Smt. Sriripurapu Sree Devi

IN THE COURT OF VII ADDITIONAL DISTRICT JUDGE:

(FAMILY COURT), WEST GODAVARI AT ELURU.

PRESENT: Smt.SIRIPURAPU SREEDEVI, VII Additional District Judge, (Family Court) West Godavari, Eluru.

Monday, the 2nd day of April, 2018.

ORIGINAL SUIT No.27 of 2010

BETWEEN: Bobba Subba Rao …Plaintiff...

And

1. Bobba Rama Rao

2. Obilaneni Lakshmi Prasanna Kumari

3. Bobba Gopala Krishna Murthy

4. Bobba Venkateswara Rao(died)

5. Bobba Chandra Rao

6. Bobba Savitry

7. Nadella Vijayalakshmi

8. Bobba Nageswara Rao

9. Bobba Seshagiri Rao (Defendants 6 to 9 are added as per the orders of This court in I.A.No.1101/2017 dt. 20­11­2017) … Defendants...

This suit is coming on 20­03­2018 in the presence of

Smt.Y.Nirmala Devi, Advocate, for the plaintiff and of Sri.M.Suryanarayana,

Advocate for 1 st defendant, Sri.E.Srinivasa Babu, Advocate for 2 nd defendant,  4th defendant died and the defendants 3, 5 to 9 are having been called absent, set exparte and the matter having stood over for consideration till this day, this Court delivered the following:­

J U D G M E N T

The plaintiff filed the suit against the defendant 1 to 5 seeking the relief of partition of the schedule properties after cancelling the registered partition deed and settlement deed dt. 17­08­2009 and some other reliefs and during the course of trial defendants 6 to 9 were brought on record on account of demise of 4th defendant being his legal representatives as per the orders of this court in I.A.No.1101/2017 dt. 20­11­2017 and the brief case of the plaintiff is as follows:­

One Bobba Veeraswamy and his four sons i.e., plaintiff and defendants 3 to 5 got partitioned their joint family properties on 02­10­1957 who were 2 allotted Ac.8.13 cents of land, Ac.14.20 cents of land, Ac.13.59 cents of land,

Ac.15.00 cents of land and Ac.14.00 cents of land respectively through the partition deed dt. 02­10­1957. After the demise of father of plaintiff and defendants 3 to 5 the share that was allotted to Bobba Veeraswamy i.e.,

Ac.8.13 cents of land was divided among plaintiff and his three brothers and accordingly, the plaintiff got Ac.2.50 cents of land towards his share in the property covered by R.S.No.43/2B. In the year, 1978, the plaintiff purchased an extent of Ac.1.42 cents of land in R.S.No.55/3 from his brother/D3 and

Ac.0.75 cents of land in R.S.No.7/2 from one Gangulu Devaiah. Therefore, the joint family of plaintiff and defendants 1 and 2 got Ac.19.30 cents of land as shown in plaint ‘A’ schedule. The plaintiff and defendants 3 to 5 got partitioned Ac.0.50 cents of house site which consists of a tiled house having four portions and each got Ac.0.12 ½ cents of land with a portion of tiled house. In the year, 1996, the plaintiff orally purchased Ac.0.12 ½ cents of land from 4th defendant along with portion of tiled house and since then the said property is in joint possession of plaintiff’s joint family. The plaintiff developed the house site by constructing a terraced house which is now in an extent of Ac.0.25 cents of house site and thereby it contains tiled house and terraced house which has to be partitioned among the plaintiff and defendants 1 and 2 and it is shown as ‘B’ schedule property. The father of plaintiff and defendants 3 to 5 left Ac.5.10 cents of Mango garden covered by R.S.No.178 situated at Ayyavaram Village, which is undivided and which shall be partitioned among plaintiff and defendants 3 to 5, which is in their possession and it is shown as ‘C' schedule.

The 1st defendant filed a suit in O.S.No.241/2009 on the file of Additional

Senior Civil Judge, Eluru, seeking partition of the joint family properties

among the plaintiff, 1st defendant and his minor son who failed to add the 2nd defendant though she was shown as a party for cancellation of settlement deeds entered in between plaintiff, his wife and 2nd defendant herein. It is 3 further contended that the 1st defendant failed to pray for partition of all joint family properties and also shown his minor son erroneously as if he gets a share. The plaintiff, 1st defendant and 2nd defendant partitioned the joint family properties under a registered partition deed dt.27­9­2009 during pendency of proceedings and it is not binding on the plaintiff as it was obtained by 1st defendant by making misrepresentation along with some others who are his henchmen saying that all of them will get equal share.

However, the plaintiff got only Ac.1.50 cents of land who was not allotted any money and nothing is there in his name. His signature was obtained in the

Registrar’s office in urgency during late hours on 17­08­2009 who is an illiterate. While filing written statement in O.S.No.241/2009 the plaintiff reserved his right of filing counter claim.

The 1st defendant obtained the signatures of plaintiff and 2nd defendant fraudulently on number of papers at the time of registration of partition deed by misrepresenting that he is obtaining the signatures on cancellation deed and partition deed. In fact, he obtained the signatures of plaintiff on some settlement deeds though the plaintiff never intended to settle Ac.1.50 cents of land to 1st defendant which was allotted towards his share by an unequal partition deed dt. 17­08­2009. Plaintiff never intended to settle item No.6 of plaint ‘A’ schedule property in favour of 1st defendant. After the execution of partition deed the defendants 1 and 2 forcibly taken possession of lands as per unequal shares allotted in partition deed. The plaintiff purchased tractor and trailer and TVS Star City Motorcycle with joint family funds shown in plaint ‘D' schedule.

The plaintiff orally purchased Ac.0.12 ½ cents of land from 4th defendant in addition to having Ac.0.12 ½ cents which was allotted towards his share from out of Ac.0.50 cents of house site with a tiled house having four portions who was allotted one portion of tiled house in an extent of Ac.0.12 ½ cents of land. The plaintiff prays the court to declare his title in respect of Ac.0.12 ½ 4 cents alone as shown in plaint ‘E’ schedule. Therefore, the plaintiff prayed the court to cancel the registered partition deed dt. 17­08­2009 and to partition plaint ‘A’, ‘B’ and ‘D' schedule properties into three equal shares and to allot one such share to him and to divide ‘C' schedule among himself and

Defendants 3 to 5 into four equal shares and to allot one such share to him, to declare his title in respect of plaint ‘E’ schedule and to cancel the settlement deed dt.17­08­2008.

2.The 1st defendant filed written statement praying the court to dismiss the suit by denying the averments made in the plaint specifically and the brief contents of it are as follows:

It is mainly contended that the suit is not maintainable as the plaintiff has not come to the court with clean hands. The 1st defendant originally filed the suit in O.S.No.241/2009 claiming partition of the schedule properties and for cancellation of two fictious settlement deeds fraudulently obtained by the wife of plaintiff and his daughter i.e, the 2nd defendant dt.06­05­2009 by dominating the plaintiff herein who is the 1st defendant in O.S.No.241/2009 and also for permanent injunction from alienating the remaining ‘C' schedule properties. During the pendency of the said suit the elders intervened and by taking into consideration the pleadings of both parties in O.S.No.241/2009 and on the ground that other properties are not shown in the above suit, resolved the disputes among the family members of plaintiff, defendants 1 and 2, the wife of plaintiff Bobba Subba Lakshmi. The plaintiff and his family members effected partition of their joint family properties under registered partition dt. 17­08­2009 andalso by executing three settlement deeds among family members on the same day. The 3rd defendant executed document

No.3309/2009 in favour of plaintiff and his wife viz., Subbalakshmi in respect of Ac.1.12 cents of land, the 2nd defendant executed document No. 3310/2009 in favour of 1st defendant and his mother –Subba Lakshmi in respect of

Ac.0.17 cents of land and the plaintiff executed registered settlement deed in 5 favour of 1st defendant in respect of Ac.1.50 cents of land in R.S.No. 43/2B of

Gundampalli Village by keeping life interest for himself and his wife while conferring vested reminder in favour of 1st defendant without touching Ac.2.00 cents of lands stands in the name of 2nd defendant.

The parties to the registered documents specifically agreed about the terms and conditions and also about the properties allotted to each of them towards their share and they were reduced into writing by resolving their disputes. In the registered partition deed dt. 17­08­2009 it is specifically mentioned that the plaintiff has no difficulty to maintain himself as he possessed huge amounts of joint family funds and as he has been doing money lending business for which the 1st defendant did not ask for account.

Out of the amounts advanced, the plaintiff advanced some amounts to his daughter/2nd defendant for construction of various houses in her village and also to purchase landed properties and house sites at Annappanenivarigudem and hence, by keeping future interest of their children i.e., defendants 1 and 2, the plaintiff had taken lesser extent of landed property for himself i.e.,

Ac.5.00 cents of land and had forgotten about their maintenance during their life time and thus, he was allotted Ac.1.29 cents of land by a separate registered settlement deed executed by 2nd defendant besides allotting Ac.2.00 cents of land covered by document Nos. 6720 and 1260/1994 dt. 09­05­1994, which was purchased by the father of 1stdefendant from Kamma

Swarooparani from out of joint family funds in the name of his daughter/2nd defendant before her marriage. All the four documents i.e., partition deed, three registered settlement deeds have been executed among the parties voluntarily on 17­08­2009 and the plaintiff filed frivolous suit seeking repartition of joint family properties and for cancellation of registered documents though the plaintiff and 2nd defendant cannot go back to their terms and conditions as per Sec.91 and 92 of Indian Evidence Act. The 1st defendant could not show 'C' schedule property covered by R.S.No.178 which 6 was purchased by his father, in the earlier suit i.e., in O.S.No.241/2009. The 'B' schedule property was given and allotted to the 1st defendant at the time of settlement and TVS motorcycle was allotted to the plaintiff by the elders, though the tractor has been in custody of 1st defendant including landed properties which were shown in 'B' schedule covered by the partition deed

dt. 17­08­2009. Presently, there is no jointness in respect of the properties

covered by the partition deed dt. 17­08­2009. As per the advise given by the elders, 'E' schedule property was agreed to be divided equally by the plaintiff and 1st defendant for which they agreed to execute a separate registered document and the 1st defendant reposed confidence in respect of settlement made by the elders. So far, the plaintiff did not hand over C­book and license relating to the tractor of 1st defendant. Since, the 1st defendant has been insisting the plaintiff to give C­book and license pertaining to 'D' schedule tractor and also has been insisting to mutate the electrical service connection attached to Ac.6.66 cents, the plaintiff in collusion with his wife and 2nd defendant filed this suit and also foisted criminal case against the 1st defendant and his father­in­law and others so as to harass the 1st defendant.

