiff and defendant ?

(2) Whether Smt. K.Laxmi Bai i.e., the mother of plaintiff is entitled to gift the suit schedule property to the plaintiff under the registered gift settlement deed, dt: 16.08.2004 ?

3) Whether the suit schedule property is joint family property of the plaintiff and defendant ?

4) Whether the unregistered partition deed is maintainable in law?

5) Whether the plaintiff is entitled for permanent injunction?

6) To what relief?

5. As the children of defendant filed O.S.No.66/2015 seeking partition of 11 items of agricultural lands situated in the limits of

Bhairapur village sivar, Bellal Tharfa of Bodhan, Someshwar village of

Bansweada Mandal, Lad Mavandi village sivar of Bodhan mandal etc., two open plots situated at Rakasipet, Bodhan, four residential houses situated in Rakasipet, Bodhan, against the defendant, his brothers and their sisters as per the orders in I.A.No.358/2019 both suits were clubbed and evidence was recorded in O.S.No.66/2015.

6.During the trial, on behalf of the Plaintiff, the Pws.1 to 3, marked Exs.A1 to A21. On behalf of the defendant, Dws.1 to 3 and

Exs.B1 to B17 marked.

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7.Upon hearing the learned counsel for the plaintiff and defendant and considering the oral evidence and documents, the trial court decreed the suit with costs, restraining the defendant

NO.3/K.Khaja, his agents, men, etc., from interfering with house

No.1-1-1355, situated at Rakasipet at Bodhan town with a finding that the plaintiff is in possession of the suit schedule property.

8.Heard the learned Counsel for the Appellant and Respondent

No.1.

9.Now the Points for consideration is;

1) Whether the plaintiff is in possession and enjoyment over the suit schedule property by virtue as on the date of filing of the suit ?

FINDINGs:

10.Point No.1:

(a)The plaintiff and defendant in this suit O.S.No.48/2015 examined themselves as DW.1 and DW.2 respectively (evidence recorded in O.S.No.66/2015), though the defendant herein remained ex-parte in O.S.No.66 of 2016 and he gave evidence as Dw.2.

(b)The plaintiff’s claim is that there was a oral partition in the year 1998, wherein the suit schedule property fell to the share of their

AS.No.8 of 2023 9 of 11

mother Laxmi Bai, who inturn gifted the same to him under gift settlement deed doc.No.4527/2004 dated 16.08.2004/Ex.A1, since then he is in possession, got mutated his name in municipal records, paying taxes and earlier their brother Mohan (D5 in O.S.No.66/2015) filed a suit against all his family members including his mother in

O.S.No.61/2008 on the file of Senior Civil Judge’s Court, Bodhan and

the same was dismissed with a finding that already partitioned the properties.

(c)The defendant as a DW.2 admitted his son and daughter filed a suit for partition against him, other brothers and sisters. The suit schedule property is also subject matter of O.S.No.66/2015 which was filed by his children, claiming as their ancestral properties and joint possession, inherited from their father Lingoji, who died instate and his brother Mohan filed suit for partition on receipt of summons, he was not contested than understanding that he will get share in the partition an he came to know the suit was closed without deciding theirs shares with metes and bounds, but in his cross examination also admitted the same and he was not filed appeal against the judgment and decree in O.S.No.61/2008. Further, in his cross examination says that he do not know whether the his mother was defendant in O.S.No.61/2008 and his mother gifted the said house to the plaintiff and the house stood in the name of his father and the

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plaintiff got it in the name of mother and then brought the said gift without their knowledge.