The suit is bad for misjoinder of cause of action and non­joinder of necessary parties. 

 3.The 2nd defendant filed written statement and the contents of the written statement are replica to the pleadings filed by the plaintiff. The 3rd defendant remained exparte as per the docket order dt. 09­07­2010. 5th defendant remained exparte as per the docket order dt. 10­06­2010. The defendants 6 to 9 remained exparte as per the docket order

dt. 14­02­2018. 

 4.Based on the pleadings my learned predecessor in office settled the following issues for trial:­ 

1) Whether the plaintiff is entitled for partition of schedule property and claim his share 1/3rd in 'A' schedule, 'B' schedule, 'D' schedule and 1/4th share in 'E' schedule as prayed for?

7

2) Whether the plaintiff is entitled to cancellation of registered partition deed dt. 17­08­2009?

3) To what relief? Based on the above pleadings the following additional issues are framed as this court feels that no prejudice would be caused to both parties to the suit as they have let in evidence on those lines.

(1) Whether the plaintiff is entitled to seek the relief of cancellation of settlement deed dt. 17­08­2009? (2) Whether the suit is bad for non­joinder of necessary parties who sought the relief of partition in respect of 'C' schedule property?

5.The plaintiff got himself examined as P.W.1 and Exs.A1 to A6 were exhibited on his behalf. The 1st defendant got himself examined as DW1 and the supporting witnesses were examined as D.Ws. 2 to 4 and no documents were exhibited on their behalf. The 2nd defendant got herself examined as DW5 and no documents were exhibited

6. Heard the learned counsel for the plaintiff and the defendants. 

7.As the finding on issue No.1 depends upon the findings on issue

No.2 and additional issue No.1, this court feels it proper to answer issue No.2 and additional issue No1 at the earliest which are interlinked as follows:

Issue No.2 and additional issue No.1: Both the learned counsel for the plaintiff and defendants 1 and 2 reaffirmed the respective contentions of both parties to the proceedings during the course of their arguments in all material particulars. Both the plaintiff, 1st defendant and 2nd defendant as PW1, DW1 and DW5 reiterated their respective pleadings during the course of their evidence in all material particulars. The learned counsel for the plaintiff and 5th defendant argued that since the partition deed that was executed on 17­08­ 2009 relating to the joint family properties of plaintiff, defendants 1 and 2, shows that an unequal partition was effected and since the plaintiff questioned the 1st defendant for making misrepresentation at the time of registration of the schedule properties as if they were allotted equal shares and since the 1st defendant tried to murder the plaintiff, the plaintiff gave report to police which was registered as a case in S.C.No.447/2011, where the 1st defendant and others were convicted by the trial court. Under those 8 circumstances, the plaintiff filed the suit against the defendants 1 and 2 seeking cancellation of partition deed and settlement deed etc.

8.By way of reply, the learned counsel for the 1st defendant argued that as the plaintiff was having 15 to 20 lakhs in his possession which was acquired by him from out of joint family nucleus and as the plaintiff got some other properties in his name, at the instance of elders, the plaintiff agreed for the allotment of Ac.1.50 cents of land in his favour and as the 2nd defendant was already given Ac.3.00 cents of land at the time of her marriage towards

Pasupukukuma, she was allotted Ac.6.50 cents of land and 'B' schedule property covered by Ex.A1 was allotted towards his share besides arguing that

Ac.1.00 cents of land was given to the plaintiff to enjoy the usufruct. The counsel further argued that only basing on the gift settlement deeds executed by the plaintiff in favour of his wife and daughter, he agreed to take Ac.1.50 cents of land under Ex.A1 ­ partition deed and the question of making misrepresentation by the 1st defendant does not arise. He further argued that the 1st defendant failed to show 'C" schedule property in the suit filed by him earlier for partition i.e., in O.S.No.241/2009 besides arguing that the 2nd defendant executed Gift Settlement Deed in respect of Ac.0.17 cents of land in favour of 1st defendant and his mother. He also argued that the plaintiff executed registered settlement deed only in respect of Ac.1.50 cents of land covered by R.S.No.43/2B by reserving life interest in his favour and in favour of his wife while conferring vested reminder in favour of 1st defendant. The prayer of the plaintiff for cancellation of partition deed cannot be accepted as it was executed voluntarily basing on the family arrangement made before elders. The learned counsel for the 1st defendant further argued that the plaintiff got Ac.5.11 ½ cents of land in R.S.No.278/3, R.S.No.278/2 and

R.S.No.278/7 of K.Gokavaram Village in addition to the property that was allotted under Ex.A1 in his favour. He also argued that the plaintiff gave 9 sufficient property to 2nd defendant towards Sridhana. However,  PW1 stated at page No.5 of his cross­examination that he gave some of the property which he acquired personally and some of the property situated at Marampalli which he got from his father as Sridhana to 2nd defendant and the same was included in

Ex.A1 for the purpose of partition. 

9.The learned counsel for the 1st defendant further argued that had really the 1st defendant played fraud or coercion the plaintiff could have given report to police alleging that the 1stand 2nddefendants made misrepresentation and fraud against him in obtaining Ex.A1­partition deed.

10.In the instant case, the plaintiff stated in his evidence that there are some disputes between himself and 2nd defendant and Ac.3.00 cents of landed property is in the name of 2nd defendant which is situated at

Marampalli Village and he further stated that he did not execute any cancellation deed regarding the properties which are in the name of 2nd defendant. DW5 also stated in her evidence that subsequent to her marriage, her father executed a registered settlement deed in her favour by settling the property to her while admitting that on the date of Ex.A1, there are cordial relations in between herself, her brother and father. Though the learned counsel for the 1st defendant argued that as already some extent was settled in favour of 2nd defendant she was allotted the extent as shown in Ex.A1 at the instance of elders but unless and until the said document is filed before the court, it is not possible to know whether the said property is the self­acquired property of plaintiff or the joint family property of plaintiff. Therefore, no finding can be given with regard to the property that was settled in favour of 1st defendant by the plaintiff so as to infer that only to maintain equilibrium the 2nd defendant was allotted ‘C' schedule property as shown in Ex.A1­ partition deed. 

11.The recitals of Ex.A1­partitionn deed speak that 'A' schedule 10 property consisting Ac.1.50 cents of land covered by R.S.43/2B was allotted to the share of plaintiff and 'B' schedule property consisting Five items was allotted to the share of 1st defendant and 'C' schedule property was allotted to the share of 2nd defendant. The recitals of Ex.A1 do not indicate that plaintiff is having cash of 15 to 20 lakhs and due to which he agreed to receive Ac.1.50 cents of land. 'B' schedule shows that the 1st defendant was allotted Ac.6.60 cents of land in R.S.No.56/4, Ac.2.50 cents of land in R.S.No.43/2B, Ac.2.86 cents of land in R.S.No.55/3, Ac.0.55 cents of land in R.S.No.54/4 and

Ac.5.10 cents of land in R.S.No.178, whereas the 2nd defendant was allotted

Ac.2.69 cents of land covered by R.S.No.8/2, Ac.3.37 cents of land in

R.S.No.8/13 and Ac.0.75 cents of land in R.S.No. 7/2A. Therefore, the recitals of Ex.A1 clearly show that unequal partition was affected between the plaintiff,

D1 and D2 in respect of the joint family properties.

12.Coming to the evidence DW1 he stated that the plaintiff stated

before elders that he got cash and Ac.5.00 cents of land is enough for him

towards his share. He further stated that the plaintiff has been in possession and enjoyment of Ac.5.00 cents of land. He admitted that only Ac.1.50 cents of land was given to his father/plaintiff while contending that another

Ac.1.00 cents of land was given to him. He also stated that except the above referred properties no other properties are standing in the name of his father.

He also stated that the said Ac.1.00 cents of land was allotted to the share of 2nd defendant and that his father himself told the elders that he is in possession of hard cash. He denied the suggestion that when the plaintiff questioned about the unequal partition of the property, he had beaten him due to which the plaintiff sustained fracture on his head and he gave complaint against him. He further stated that his father himself told him that he has sufficient means to maintain himself and except that there is no other evidence. He denied the suggestion that Ex.A4­settlement deed dt. 17­08­2009 was obtained by misrepresenting the facts. He also denied the suggestion that 11 as per the recitals of Ex.A4 after the demise of plaintiff, the property shall be devolved upon himself and not upon his mother. The recitals of Ex.A4 show that the plaintiff executed the same in favour of 1st defendant on 17­08­2009 by conferring vested reminder upon 1st defendant in respect of the property covered by R.S.No.43/2B and they further show that plaintiff reserved life interest upon himself and on his demise the 1st defendant acquire absolute rights over the property covered by Ex.A4. Ex.A4 was obtained on the same date of Ex.A1­partition deed. The execution of Ex.A4 on the very same date of

Ex.A1 creates any amount of doubt and it shows that the plaintiff never intended to execute the same by conferring vested remainder in favour of 1st defendant. The property covered by Ex.A4 was allotted to the share of plaintiff subsequent to the demise of father of plaintiff ­Bobba Veera Swamy and therefore, the plaintiff cannot execute gift settlement deed in favour of 1st defendant by conferring vested interest in his favour as it is the joint family property of plaintiff, D1 and D2. The document itself is invalid as the plaintiff cannot transfer the joint right of other coparceners and therefore, Ex.A4 ­settlement deed is invalid.

13.The 1st defendant examined the elders as D.Ws. 2 and 3, who stated in one voice that they acted as elders with regard to the dispute that arose in between the plaintiff and the defendants and that the plaintiff informed them that he is in possession of cash of 15 to 30 lakhs as Kartha of joint family. They further stated that the plaintiff agreed in their presence that he will bear the registration charges but the father­in­law of 1st defendant viz.,

Kamma Rama Chandra Rao and others incurred expenses. In the cross­ examination DW2 stated that on 17­08­2009 he did not act as an attesting witness when the plaintiff and 1st defendant executed a document. He further stated that he is not in possession of any written document to show that the plaintiff holds Rs.25,00,000/­ of cash. He also stated that originally the plaintiff possessed more than Ac.23.00 cents of land and under partition he got 12 only Ac.4.50 cents of land and 1st defendant got Ac.11.00 cents of land while 2nd defendant got Ac.7.00 cents of land. He further stated that the plaintiff got lesser extent of land and so, he filed the present suit. He also stated that 1st defendant did not work for 2nd defendant like a slave as mentioned in his chief­ examination. He denied the suggestion that due to old age the plaintiff could not go through the documents and signed on them under the impression that the documents were prepared as per his instructions. DW3 stated in his cross­ examination that there is no documentary proof to show that the plaintiff possessed 25 to 30 lakhs of rupees on the date of Ex.A1. He further stated that under Ex.A1, the plaintiff was permitted to enjoy Ac.6.00 cents of land and on his demise the said property devolves upon defendants 1 and 2. The evidence of DW3 proved that the partition covered by Ex.A1 was not affected in accordance with the terms of settlement entered by the parties during the course of mediation made by the elders. 

14.DW4 is a third party to the proceedings who stated that at the instance of plaintiff, village elders and family members of plaintiff, a family arrangement was made and he advised the plaintiff to go to Registrar's office and to get the partition deed registered as per the terms and conditions. He admitted that the partition which has taken place among the plaintiff, defendants 1 and 2 is unequal. He further admitted that he cannot say whether the terms of family arrangement are reflected in Ex.A1­partition deed.

He also admitted that the plaintiff informed that he will take Ac.6.50 cents of land while the 1st defendant agreed to take Ac.8.00 cents of land and the 2nd defendant will be allotted Ac.6.60 cents of land. Therefore, the supporting evidence let in by the 1st defendant proved that the partition was not effected in accordance with the terms of family arrangement affected before elders as the elders themselves speak that the plaintiff agreed to take Ac.6.50 cents of land according to DW4 and none of the elders deposed that the plaintiff agreed to take only Ac.1.50 cents of land. Therefore, both the documents i.e., Exs.A1 13 and A4 are liable to be cancelled as there is misrepresentation regarding the terms of Ex.A1­ partition deed and Ex.A4­settlement deed and they do not bind the plaintiff, 1st defendant and 2nd defendant and they are liable to be cancelled. Accordingly, issue No.2 and Additional issue No.1 are answered in favour of plaintiff holding that Ex.A1­partition deed and Ex.A4­settlement deed are liable to be cancelled and they do not bind the plaintiff and the defendants.

15.Additional issue No.2:  The learned counsel for the plaintiff argued that the plaintiff has shown defendants 3 to 5 who are his brothers while seeking partition in respect of ‘C' schedule. On account of demise of 4th defendant, defendants 6 to 9 were brought on record.

16.By way of reply, the learned counsel for 1st defendant argued that the suit is bad for non­joinder of necessary parties as the plaintiff failed to show his sisters as parties to the suit and therefore, the suit is liable to be dismissed. During the course of evidence, plaintiff as PW1 stated that the name of his elder sister is Yedupuganti Damayanthi and his younger sister is

Guttikonda Saraswathi. He further stated that the marriages of his elder sister and younger sister were performed long back during the life time of his father. 

17.The plaintiff sought the relief of partition of plaint 'C' schedule property into four equal shares and for allotment of one such share to him alleging that while partitioning the properties of Veeraswamy family among

Veeraswamy and his sons i.e., the plaintiff, defendants 3 to 5, the said

Veeraswamy left Ac.5.10 cents of Mango garden undivided which is covered by

R.S.No. 178 as shown in 'C' schedule. As rightly argued by the learned counsel for the 1st defendant, the plaintiff has to show his sisters as parties to the suit in respect of the property covered by 'C' schedule as the sisters of plaintiff are entitled to have equal share on par with plaintiff and his three brothers i.e., defendants 3 to 5. Though, the learned counsel for the plaintiff argued that they are not coparceners since the partition was affected in the year, 1957, 14 still, there is no basis for her contention. When the plaintiff sought the relief of partition in respect of 'C' schedule property, the sisters of plaintiff and defendants 3 to 5 are entitled to have equal share on par with plaintiff by the application of notional partition as the father of plaintiff and defendants 3 to 5 died intestate in respect of ‘C' schedule property. Therefore, the plaintiff is not entitled to get the relief of partition in respect of 'C' schedule property for non­ joinder of necessary parties as pleaded by 1st defendant as no partition can be granted in the absence of necessary parties. Even Ex.A3 ­sale deed which was executed in favour of father of plaintiff viz., Veeraswamy shows that the father of plaintiff acquired 'C' schedule property covered by R.S.No.178 consisting

Ac.5.10 cents of land from his vendor viz., Kotagiri Rajalamma on 12­07­1960 and therefore, it is clear that 'C' schedule property is the joint family property of father of plaintiff viz., Veeraswamy which shall be allotted equally to his daughters and sons as per notional partition. Accordingly, additional issue

No.2 is answered against the plaintiff holding that the relief claimed by the plaintiff for partition in respect of 'C' schedule property cannot be granted for non­joinder of necessary parties though the suit is maintainable in respect of other properties which are the separate properties of plaintiff.

18. Issue No.1: Since, issue No.2 and additional issue No.1 are answered in favour of plaintiff, the plaintiff is entitled to get the relief of partition of the properties provided he proves that the schedule properties are his separate properties and his self­acquired properties acquired by him from joint family nucleus. 

19.The plaintiff acquired item Nos. 1 to 5 of plaint 'A' schedule under

Ex.A5 ­partition deed dt. 02­10­1957, which was affected in between himself, his brothers and his father. The evidence of plaintiff further shows that on the demise of his father the share of property that was allotted to his father covered by R.S.No.43/2B was divided among himself and his three brothers and 15

Ac.2.50 cents of land was allotted to his share, which is shown as item No.6.

Even Ex.A4 also shows that the father of the plaintiff was allotted share in the property covered by R.S.No.43/2. 

20.The evidence of plaintiff further shows that he purchased Ac.0.75 cents of land covered by R.S.No.7/2 from Gangulu Devaiah which is shown as item No.7 of plaint 'A' schedule property. Ex.A5 ­pattadhar pass book shows that the plaintiff acquired Ac.0.75 cents of land in R.S.No.7/2 and therefore, the plaintiff is entitled to seek the relief of partition of plaint 'A' schedule properties. 

21.The evidence of PW1 further shows that the plaintiff and defendants 3 to 5 partitioned Ac.0.50 cents of house site with a tiled house having four potions and each got Ac.0.12 1/2 cents of land with a portion of tiled house and in the year, 1996, he purchased Ac.0.12 1/2 cents of land from the 4th defendant along with the portion of tiled house and that the plaintiff developed the house site by constructing a terraced house and now the house consists of terraced house and tiled house in an extent of Ac.0.25 cents of land as shown in 'B' schedule. 'B' schedule shows that it is the tiled house and terraced house bearing door No.1­97 situated in an extent of Ac.0.25 cents of land. 

22.The plaintiff sought the relief of partition in respect of 'B' schedule and declaration in respect of portion of 'B' schedule bearing door No.1­97. 

23.As per the evidence of plaintiff out of Ac.0.50 cents of house site consisting tiled house, he was allotted Ac.0.12 ½ cents of land with a portion of tiled house. Therefore, the plaintiff is entitled to seek the relief of partition in respect of Ac.0.12 ½ cents of land consisting tiled house but not for the total extent on his alleged contention that he has purchased Ac.0.12 ½ cents of land from 4th defendant orally.

24.The plaintiff sought the relief of declaration in respect of 'E' schedule property, which is part of 'B' schedule property by contending that at 16 about 18 years back he orally purchased Ac.0.12 1/2 cents of land from the 4th defendant along with tiled house. Except the oral evidence of plaintiff, there is no documentary proof in support of his claim and the plaintiff ought to have filed suit for specific performance on the ground of alleged oral sale seeking registration of 'E' schedule property in his name from the 4th defendant and therefore, he is not entitled to seek the relief of declaration in respect of 'E' schedule property.

25.'D' schedule property is a tractor and trailer bearing No.AP 16T 6570 and AP 16T 6571 and one TVS Star City Motorcycle bearing No.AP 37 1211. Both are movables and they cannot be divided among shareholders and the sale proceeds of both the vehicles shown in ‘D’ schedule are liable to be distributed among shareholders. It is not the case of 1st defendant that he purchased those two vehicles and admittedly, the two vehicles are standing in the name of plaintiff. Therefore, the plaintiff is entitled to proceed under

Partition Act in respect of his claim regarding 'D' schedule property.

Accordingly, issue No.1 is answered.

26.Issue No.3:­In the result, the suit is partly decreed with costs by ordering cancellation of partition deed dt. 17­08­2009 and settlement deed dt.

17­08­2009. A preliminary decree is passed by ordering partition of plaint 'A' schedule properties, Ac.0.12 1/2 cents of 'B' schedule property containing tiled house into three equal shares and by ordering allotment of each such share to the plaintiff, 1st defendant and 2nd defendant. The plaintiff is entitled to proceed under Partition Act in respect of 'D' schedule property. The rest of the suit claim is dismissed. The suit in respect of defendants 5 to 9 stands dismissed.

Office is directed to transmit the copy of decree to Sub­Registrar concerned informing the cancellation of registered partition deed and registered settlement deed dt.17­08­2009 for making necessary entries in the register concerned.

17

Typed to my dictation by the Personal Assistant directly on computer, corrected and pronounced by me in open Court, on this the 2 nd day of April, 2018.

VII ADDITIONAL DISTRICT JUDGE,

(FAMILY COURT)

WEST GODAVARI, ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PLAINTIFF: FOR DEFENDANTS:

P.W.1: Bobba Subba RaoDW1:Bobba Rama Rao

DW2:Ganji Kasi Viswanadham

DW3:Bobba Seshagiri Rao

DW4:Guttikonda Ramakrishna

DW5:Obillaneni Lakshmi Prasanna Kumari

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A­117­08­2009Partition Deed

Ex.A­2­­House tax receipts(6) and demand notices (10) relating to B­Schedule property

Ex.A­312­07­1960Sale deed relating to ‘C' schedule property

Ex.A­417­08­2009Settlement deed executed by the plaintiff in favour of 1st defendant Ex.A­502­10­1957Registration Extract of Registered Partition Deed.

Ex.A6­­Pattadar passbook No.E 421797 issued by MRO, Dwarakatirumala Patta No.387.

FOR DEFENDANTS:NIL

 VII ADJ.,

W.G. Eluru.

18

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE

WEST GODAVARI :: ELURU

PRESENT:- Smt.Siripurapu Sreedevi,

VII Additional District Judge,

W.G., Eluru,

Thursday, this the 29th day of March, 2018.

APPEAL SUIT No.52/2012

Between: 1.Varanasi Kameswara Rao 2.Chekuri Ravindra Rao

...Appellants/Defendant

s….