(d) The Ex.B6/gift settlement deed dated 16.08.2014 clearly reveals that the suit suit schedule property was purchased by Lingoji under a registered sale deed, on his death the suit schedule property comes to her possession, since the donee is her eldest son with love and affection gifted the schedule property to him. The Ex.A7 judgment in O.S.No.61/2008 filed by the Koyalkar Mohan, who is brother of the plaintiff and defendant herein seeking partition of A, B,

C, D, E and F schedule properties into six shares and allot one such share and separate possession to him, wherein their mother Koyalkar

Laxmi Bai is the 1st defendant herein and all her sons defendants 2 to 5 and the plaintiff is also her son. After full fledged trial the suit was dismissed with a finding that the defendants have proved that there was a partition of the suit schedule properties on 14.07.1998 (in para

No.32 of the judgment). As such, the suit schedule property was fell to the share of their mother, as such she got absolute right to gift the same to the plaintiff, as such gift settlement deed under Ex.B6 is true and valid by virtue of the same, the plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of suit with absolute right and the defendant has no right at all to interfere.

As such, the trial court/the learned Senior Civil Judge rightly decreed

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the suit and it does not warrant in interfere by this court.

11. In the result, the Appeal Suit is dismissed with costs to the respondent.

Dictated to stenographer grade-I, transcribed by him, corrected and

pronounced by me in open Court, on this the 21st day of April, 2025.

V Additional District Judge, Bodhan.

Crl.A.17/2024 1 of 10

IN THE COURT OF THE V ADDITIONAL SESSIONS JUDGE, BODHAN.

Present: Sri S. Ravi Kumar, V Additional Sessions Judge, Bodhan.

Dated this the 17th day of April, 2025

Criminal Appeal No.17 of 2024

Between:

The state through Forest Range Officer, Varni represetned by Public Prosecutor, Nizamabad.

.... Appellant/complainant

and

A1. Luqman Affendi, S/o Ahmed Affendi, H.No 10-3-11 to 15, Okaz Complex, Block-A, 501, Pent House, Mehdipatnam, Humayunnagar Police Station, Asif Nagar, Hyderabad.

A2. Imran Affendi, S/o Ahmed Affendi, H.No. 10-3-14, Flat No 103,OkazComplex, Humayunnagar Police Station, Asif Nagar, Hyderabad.

A3. Md Sharuk Khan, S/o Md.Naseer Khan R/o H.No 2-72 Jakora (V) Caste, Mandal Varni, Nizamabad District. A4. Shaik Raaz Ahmed S/o Shaik Miya R/o Jakora (V), Mandal Varni. (Died)

A5. Md. Jameeluddin S/o Md Jahangir R/o Achanpally, Bodhan (died).

.. Respondents/Accused

Date:9-6-2022 ,

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Crl.A.17/2024 2 of 10

This Criminal appeal has come before me on 07.04.2025 for final hearing in presence of Addl. P.P. for the Appellant/complainant and Sri T.R.N. Jadhav, Advocate for the Respondents/accused and having stood over for consideration, till this day, this Court delivered the following:-

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

1)The appellant is the state represented by the FRO, Varni filed this Criminal Appeal under section: 378 (1) (a) of Cr.P.C.

aggrieved by the judgment dated 02.02.2024 in C.C.No. 650 of 2021 on the file of the I Addl. Judicial Magistrate of First Class,

Bodhan.

2) The brief facts of the case that leads to this appeal:- (a)

The Forest Range Officer, Varni/Pw.1 lodged a complaint stating that on 20.12.2020 at 5.00 a.m. the Pws 4 to 6 and their staff conducted search operation at new Affendi Rice mill, at Jakora village, caught the accused with licensed weapons/ two rifles with silencer, night vision binoculars, bullets etc. which used for hunting black naped Hare (lepus nigricollis) which is listed in schedule IV under the Wild life protection Act, 1972.

3)As per the evidence and details in the mobile phone of the accused, there was a photographs of killing black buck (Antilopecervicapra) which listed in Schedule-I of wild life protection Act clearly saying that the person is frequent wildlife offender, it was also noticed that the accused were in possession

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of night vision, binoculars/scopes. As per rules/law goggles, rifles scopes and opticals sights with night vision capability are restricted items, possession or trading of which by civilians without the permission of home ministry is punishable.

4)During the enquiry, the accused No. 1 to 5 revealed that they have hunted black naped Hare (lepus nigricollis) and recorded the statements of the accused before the witnesses. Further the photographs reveals hunting of black buck, which were photographed in the fields by posing in front of the dead animals, as trophies using the same rifle guns and saffari white vehicle bearing No. AP-29-AN-0001.