Vs.,

Sri Lakshmaneswaraswamy Devasthanam, S.Kondepadu, rep. by its Manager, Sri.K.Ram Goapala Rao

...Respondent/plaintiff...

On appeal filed against the decree and judgment dated 27-02- 2012 in O.S.No.226/2006, on the file of Senior Civil Judge’s Court,

Tadepalligudem.

Between:

Sri Lakshmaneswaraswamy Devasthanam, S.Kondepadu, rep. by its Manager, Sri.K.Ram Goapala Rao

...Plaintiff….

Vs.,

1..Varanasi Kameswara Rao 2.Chekuri Ravindra Rao

...Defendants...

This appeal is coming on 28-03-2018 for final hearing before me in the presence of Sri.K.Subrahmaneswara Swamy, Advocate for the Appellants and of Sri.P.P.C.Joshi, Advocate for Respondent and having stood over for consideration till this day, the Court delivered the following:

J U D G M EN T

The defendants are the appellants who preferred this appeal being aggrieved by the judgment and decree passed by the learned Senior Civil Judge, Tadepalligudem, in O.S.No.226/2006, dt.27.02.2012 against the plaintiff and the parties to the appeal 2 hereinafter will be referred as plaintiff and defendants as arrayed in the trial court and the brief case of plaintiff is as follows:

2.The plaintiff Sri Lakshmaneswaraswamy Devasthanam being represented by it’s Manager filed this suit seeking the relief of declaration that the sale deed executed by the 1st defendant in favour of 2nd defendant does not bind the plaintiff – temple and to direct the 2nd defendant to vacate the schedule property.

The plaintiff has been in possession and enjoyment of the plaint schedule property along with some other properties which were given to it. The plaintiff gave certain properties to some persons who attend

Nithya Dupa, Deepa, Nyvedyam and to some other persons who attend

Sangeetha Navuka. The persons who render service to the plaintiff – temple enjoy the produce of landed property by cultivating the same.

Similarly, the schedule property has been entrusted to those persons for the purpose of chanting Swasthivachakam who are entitled to enjoy the produce after attending the work that was entrusted to them.

Originally the schedule property was entrusted to the forefather of 1st defendant and later during the course of time it came to the hands of 1st defendant and as he was not discharging the functions, the temple- authority demanded him to perform the duties or to return the property to the temple. The Re-Settlement Register and the register being maintained U/Sec. 25 of Hindu Religious Endowments Act show the ownership of plaintiff over the schedule property. The 1st defendant had no right to sell the schedule property as his possession is permissive who sold away the same to the 2nd defendant for consideration of Rs.1,72,800/- on 30-10-2003 and the said transaction does not bind the plaintiff.

3

3.The 1st defendant filed written statement praying the court to dismiss the suit by denying the averments made in the plaint specifically and the brief contents of it are as follows:

It is mainly contended that the plaintiff is not entitled to seek the relief of declaration of title and for recovery of possession as this court has no territorial jurisdiction. The suit is barred by time. The plaintiff – temple has no locus standi to file the suit and there is no authorization to the Manager to represent the suit. A mere entry in revenue or endowment register does not confer title and those entries are not conclusive proof. The plaintiff cannot depend on the weakness of the case of the defendants. The suit is bad for non-joinder of proper and necessary parties. There is no devolution of property in favour of the father of 1st defendant for the purpose of Nithya Dupa, deepa,

Nyvedyam and Sangeetha Navuka etc., and the property was never entrusted to him by the temple. The 1st defendant came into possession of the schedule property by virtue of continuous uninterrupted possession of his father –Varanasi Venkata Surya Subba

Rao and neither the plaintiff nor any temple authorities questioned the enjoyment of the father of the 1st defendant over the schedule property.

Subsequent to the demise of father of 1st defendant on 14-08- 2001, the 1st defendant entered into the shoes of his father who was aged 19 years by the time of his father’s demise and there are latches on part of the plaintiff in maintaining the plaint schedule property. After lapse of so many years, the plaintiff-temple cannot take the law into its own hands particularly after the alienation of the schedule property by the 1st defendant in favour of 2nd defendant. The plaintiff –temple authorities got knowledge that after the demise of paternal 4 grandfather of 1st defendant, the entire properties possessed by him were settled among his five sons and six daughters by virtue of partition and thereby the 1st defendant got into possession of the schedule property in the year, 1957 or so. Knowledge on part of temple-authorities clearly proved that there is negligence on part of the plaintiff –temple. The father of 1st defendant perfected his title over the schedule property under adverse law. His possession is not a permissive possession. The sale deed executed by 1st defendant in favour of 2nd defendant is valid and it cannot be questioned. The father of 1st defendant executed a registered Will on 27-11-2000 in favour of 1st defendant in the presence of attestors and scribe which has been acted upon and the 1st defendant was in possession of the schedule property till it was alienated and the revenue authorities issued tax receipts in favour of father of 1st defendant.

During the life time of father of 1st defendant, the schedule property was entrusted to Mutyala Venkata Rama Subbarao and

Suranna and as they failed to vacate, the father of 1st defendant filed

ATC No.36/1998 and the learned Special Officer directed the respondents to vacate the property as per it’s order dt. 27-11-2000.

The father of 1st defendant filed E.P.No.3/2001 in ATC 36/1998 and obtained delivery of possession of the schedule property. The suit is barred by res judicata. Till his last breath the father of 1st defendant was in continuous possession and the 1st defendant rightly alienated the property.

4.The 2nd defendant filed written statement praying the court to dismiss the suit by denying the averments made in the plaint specifically and the brief contents of it are as follows:

The 2nd defendant mainly contended that he is a bonafide 5 purchaser. He further contended that the revenue authorities issued pattadhar pass book and as such he has been in possession and enjoyment of the same as a rightful owner. The remaining contents of written statement of 2nd defendant are replica to the contents of written statement filed by the 1st defendant and to avoid repetition, the same are not discussed in detail.

5.Based on the pleadings, the learned Trial Court framed the following issues for trial:

(i).Whether the plaintiff is entitled to the relief of declaration and possession as prayed for?

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

(iii)Whether the suit is barred by principles of resjudicata?

(iv) Whether the 1st defendant has got title and right over the plaint schedule property to alienate the same to the 2nd defendant?

(v) Whether the registered Will dt. 27-11-2000 executed by father of 1st defendant is valid?

(vi)To what relief?

6.The Managers of plaintiff-temple got themselves examined as PW1 and PW4 and the supporting witnesses were examined as PW2,

PW3, PW5 to PW9 and exhibited Exs.A1 to A3 and Exs.X1 to X3. The defendants got themselves examined as D.Ws. 1 and 2 and the supporting witnesses were examined as D.Ws. 3 to 5 and Exs.B1 to B8 were exhibited.

7.The learned Senior Civil Judge, Tadepalligudem, after considering the pleadings and evidence of both parties, decreed the suit on the premise that the plaintiff –temple is the owner of the schedule property and the plaintiff entrusted the same to the forefather of 1stdefendant for the purpose of reciting

Swasthivachakam, due to which the possession of the 1st defendant is permissive and that the 1st defendant without any right alienated the 6 schedule property in favour of 2nd defendant and thereby declared that the sale deed executed by 1st defendant in favour of 2nd defendant does not bind the plaintiff.

8.The appellants/defendants challenged the judgment of trial court on the following grounds.

The appellants mainly contended that the plaintiff has to prove it’s pleadings and should not depend upon the lacunas crept in the case of defendants. The Trial Court discussed the other issues only based on issue Nos.4 and 5. It is also contended that the plaintiff has not sought the relief of declaration of title and consequential recovery of possession and the Trial Court ought not to have numbered the suit due to inconsistency in para No.11. The appellants also contended that mere entries in revenue records are not sufficient to prove the title of the plaintiff and the burden lies upon the plaintiff to prove that as per it’s records a particular person originally used to chant

Swasthivachakam and that the 1st appellant was the original legal heir of the person to whom the property has been entrusted. It is further contended that since the 1st appellant did not chant Swasthivachakam, the plaintiff is not entitled to seek the relief of recovery of possession on that ground. It is also contended that the Trial Court should have seen that the plaintiff did not take steps under AP Inams Abolition Act to have Rythwaripatta U/Secs. 3 and 4 of the said Act in respect of schedule property. It is further contended that the Trial Court should not have drawn adverse inference basing on non-filing of partition deed of the year, 1957 and the suit is for mere possession and so the said document is not relevant as it is essential only when the issue is among the members of the family. The evidence of D.Ws. 1 to 5 is trustworthy and the evidence of P.Ws. 1 to 9 is quite inconsistent and 7

Exs.B1 to B8 proved the title of appellants. It is lastly contended that

Ex.X1 is a self-serving document and it does not show as to whom the property was given for chanting Swasthivachakam and Ex.X3 is only a register maintained in the ordinary course and it is not a title deed by itself.

9.Heard the learned counsel for the appellants and the respondent.

10. The learned counsel for the appellants mainly argued that after the demise of grandfather of the 1st defendant, his children got partitioned the properties possessed by him and the father of the 1st defendant came into possession of the schedule property who was in possession of the same uninterruptedly and by virtue of execution of registered Will by the father of 1st defendant, the 1st defendant became the absolute owner of the schedule property. The counsel further argued that the plaintiff failed to let in any evidence to show the name of the devotee who endowed the schedule property in favour of plaintiff and in the absence of any such evidence, it cannot be inferred that the schedule property is the property of plaintiff-temple, which in fact is the ancestral property of 1st defendant’s father. He further argued that the father of 1st defendant gave the schedule property under lease and when the tenants failed to vacate the same he filed ATC 36/1998, which clearly proved that the father of 1st defendant is the owner of the schedule property who filed

E.P.No.3/2001, for delivery of possession and obtained possession

through court from the tenants in the above referred ATC. The counsel further argued that the records produced by the plaintiff are self- serving and Ex.X3-register does not show as to whom originally the schedule property was given by the plaintiff to chant Swasthivachakam 8 in the temple and it does not show as to who endowed the property to the plaintiff – temple.

11.By way of reply the learned counsel for the plaintiff- temple/respondent argued that since about 200 years prior to filing of the suit, the property was endowed in favour of the plaintiff –temple and the Re-settlement register proved that the schedule property stands in the name of plaintiff –temple and the 1st defendant who came into possession of the schedule property for chanting

Swasthivachakam cannot style himself as the owner of the schedule property basing on the alleged Will said to have been executed by his father as the father of 1st defendant has no right to bequeath the schedule property and had really the contention of 1st defendant been true, certainly he could have filed the alleged partition deed to show that partition was effected among the children of his grandfather. He further argued that when the 1st defendant claims title over the schedule property, he must establish that it is the ancestral property of his father, whereas the plaintiff by placing Exs.X1 to X3 and other documents proved that the schedule property has been standing in the name of plaintiff – temple and the possession of the defendants over the schedule property is permissive. He also argued that the learned

Trial Court rightly decreed the suit by declaring that the sale deed executed by 1st defendant in favour of 2nd defendant does not bind the plaintiff besides ordering delivery of possession as the finding in ATC

No.36/1998 which was filed by the father of 1st defendant against third parties does not bind the plaintiff regarding it’s title over the schedule property.

12.Having heard the rival contentions of the learned counsel for both parties and on perusal of the material on record, the points 9 that arise for consideration are as follows:-

1.Whether the plaintiff –temple entrusted the schedule property to the forefather of the 1st defendant for chanting Swasthivachakam in the temple ?

2.Whether the possession of 1st defendant over the schedule property is permissive?

3.Whether the 1st defendant committed default in discharging his function by not chanting Swasthivachakam in plaintiff – temple?

4.Whether the sale deed executed by the 1st defendant in favour of 2nd defendant does not bind the plaintiff and consequently, the 2nd defendant is liable to deliver possession of the same to the plaintiff -temple?

5.Whether there are any grounds to interfere with the findings of the learned Senior Civil Judge, Tadepalligudem?

6.To what relief?

13.POINT No.1:- The Manager of plaintiff –temple as PW1 stated that the schedule property is one of the properties owned by the plaintiff and that it is being entrusted to the persons who chant

Swasthivachakam and thereby they are entitled for personal cultivation to enjoy the produce. He further stated that the Resettlement Register and the register maintained U/Sec. 25 of Hindu Religious and

Endowments Act proved the ownership of plaintiff –temple over the schedule property and the 1st defendant who is entitled to enjoy the schedule property after attending the duty of chanting

Swasthivachakam sold away the said property in favour of 2nd defendant instead of discharging his functions. The evidence of PW4 who worked as a Manager in the plaintiff –temple from 3-09-2004 to 24-09-2007 is almost replica to the evidence of PW1. PW4 stated that his predecessor filed the suit on behalf of plaintiff –temple as a

Manager. He further stated that he was permitted by Assistant

Commissioner of Endowments to file the suit. He also stated that their temple has given the schedule property to the forefather of 1st 10 defendant for chanting Swasthivachanam. He further stated that at the time of his joining in the year, 2004, the schedule property was sold away. Whereas PW1 stated that he does not know whether the 1st defendant gave the said property to one Muthyala Venkata Subbarao and Suranna under lease and that he does not know about the proceedings in ATC 36/1998. Both PWs.1 and 4 do not know the eviction proceedings initiated by the father of 1st defendant. PW1 stated that Swasthivachakam is a part of prayer besides stating that he does not know in whose name initially the schedule property was given at about sixty years ago. He also stated that for the past 30 years Swasthivachakam was not performed by 1st defendant, his father including his family members.

14.The plaintiff –temple examined PW3 who is the Mandal

Surveyor of Ganapavaram Mandal and through him Ex.X1-attested copy of FMB relating to survey No. 55 of S.Kondepadu Village, Ex.X2- attested copy of Re-settlement Register containing two sheets relating to Kondepadu, were exhibited. PW3 stated in his evidence that as per the revenue record R.S.No.55/2 stands in the name of

Lakshmaneswaraswamyvari Alayamulo Swasthivachakam. On perusal of Ex.X2 –Re-settlement Register it shows that the property covered by

R.S.No.55/2 stands in the name of Lakshmaneswaraswamyvari

Alayamulo Swasthivachakam.

15.PW3 stated that he cannot say the date as to when the entry was made in Re-settlement register. He further stated that he does not know whether the schedule property was delivered to 1st defendant by the court in execution proceedings. PW9 is the Junior

Assistant in the office of Endowments Department through whom

Ex.X3-attested copy of Property Register was exhibited. He stated that 11 the schedule property belongs to Endowments Department. He further stated that Ex.X3 bears the signature of their officials and also the seal of their office, while denying the suggestion that Ex.X3 was brought into existence and that it was in no way related to this case. Ex.X3-

Property Register Extract of plaintiff –temple was duly attested by the

Assistant Commissioner and it shows that the plaintiff –temple owns various properties and the schedule property which is covered by

Survey No.55/2 is one of the properties which is shown against

Sl.No.11 at Page No.4 and it shows that it is meant for chanting

Swasthivachakam. The total extent is shown as Ac.1.44 cents at Page

No.15 of Ex.X3. The said register extract also shows the descriptive particulars of gold ornaments possessed by the temple at Page No.10.

The remaining extent i.e., A c.2.83 cents covered by various other survey numbers is meant for rendering the service i.e., “Sangeetha

Navuka”. The said register is being maintained U/Sec.25 of

Endowments Act.

16.The 1st defendant as DW1 while reiterating his pleadings mainly contended that the plaintiff –temple being continuing their alleged activities might have got knowledge over the things going on in the schedule property. He further stated that there are latches on the part of the plaintiff in maintaining the schedule property besides stating that after lapse of several years the plaintiff –temple cannot take the law into their own hands besides stating that after the demise of his paternal grandfather the entire properties possessed by him were settled among his five sons and six daughters by virtue of partition effected in the year, 1957 and that his father perfected his title over the schedule property under adverse law. DW1 might have intended to say that his father perfected his title by way of adverse 12 possession. The learned counsel for the defendants argued that as the plaintiff failed to prove as to how it acquired title over the schedule property it is not entitled to seek the relief of recovery of possession and while arguing so, he relied upon the decision of Hon’ble Apex

Court held in between T.K.Mohammed Abubucker(Deceased)

Thr.L.Rs. and Others V. P.S.M.Ahmed Abdul Kharder and

others 1, wherein their Lordships of Hon’ble Apex Court held in the middle of para of ‘15’ as follows:

‘ the suit was liable to be dismissed as neither title of plaintiff nor previous possession of plaintiff, nor encroachment by defendants was made out.’

The learned counsel for appellants also relied upon similar legal position held in between Anil Chandra Paul Vs.Haramohan

Mahishya Das and others 2

The facts and circumstances of the above cases are not similar to the facts and circumstances of the present case on hand, and so they have no application to it.

The counsel for the defendants while referring to Sec.151 of A.P.Charitable and Hindu Religious Institutions and Endowments Act, argued that the Civil Court has no jurisdiction but there is no basis for his contention for the reason that the Civil court gets jurisdiction when the dispute relates to the title of the property.

17. DW1 further stated in his evidence that the plaintiff being the alleged owner has to put-forth his right over the schedule property independently besides stating that the plaintiff never entrusted the schedule property for the purpose of chanting Swasthivachakam. He further stated that he came into possession of the schedule property by virtue of his father’s right who was in an uninterrupted possession during his life time and that he entered into --------------------------------------------

1. AIR 2009 Supreme Court 2966

2. AIR 2016 (NOC) 440 (TRI.) .

13 the shoes of his father from the time of demise of his father dt. 14-08- 2001. He also stated in his evidence that he does not know about giving of property to the people for rendering services i.e., for rendering Nithya Doopa, Deepa, Nyvedyam, Swasthivachakam and

Sangeetha Navuka. He also stated that he does not know about the register being maintained by the temple while denying the suggestion that the schedule property was given to his forefather for rendering service to the temple. He further stated that other than the Will he has no other document to show his title besides saying that they have no record to prove their possession till the partition. He further stated that he does not know whether his father and grandfather used to chant

Swasthivachakam at the temple.

18.DW4 and DW5 who are the third parties to the proceedings stated that they cultivated the schedule property under the father of 1st defendant and also under 1st defendant and DW4 stated that he does not know the name of the temple and how 1st defendant possessed the schedule property besides stating that he does not know the boundaries of the schedule property. Whereas DW5 stated in the cross-examination that he did not cultivate the schedule property at any point of time while denying the suggestion that the plaintiff –temple gave the schedule property to the grandfather of the plaintiff for the services rendered by him i.e., for chanting

Swasthivachakam. Their evidence is useful to show the possessions of the father of 1st defendant and 1st defendant, which is not in dispute.

14

19.PW2 and PWs.5 to 8 deposed in one voice that the plaintiff- temple is in possession of the schedule property and it is being given to the persons who chant Swasthivachakam in the temple premises and the forefather of 1st defendant enjoyed the schedule property. They further deposed that since long time 1st defendant or his persons failed to render any services but unathorizedly they enjoyed the schedule property. PW2 stated that he knows about filing of ATC No.336/1998 by the father of 1st defendant. PW2 denied the suggestion that as the 1st defendant did not agree to sell the plaint schedule property to him he is not deposing true version. Similar suggestion was put to PW5 and PW6 also denied the same. PW7 stated that he knows tenancy proceedings. PW8 stated that he did not prefer any complaint to higher authorities for the failure of 1st defendant to chant Swasthivachakam. The evidence of PW2, P.Ws. 5 to 8 proved that the plaint schedule property was given for chanting Swasthivachakam in the plaintiff – temple and in that process the ancestor 1st defendant enjoyed the schedule property. Ex.X2-Re-settlement register proved that the schedule property is standing in the name of plaintiff –temple meant for chanting Swasthivachakam and though the learned counsel for the defendants argued that the children of grand father of 1st defendant partitioned the properties of the grandfather of 1st defendant, no such document was exhibited on behalf of the defendants to prove the correctness of the contention raised by 1st defendant. Ex.X3 –property register is dt. 02-04-1958 and it further shows that it was approved, accepted and corrected on 05-10-1960. The above entries were made by the concerned while discharging their functions in the normal course. Similarly Exs.A2 and A3-adangals relating to fasli 1409 and 1410 show that the schedule property covered by R.S.No.55/2 is standing in the name of Sri.Lakshmaneswaraswamivari temple and one Mutyala Rama Venkata Subbarao is shown as possessor.

20.While referring to Exs.A2 and A3, the learned counsel for appellants argued that mere entries in revenue records do not confer title and while arguing so, he relied upon a case held in between

Municipal Corporation, Gwalior V. Puran Singh @ Puran Chand

and others 3 , wherein their Lordships of Hon’ble Apex Court held at para No. ‘7’ as follows: ------------------------------------ 3.2014(6) ALD 28 (SC) 15 ‘ Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title’

21.In the instant case, the plaintiff –temple proved it’s case not only by relying upon revenue record but also by relying upon the register being maintained by it which was prepared in the year, 1950 and also by relying upon re-settlement register extract and other evidence showing the entrustment of the schedule property to the ancestor of the 1st defendant.