5)A case has been registered against the A1 to A5 vide POR No.

02/053 dt.20-12-2020 U case under sections: 9 r/w 2 (16), 39, 55 to 57 512 punishable U/sec. 51 of of the wild life (Protection Act 1972). The accused were arrested by 12 noon on 20-12-2020, intimated the same to their relatives.

6)The PME over the Carcass has been conducted, by Assistant director (VAH) Animal disease diagnostic laboratory, Kotagally,

Shivajinagar, Nizamabad, gave report that the Carcass belongs to black naped Hare (lepus nigricollis) and the death the Animal is due to the shots of bullets. After P.M.E, the Carcas has been

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disposed as per standard operation procedure/ burnt in presence of Veterinary Civil Assistant surgeon, Nizamabad and forest section officers I/C, Mosra, by conducting panchanama in presence of two independent punchas.

7)The piece of meat of carcass has been sent to the CCMB,

Hyderabad for identification of species, the CCMB, gave report identifying the meat belongs to black naped Hare (lepus nigricollis).

8)On enquiry, the A1 stated that he is staying at Hyderabad.

Accordingly, as per the simultaneous search by the Pw4 and

DFO, Hyderabad at his house, in H.No.12-02-422/104 Priya colony, Gudimalkapur, Hyderabad, found the meat in refrigerator, suspected to be of wild life and the same was identified to be Red Jungle Fowl ( Gallus gallus). The guns and rifles are in working condition and comes under purview of arms

Act.

(b) The learned I Addl. Judicial Magistrate of First class, Bodhan, took cognizance for the offence under section: 9, 39 r/w 51 of the

WLPA. On appearance of accused NO.1 to 5, furnished the copies of the documents of the case as required Under section: 207 of

Cr.PC., the case against the accused NO.4 abated on account his

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death. The A1 to 3 and A5 examined U/sec. 239 Cr.P.C, charge framed for the offence under section: 9, 39 r/w 51 of the WLPA, read over and explained to the accused NO.1 to 3, 5, for which they pleaded not guilty and claimed to be tried. Thereafter, the case against the A5 abated due to his death on 22-02-2023.

(c) The case against the accused No.4 and 5 abated due to his death.

(d) During the trial, the prosecution has examined Pws.1 to 12, marked Exs.P1 to P7 and Mos.1 to 23. The accused No.1 to 3 were examined under section: 313 of Cr.P.C, for which they denied as false and reported no defence.

(e) Upon hearing the learned Additional Public Prosecutor and defence counsel and considering the material on record the learned I Addl. Judicial Magistrate of First Class, Bodhan, the accused NO.1 to 3 found not guilty and acquitted the accused

U/sec. 248 (1) Cr.PC. for the offence U/sec. 9, 39 r/w 51 of the

WLPA, with a finding that the prosecution has failed to establish the connection of the accused No.1 to 5 to the alleged crime beyond a reasonable doubt, thereby entitling them to an acquittal.

9) Heard the learned Addl. P.P for appellants and the counsel for respondents No. 1 to 3. (In fact the case against A4 and A5 was

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abated due to their death before commencing the evidence

before the trial court still this appeal filed against the

respondents No. 1 to 5/ A1 to A5).

10) Now the point for consideration is whether the trial court has committed any error in acquitting the respondents/accused for the offence punishable under section: 9, 39 r/w 51 of the wild life (protection) Act, 1972.

a). The learned Addl.P.P for the appellant submits that the learned

Magistrate ignored the statements/confession of A1 to A5, which

is admissible as the forest officials are not police. As per Sec. 57 of wild life (protection Act) the presumption is that the accused has committed the offence until contrary is proved. The burden is accused, to prove that they did not commit the offence. The Pw4 is empowered to do investigation into the case. The evidence on record clearly proves that the accused were hunted the black naped Hare (lepus nigricollis) but the learned Magistrate erroneously acquitted them. The night vision binoculars are prohibited and its possession or trade with out permission of home ministry is liable to be punish, but the trial court, ignored the same.