22.Therefore, the voluminous oral as well as documentary evidence placed by the plaintiff –temple proved that the schedule property is standing in the name of plaintiff –temple and it is given to the ancestor of 1st defendant to render services i.e., to chant

Swasthivachakam and in that process the 1st defendant came into possession of the same.

23.The learned counsel for the defendants argued that the plaintiff failed to prove it’s title by not filing any proof to show as to how it acquired the schedule property and by not showing the name of the devotee who endowed the property to the plaintiff –temple.

24.By way of reply the learned counsel for the plaintiff argued that it is not possible to secure the name of the devotee or the document concerned as the property was given long back prior to 200 years ago or so and since the plaintiff proved it’s title by relying upon re-settlement register and thereby could discharge the burden of proof that rests upon it, certainly, the plaintiff is entitled to seek the relief as prayed for by it.

25.In the instant case when the 1st defendant has been 16 claiming title the burden of proof equally lies upon him to prove that the schedule property is the property of his grandfather and the same was developed upon his father by virtue of alleged partition. Except the oral evidence, there is no convincing evidence to show that the children of his grandfather got partitioned the properties of his grandfather and the schedule property was allotted to the share of the father of the 1st defendant. The attending circumstances proved that the plaintiff –temple gave the schedule property to the ancestor of 1st defendant for rendering services to the plaintiff –temple i.e., to chant

Swasthivachakam. Though the defendants relied upon Ex.B1 –true copy of order in ATC 36/98 which was decreed in favour of father of 1st defendant and Ex.B2 -certified copy of delivery warrant to show that the schedule property was delivered to the possession of father of 1st defendant, those two documents do not confer title on the 1st defendant. Similarly, Ex.B4 to Ex.B6 and Ex.B8-tax receipts also do not confer title on the defendants. Therefore, the plaintiff –temple proved that it has entrusted the schedule property to the forefather of the 1st defendant for chanting Swasthivachakam in the temple as the said property was endowed to it long back. Accordingly, point no.1 is answered against the appellants holding that the schedule property was entrusted to the forefather of 1st defendant for chanting

Swasthivachakam.

26.Point No.2: Though the learned counsel for the defendants argued that the 1st defendant got absolute rights over the schedule property by virtue of execution of Ex.B3-registered Will by his father, as already discussed above, the father of 1st defendant has no right to execute Ex.B3-Will in favour of 1st defendant for the reason that the defendants failed to establish the title of the grandfather of 1st 17 defendant or the father of the 1st defendant over the schedule property. The evidence let in by the plaintiff –temple proved that the 1st defendant was in possession of the schedule property as it was entrusted to his ancestor for the purpose of chanting

Swasthivachakam and certainly, his possession over the schedule property is a permissive possession and he cannot acquire title by virtue of his continuous possession as his possession was not adverse to the interest of real owner i.e., the plaintiff –temple. Accordingly,

Point No.2 is answered against the appellants holding that the possession of the 1st appellant/ 1st defendant over the schedule property is permissive possession

27.Point No.3: The plaintiff –temple pleaded that the 1st defendant committed default in discharging his duties by not chanting

Swasthivachakam in plaintiff –temple and therefore, sought for recovery of possession and the very alienation of the property by the 1st defendant in favour of 2nd defendant under Ex.A1-sale deed dt. 30- 10-2003 proved that he failed to render services to the temple.

Accordingly, point No.3 is answered against the appellants.

28.Point No.4: Though the defendants let in evidence by contending that the 1st defendant acquired title by virtue of execution of Ex.B3-Will in his favour by his father, the defendants failed to prove the title of ancestor of 1st defendant or the father of 1st defendant and similarly the 1st defendant also failed to prove the alleged partition said to have been effected among the children of his grandfather.

Therefore, though the 1st defendant sold away the property to 2nd defendant under Ex.A1 –sale deed and though it was suggested to PW5 that he was not deposing true version as the 1st defendant sold away the property to 2nd defendant though PW5 tried to purchase the 18 schedule property which was denied by PW5, the 1st defendant failed to establish his title and so he cannot convey better title than what he himself had in favour of 2nd defendant and consequently Ex.A1-sale deed executed in favour of 2nd defendant by the 1st defendant does not bind the plaintiff – temple. Similarly, though the 2nd defendant exhibited Ex.P7-pattadhar passbook, it was obtained in respect of the schedule property and the entry was made in his favour based on

Ex.A1-sale deed dt. 30-10-2003 and therefore it does not create any title in favour of 2nd defendant, who failed to prove that he is a bonafide purchaser as he stated in the cross-examination that on verifying link documents he purchased it and he also does not know about the tenancy case filed by the father of 1st defendant in ATC 36/1998, who further stated that he does not know about partition deed and that he was told that the schedule property belongs plaintiff –temple. Therefore, Ex.A1-sale deed executed by the 1st defendant in favour of 2nd defendant does not bind the plaintiff-temple and consequently, the 2nd defendant is liable to deliver possession of the same to the plaintiff –temple. Accordingly, point No.4 is answered against the appellants holding that Ex.A1 sale deed doesn’t bind the plaintiff and 2nd defendant has to deliver possession of schedule property to the plaintiff.

29.Point No.5: The learned Trial Court rightly decreed the suit holding that 1st defendant without any title executed sale deed in favour of 2nd defendant and the possession of 1st defendant is a permissive possession by declaring that the sale deed executed by 1st defendant in favour of 2nd defendant does not bind the plaintiff –temple besides directing the 2nd defendant to deliver vacant possession of the schedule property and so there is no need to interfere with the findings of the learned Trial Court.

19

30.POINT No.6:- In the result, the appeal is dismissed with costs.

Typed to my dictation, corrected and pronounced by me in open Court, this the 29 th day of March, 2018.

VII ADDL.DISTRICT

JUDGE,

WEST GODAVARI, ELURU.

No oral or documentary evidence is adduced on either side.

VII A.D.J.,

W.G., Eluru.

Copy to: The 1st Additional Junior Civil

Judge’s Court, Eluru, along with

Entire record in O.S.No.226/2006

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE

WEST GODAVARI :: ELURU

PRESENT:- Smt.Siripurapu Sreedevi,

VII Additional District Judge,

W.G., Eluru,

Wednesday, this the 28th day of March, 2018.

APPEAL SUIT No.117/2013

Between:

Gadi Madhava Rao

...Appellant/plaintiff….

Vs.,

1. Sirigi Subba Rao(died)

2. Sirigi Bala Krishna

...Respondents/Defendants...

On appeal filed against the decree and judgment dated 26.03.2013 passed in O.S.No.361/2008, on the file of 1st Additional

Junior Civil Judge,

Eluru.

Between:

Gadi Madhava Rao

...Plaintiff….

Vs.,

1. Sirigi Subba Rao(died)

2. Sirigiri Bala Krishna

...Defendants...

This appeal is coming on 27-03-2018 for final hearing before me in the presence of Sri.Ch.Srinivasa Rao, Advocate for the Appellant and of Sri.S.Brahmam, Advocate for 2nd Respondent and 1st respondent died and having stood over for consideration till this day, the Court delivered the following:

J U D G M EN T

The plaintiff is the appellant who preferred this appeal being aggrieved by the judgment and decree passed by the learned 1st

Additional Junior Civil Judge, Eluru, in O.S.No.361/2008, dt.26.03.2013

against the defendants and the parties to the appeal hereinafter will be referred as plaintiff and defendants as they arrayed in the trial court 2 and the brief case of plaintiff is as follows:

2.The plaintiff filed the suit seeking the recovery of possession U/Sec. 6 of Specific Relief Act. Plaintiff was carrying on business under the name and style of Sri.Uma Srinivasa Iron Stores,

Eluru, in the plaint schedule shop which is situated in an extent of 5.87 square yards of site as a tenant by obtaining the same under lease on a monthly rent of Rs.300/- from 1st defendant who is the father of 2nd defendant by paying Rs.5,000/- towards advance to 1st defendant. The plaintiff obtained dealers license from the Controller, Legal Metrology

Department, Hyderabad, which is being renewed and it is in force.

The 1st defendant is not in the habit of issuing rent receipts to the plaintiff and as there were cordial relations the plaintiff did not insist for issuance of receipts. The oral lease was being extended from time to time. The plaintiff was in occupation of the premises till the defendants trespassed into it high handedly and till he was wrongfully dispossessed from the premises. The plaintiff stocked material worth lakhs of rupees in pursuance of growing needs of his business. The defendants developed an evil idea of evicting the plaintiff and thereby dispossessed him. On the Southern side of schedule property there is a joint wall, which is joint to the defendants and another. It was removed by the Southern side neighbour of defendants property. Since then, the defendants started behaving in an unbecoming manner and annoying the plaintiff. The plaintiff is a protected tenant. The defendants have no right to evict the plaintiff except under due process of law. The plaintiff filed the suit in O.S.No.881/2007 on the file of 1st Additional Junior Civil

Judge, Eluru, seeking permanent injunction and subsequently, by virtue

of filing of the present suit in O.S.No.361/2008, he not-pressed the suit in O.S.No.881/2007. The defendants illegally have broken the doors of 3 plaintiff’s shop on 23-10-2007 during night hours and trespassed into the same. They have thrown out the valuable materials i.e., scales, weights and measures and also caused damage to his property as they hired Gundas. The plaintiff reported the same to I Town P.S., but in vain.

He was dispossessed from the premises on 23-10-2007. The plaintiff filed RCC seeking permission to deposit monthly rent who sent the rents through his counsel by way of DD through post to 1st defendant but he tampered the cover and refused to receive the same. The plaintiff also lodged a complaint to postal department. The 1st defendant executed a registered settlement deed in favour of 2nd defendant on 23-08-2003 and so the plaintiff filed the suit against the 1st defendant from whom he obtained the schedule property under lease and against the 2nd defendant who is the present owner of the schedule property.

3.The 1st and 2nd defendants filed written statement praying the court to dismiss the suit by denying the averments made in the plaint specifically and the brief contents of it are as follows:

It is mainly contended that the 1st defendant and his elder brother viz., Yedukondalu purchased item No.1 of vacant site consisting 56.1/9 yards and 2nd item i.e., passage/lane in an extent of 6.2.3 yards covered by T.S.No.891/8 and the present property covered by

T.S.No.891/A pt situated in Market Street, as shown under sale deed

dt. 27-06-1972. The 2nd item i.e., narrow lane/passage is situated on

the Northern side of item No.1 of the property. Later they constructed

RCC building in 1st item of the property while using the 2nd item of the property as passage for ingress and egress to have access to main bazar from 1st item of the property and since then they have been in possession and enjoyment of those two items for their business of 4 making handicrafts i.e., weaving baskets, mats, fans etc.

The 1st defendant and his brother Yedukondalu settled Western part of item No.1 of the building situated in an extent of 26.66 yards and 2nd item i.e., narrow passage which is in an extent of 5.87 yards bearing door No.8-9-17 covered by T.S.No. 891/A pt situated on the

North-West corner of item No.1 of the schedule property, which leads to main bazar in favour of 2nd defendant under two registered settlement deeds dt. 23-08-2003. Likewise, they also settled the

Eastern part of item No.1 of the building to Sirigiri Durga Rao on the same day under two settlement deeds. Since then, the 2nd defendant and his brother viz., Durga Rao have been in possession and enjoyment of their respective shares. The 2nd defendant became the absolute owner of the passage which is being used for ingress and egress for his shop from main Bazar. Therefore, the schedule property is a narrow lane being used as a passage but not a shop which is wrongly described as a shop. As the 1st defendant is not the owner of the same he is in no way concerned with the said narrow lane/passage.

The defendants 1 and 2 never gave the passage to the plaintiff or anybody under lease and there is no landlord and tenant relationship in between the defendants and plaintiff and the said lane is a narrow lane which is in a width of 28 inches only.

One Kanikicherla Dharmalingeswaramma owned a shop on the

Southern side of the said narrow lane/passage that belongs to the 2nd defendant and the plaintiff obtained the shop from

Dharmalingeswaramma under lease to carry on his business. One

Andra Kishore Kumar purchased the said shop from

Dharmalingeswaramma in the month of August, 2003 within the knowledge of plaintiff who was the tenant of Dharmalingeswaramma.

5

The plaintiff vacated the shop before filing the suit in O.S.No.881/2007.

After the plaintiff vacated the shop the said Andra Kishore Kumar got removed the structures and an RCC building was constructed for the purpose of shops to carry on their business and they have been carrying on their business in their shops. After vacating the shop of

Andra Kishore, the plaintiff requested the 1st defendant to permit him to use the lane for two or three months and the 1st defendant did not allow the plaintiff to use the lane. Then, he developed grudge against the defendants and filed suit in O.S.No.881/2007 where the 1st defendant filed his written statement with correct particulars and later the plaintiff has withdrawn the suit in O.S.No.881/2007. The plaintiff has been carrying on his business in his own shop which is situated near the schedule property and there is no relationship of landlord and tenant in between themselves and the plaintiff.

4.Based on the pleadings , the learned Trial Court framed the following issues for trial:

(i).Whether the plaintiff is entitled for restoration of possession of the plaint schedule property?

(ii)To what relief?

5.The plaintiff got himself examined as PW1 and the supporting witness was examined as PW2 and exhibited Exs.A1 to A22.

The 2nd defendant got himself examined as DW1 and the supporting witnesses were examined as D.Ws. 2 to 4 and Exs.B1 to B7 were exhibited.

6.The plaintiff preferred this appeal against the 2nd defendant alone by showing the 1st defendant as dead by contending that during the pendency of suit proceedings the counsel for plaintiff filed memo on 09-06-2011 contending that the legal representative of 1st 6 defendant was already on record and on the ground that the 2nd defendant is claiming absolute rights over the schedule property by virtue of registered document executed by 1st defendant.

7.The learned 1st Additional Junior Civil Judge, Eluru, after considering the pleadings and evidence of both parties, dismissed the suit on the premise that there is no landlord and tenant relationship in between the defendants and plaintiff as none of the documents filed by the plaintiff show that he is a tenant of defendants in respect of schedule property.

8.The appellant/plaintiff challenged the judgment of trial court on the following grounds.

The appellant mainly contended that there is a tenant and landlord relationship between himself/plaintiff and the defendants as on the date of filing of the suit in O.S.No.881/2007 and the Trial Court ought not to have concluded that the schedule property is a passage instead of shop. He further contended that Exs.A1 to A5 and A.17 clearly establish that the plaintiff was a tenant in the schedule shop who was forcibly evicted from the premises. It is also contended that

DW2 himself admitted that Ex.A19 photograph relates to the schedule shop and had it been scrutinized the schedule shop can be easily found. He further contended that he got issued legal notices prior to filing of suit which proved that the defendants were going to evict him by adopting illegal methods for which the defendants did not give reply. It is also contended that Ex.B6 is a collusive document brought into existence by the defendants with the help of neighbouring shop owner viz., Andra Kishore Kumar. During the pendency of the suit in

O.S.No.881/2007 and R.C.C.No.23/2007 filed by the plaintiff, he was

illegally dispossessed by the defendants. It is further contended that 7 the Trial Court ought to have given importance to the citations filed by the plaintiff. When the defendants specifically contended that the plaintiff requested them to permit him to carry on business in the schedule site for about two or three months, basing on the said contention it can be inferred that the alleged passage can be used for business and Ex.A19-photograph also proves the existence of schedule shop. The plaintiff is a protected tenant who filed the suit U/Sec. 6 of

Specific Relief Act, for restoration of possession and the defendants did not give proper explanation as to what made the plaintiff to send DD, to give complaint to police, to file suit for injunction in O.S.No.881/2007 and to file RCC 23/2007 and to file the present suit for restoration of possession of the schedule shop.

9.Heard the learned counsel for the appellant and the respondents.

10. The learned counsel for the appellant mainly argued that the appellant filed suit U/Sec. 6 of Specific Relief Act as he was illegally dispossessed by the defendants during the pendency of suit that was filed by him for permanent injunction. The counsel further argued that the plaintiff is a protected tenant and he cannot be evicted except under due process of law. He also argued that the very contention of the defendants that the plaintiff asked them to permit him to carry on business for two or three months in the schedule property and their alleged refusal clearly shows that the schedule property is a shop where business can be carried on but not a lane. He further argued that the plaintiff relied upon voluminous documentary evidence to prove that he was carrying on business in the schedule property for the past 15 years by obtaining the same initially from the 1st defendant by 8 paying an advance amount of Rs.5,000/- on a monthly rent of Rs.300/- which was transferred in the name of 2nd defendant by his father i.e., the 1st defendant.

11.By way of reply the learned counsel for the defendants argued that the plaintiff never carried on business in the schedule lane and he never obtained the premises under lease from the father of 2nd defendant besides arguing that the suit was filed against Subbarao who is the father of real owner but not against the real owner.

However, a perusal of cause title shows that the suit was filed against the original owner and also against the present owner. The counsel further argued that the plaintiff carried on his business by obtaining the shop of one Dharmalingeswaramma who owned a shop on the

Southern side of the schedule passage under lease and one Andra

Kishore Kumar purchased the shop from Dharmalingeswaramma in the month of August, 2003 within the knowledge of the plaintiff and that the plaintiff vacated the said shop before filing suit in O.S.No.881/2007.

He further argued that after vacating the shop of Andra Kishore Kumar, the plaintiff requested the 1st defendant to permit him to use the schedule lane for two or three months which is situated in an extent of 28 inches and when the defendants did not consider his request the plaintiff filed the present suit who did not come to the court with clean hands.

12.Having heard the rival contentions of the learned counsel for both parties and on perusal of the material on record, the points that arise for consideration are as follows:-

1.Whether the 1st defendant inducted the plaintiff as a tenant in the schedule property on a monthly rent of Rs.300/- by receiving Rs.5000/- towards advance?

9

2. Whether the defendants dispossessed the plaintiff from the schedule property?

3.Whether the plaintiff is entitled to seek the relief of restoration of possession?

4.Whether there are any grounds to interfere with the findings of the learned 1st Additional Junior Civil Judge, Eluru?

5.To what relief?

13. POINT No.1:- The plaintiff as PW1 stated in his evidence that he was inducted as a tenant in the schedule property by the 1st defendant on a monthly rent of Rs.300/- wherein he used to carry on business under the name and style of Sri Uma Srinivasa Iron Stores,

Eluru and that he obtained a dealers license No.ELR/D.L.3/90, which is in force.

14.The 2nd defendant as DW1 stated in his evidence that one

Kanicherla Dharmalingeswaramma owned a shop on the Southern side of schedule passage of the defendants and that the plaintiff obtained the said shop from Dharmalingeswaramma under a lease agreement

dt. 28-04-1999 on a monthly rent of Rs.2,045/- payable by the end of

the same month commencing from 01-04-1999 to 31-03-2003. He further stated that one Andra Kishore Kumar purchased the shop from

Dharmalingeswaramma in the month of August, 2003 within the knowledge of plaintiff who was the tenant by then. PW1 stated that he has been carrying on business under the name and style of Uma

Srinivasa Iron Stores. He admitted that he carried on business in the shop bearing door No.8-9-15 for about 25 or 30 years and that he carried on business in the said shop only. He further admitted that the plaint schedule shown in O.S.No.881/2007 is relating to the shop bearing door No.8-9-13 besides admitting that the Southern wall of the said shop relates to Kanichicherla Dharmalingeswaramma. He further 1 0 admitted that he obtained license for conducting business in Door

No.8-9-15 only. He also stated that in the year, 2006 or 2007 he vacated the shop bearing door No.8-9-15 and doing business with same license in another premises. He also admitted that there is a small lane in the North-West Corner of the shop of defendants leading to Main Bazar measuring 2 feet 3 inches width which is in a length of 23 ½ feet. He also stated that he does not remember whether there is any document to show that he did business in the schedule property under the name and style of Uma Srinivasa Iron Stores.

15.He made a crucial admission stating that

Dharmalingeswaramma sold the said property to Andra Kishore Kumar under a registered sale deed dt. 13-08-2003 and that he vacated the shop on 20-08-2007 while denying the suggestion that he obtained

Rs.4,00,000/- from Andra Kishore Kumar for vacating the said shop as goodwill. He further admitted that in the lease agreement that was executed by him and Dharmalingeswaramma, the Northern boundary is shown as a lane. His evidence further shows that there is a way to the lane from his shop leading to main bazar. He also admitted that two persons cannot pass opposite to one another in the schedule lane besides stating that the defendant is doing business in preparing

Bamboo stick baskets, mats etc., on the Eastern side shop of Andra

Kishore Kumar. He admitted that one can pass through the main bazar from the shop of defendant on the South-West Corner through the schedule lane, besides contending that the lane has been in existence since more than 25 years. He denied the suggestion that the door number shown in the plaint schedule is not correct. He further stated that there is no roof to the plaint schedule lane. He admitted that the southern boundary wall belongs to Andra Kishore Kumar and Northern 11 boundary wall belongs to Ura Harinadha Venkata Ramana. He denied the suggestion that he vacated the shop of Kishore Kumar and requested the defendants to permit him to use the lane temporarily and as the defendants refused for the same he filed the suit while admitting that he vacated the shop purchased by Kishore Kumar on 20- 08-2007. To his knowledge Kishore Kumar purchased the shop where he carried on business from Dharmalingeswaramma bearing Door

No.8-9-15. Those answers given by PW1 proved the case of the defendants that the plaintiff never carried on business in the plaint schedule lane for about 15 years prior to filing of the present suit in

O.S.No.361/2008.