b). On the other hand the counsel for Respondents submits that the learned Magistrate rightly acquitted the respondents/accused as their confession was not proved, the entire evidence on record

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clearly establishes that the respondent/accused were falsely implicated. The prosecution is failed to prove that the binoculars is nigh vision by examining the an expert. Therefore, the trial court did right in not confiscating the same to state.

c). The evidence of Pw4 is that he along with Pw5, 6 and 7 raided the

Rice mill at Jakora found the weapons and also the dead body of un-skined black naped Hare (lepus nigricollis). On enquiry the accused confessed the offence, prepared a spot panchanama and seized the weapons and ammunition , handed over the same to the DFO, at Nizamabad for further action.

d).The other also followed the Pw4, as if the Pw4 did the entire search and seizure and they were present along with him, but non of them spoke about the evidence in the mobile of accused, as to hunting of black buck and Pw4 searching the house of the

A1, at Hyderabad, found the meat and the same certified by

CCMB the meat of Red Jungle Fowl ( Gallus gallus) and there is no documentary proof as to certification of CCMB, as to the meat of Red Jungle Fowl ( Gallus gallus) and also black naped Hare (lepus nigricollis) as spoke by the Pw4.

e).Though, the Pws 1 and 2 did not support the spot panchanama/Ex.P4, in fact, it reveals the Pw4 found only the

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meat of forest rabbit but not the carcass of forest rabbit dis-skied with out head, as such the evidence of Pw11, who conducted

P.M.E over the carcass of dis-skined dead forest rabbit seized by the Pw4 and his team in the premises of the accused is false and also the evidence of witnesses who disposed of the said dead body. Further, there is no proof of bullets present in the dead body of the said forest rabbit, while the Pw1 conducting the

P.M.E. Therefore, the testimony of Pw7 and 8, as to the conducting panchanama to the dead animal is also false.

f).When the spot Panchanama/Ex.P4 clearly reveals that the Pw4 and his team seized only meat, the Pw11 conducting P.M.E over the carcass of black naped Hare (lepus nigricollis) etc, is false and doubt raises about the entire case itself.

g).As per the Pw4,, they took the spot panchanama, the material seized including ammunition, accused were handed over to the

DFO, in his office at Nizamabad, who in-turn recorded the statements/confession of each accused, which are available in the record but not marked before the trial court. The DFO, who recorded the statements/confessions of the accused was not examined by the prosecution.

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h).In view of the above, the evidence of Pw9, 10 as to hand overing the accused, arms and ammunition along with the dead black naped hare handing over to the FRO, Varni is false. When a meat only, seized in the premises of the accused as per spot panchanama/ Ex.P4, the dead body of black naped Hare (lepus nigricollis) handing over to the FRO does not arise.

i).Over all the evidence of all the witnesses, as to the seizure and dealing with the dead body of the dis-skined black naped Hare (lepus nigricollis) with out head is false I.e the Pw4 did not found the carcass of dis-skined black naped Hare (lepus nigricollis) in the premises of the accused. Therefore, the entire case of prosecution is doubt full.

j).No doubt, the night vision Goggles/ binoculars is prohibited by the Home ministry and its possession or trade with out permission of home ministry is punishable, but as pointed out by the defence/ counsel for respondents, that the prosecution is fails to prove, that the binoculars seized from the premises of the accused, is comes under that purview by examining an expert.

Therefore, the prosecution is failed to prove Goggle/binocular seized from the premises of the accused is having night vision.

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k).For the forgoing reasons, it is found the learned Magistrate, was not committed any error in acquitting the respondents/accused.

Therefore, there is no merits in the appeal and it is liable to be dismissed.

11) In the result, the criminal appeal is dismissed.

Dictated to Stenographer Grade-I, transcribed by him, corrected

and pronounced by me on this the 17th day of April, 2025.

V Additional Sessions Judge,

Bodhan.

To The I Addl. Judicial Magistrate of First Class, Bodhan.

Date:9-6-2022 ,

Bodhan