16.Since, the suit was filed in the year, 2008, the alleged dispossession must have taken place within six months prior to the filing of suit. The defendants specifically contended that the schedule property is not a shop and it is a lane owned by them and that there is no landlord and tenant relation in between themselves and the plaintiff. When the plaintiff specifically pleaded and deposed in his evidence that he carried on business in the plaint schedule property for about 15 years by the time of filing of the suit in O.S.No.361/2008 he should have proved the same by placing the best possible evidence.

The plaintiff relied upon Ex.A18 license issued by Assistant Controller of Legal Metrology, Eluru, dt. 29-04-2006. The same was issued in the name of Sri.Uma Srinivasa Iron Stores being represented by the plaintiff dt.29-04-2006 which speaks that the period of license will expire by 31-12-2006. The plaintiff also relied upon Ex.A17-copy of petition in RCC 23/2007 wherein he sought permission to deposit the rents @ Rs.300/- per month from 01-08-2007. The door number of the shop is shown as 8-9-13. He further relied upon Ex.A6 to Ex.A15 bills 1 2 obtained by him showing purchase of materials and those documents indicate that while the plaintiff was carrying on business in the tenanted premises of Dharmalingeswaramma initially which was purchased by Andra Kishore Kumar, they were issued. Ex.A1 is the report given to the police and Ex.A3 is the copy of plaint in

O.S.No.88/2007 filed by the plaintiff seeking the relief of permanent

injunction. The plaintiff also relied upon Ex.A22 counter foil which shows that DD was obtained for Rs.300/- on 07-09-2007, whereas

Ex.A21-reply given by postal department shows that the registered letter was addressed on 06-09-2007 and it creates any amount of doubt for the reason that correspondence appears to have been made on the previous day while DD appears to have been obtained on subsequent day.

17.PW2 who is a third party to the proceedings stated in his evidence that the defendants laid a roof in between two walls of two shops in main bazar and started collecting rents from the plaintiff @

Rs.300/- per month and that the width of shop is 3 feet while it’s length is 24 feet. He also deposed that the defendants wrongfully removed the shed by dispossessing the plaintiff illegally. He admitted in the cross-examination that from the shop of plaintiff one has to pass through the lane situated on the Northern side of shop and house of

Ura Harinadha Venkata Ramana Rao to reach main bazar. He further admitted that earlier the plaintiff used to run business in the shop of

Kanikicherla Dharmalingeswaramma by taking the same under lease for a period of 20 years at about 5 or 6 years ago. He also admitted that Dharmalingeswaramma sold away the shop in the year, 2003 besides stating that the plaintiff vacated the shop of

Dharmalingeswaramma at about five years ago. He denied the 1 3 suggestion that the defendants never gave the lane for rent to the plaintiff and that he was never evicted forcibly.

18.Therefore, the defendants by cross-examining P.Ws. 1 and 2 could elicit from them that the contention of plaintiff that he carried on business in the schedule premises/lane for a period of 15 years prior to filing of suit is highly doubtful for the reason that PW1 himself admitted that he vacated the shop of Andra Kishore Kumar on 20-08- 2007.

19.The 2nd defendant admitted that there is no separate door number to the schedule property and that the door number of his building applies to the schedule property. He denied the suggestion that the plaintiff is having license with separate door number to the schedule property issued by Weights and Measures Department. He further denied the suggestion that with a view to evict the plaintiff they got the premises demolished with the help of Andra Kishore Kumar.

The said suggestion shows that after vacating the shop of Andra

Kishore Kumar by the plaintiff, the demolition had taken place and therefore, the alleged dispossession of the plaintiff from the schedule premises/lane is highly doubtful which is in a width of 28 inches and in a length of 27 feet even as per the admission made by PW1. The evidence of DW2 and DW3 is replica to the evidence of DW1 regarding the fact that the plaintiff and Kanicherla Dharmalingeswaramma entered into lease agreement in the year, 1999 in respect of her shop commencing from 1999 to 2003 and that one Andra Kishore Kumar purchased the shop premises in the month of August, 2003 and that the plaintiff vacated the shop in the month of August, 2007.

20.In the cross-examination DW2 admitted that the plaintiff continued as a tenant subsequent to purchase of shop by Andra 1 4

Kishore Kumar. He further stated that the schedule shop is on the

North of shop of Andra Kishore kumar. He denied the suggestion that the 1st defendant laid iron rods in between the walls of Ura people and

Dharmalingeswaramma and erected iron sheet roof and gave the same under lease to plaintiff on a monthly rent of Rs.300/-. He further denied the suggestion that there is a shop in the schedule property till Andra

Kishore Kumar demolished his shop, which negatives the contention of the plaintiff that he obtained the premises under lease from the 1st defendant. DW3 specified that the property in dispute is a narrow lane.

He denied the suggestion that the plaintiff used to do business by placing his articles in the schedule lane. He also denied the suggestion that there is a separate door number to the schedule lane.

21.DW4 stated in his evidence that presently the plaintiff has been carrying on his business in his own shop. He stated in the cross- examination that Andra Kishore Kumar and the defendants reduced into writing a document with regard to the existence of a lane. He denied the suggestion that there used to be an asbestos roof over the lane by keeping iron beams on his house wall and on the wall of Andra

Kishore Kumar. He admitted that in Ex.A19 medical shop, cool drink shop and his staircase are visible. He denied the suggestion that after vacating his shop, the plaintiff shifted his shop to

Dharmalingeswaramma which was purchased by Andra Kishore.

22.DWs.1 to 3 further stated in their evidence that the father of 1st defendant viz., Subba Rao and his brother – Yedukodalu settled the Western part of item No.1 of the building consisting an extent of

Ac.26.66 yards and 2nd item i.e., narrow passage in an extent of 5.87 yards covered by Door Number 8-9-17 situated on the North-West corner of item No.1 of the property which leads to main bazar under 1 5

Ex.B1 and Ex.B2 –settlement deeds dt. 23-08-2003 in favour of 1st defendant. DW1 further stated that likewise, the Eastern Part was settled in favour of Sirigiri Durga Rao by 1st defendant and his brother.

There is no dispute regarding the title of 2nd defendant over the suit schedule lane which is in a width of 27 inches and in a length of 6 yards. DW1 admitted that Andra Kishore Kumar undertook to construct the building by leaving the schedule property intact.

23. Since, there is no dispute about the initial title of 1st defendant and subsequent title of 2nd defendant by virtue of Ex.B1 and

Ex.B2-settlement deeds, there is no need to discuss much about the title of 2nd defendant over the schedule property. The defendants relied upon Ex.B6-undertaking letter under which Andra Kishore Kumar asserted that he purchased one shop i.e., Uma Enterprises which was in a dilapidated condition, while stating that towards Northern side, the defendants own a shop including dwelling house etc. He gave an undertaking under Ex.B6 that while removing his shop and while constructing a new shop he would not encroach the lane of the defendants which is in a width of 28 inches. Merely because Ex.B6 was obtained by the defendants it cannot be presumed that the plaintiff was forcibly dispossessed from the premises. Even without looking into Ex.B6, still the evidence let in by the plaintiff proved that he never carried on business as a tenant in the plaint schedule lane for a period of 15 years prior to filing of suit and he was never dispossessed from the premises as pleaded by him and as deposed by him.

24.Though the learned counsel for plaintiff cross-examined

D.Ws. 1 to 4 at length, nothing could be elicited from them in support of the case of the plaintiff to infer that he resided as a tenant in the schedule premises. He could not prove his possession over the 1 6 schedule property during the alleged period of 15 years prior to filing of suit. Ex.A18 also might have been obtained while he was carrying on business in the shop premises of Andra Kishore Kumar, which was originally belonged to Dharmalingeswaramma, for the reason that he himself admitted that, he vacated the premises in the year, 2017.

Ex.B5 is the copy of counter in RCC 23/2007 filed by the 1st defendant herein against the plaintiff and the contents of counter are almost replica to the contents of written statement filed by the defendants in the present suit. Similarly Ex.B4-written statement filed by Sirigiri

Subba Rao/D1 herein are replica to the contents of written statement filed in the present suit. Therefore, though the plaintiff let in voluminous documentary evidence in addition to his own evidence, he failed to establish his prior possession over the schedule property/lane which is in a width of 28 inches and in a length of 27 feet. He failed to prove landlord and tenant relationship in between himself and defendants, whereas the defendants proved their case by eliciting from

D.Ws. 1 and 2 that the plaintiff carried on business in the shop premises of Dharmalingeswaramma which was subsequently purchased by Andra Kishore Kumar and which was vacated by the plaintiff in the year, 2007 and he failed to prove that the defendants laid iron rods and asbestos roof in between the two walls of shop of

Andra Kishore Kumar and the shop wall of Ura Hari Naga Venkata

Ramana Rao, whereas the 2nd defendant could establish by his positive evidence that the schedule premises/lane was never given under lease to the plaintiff, who filed the present suit in the year, 2008 by claiming earlier possession for a period of 15 years though he vacated the shop premises of Andra Kishore Kumar in the year, 2007 only and the plaintiff has gone to the extent of showing the schedule property as shop premises in an extent of 5.87 square yards, though it is a very 1 7 narrow lane. Accordingly, point No.1 is answered against the appellant holding that the 1st defendant never inducted the plaintiff as a tenant in the schedule lane/premises on a monthly rent of Rs.300/- which was settled in favour of 2nd defendant by the 1st defendant.

25.As the point Nos. 2 and 3 are interlinked they are answered together as follows:

Point Nos. 2 and 3: By virtue of the finding given on point

No.1, these points are answered against the appellant holding that as the appellant was never in possession of schedule premises, the question of dispossessing him by the defendants does not arise and consequently, the plaintiff/appellant is not entitled to seek the relief of restoration of possession of the plaint schedule property to him.

26.Point No.4: The learned Trial Court rightly dismissed the suit holding that there is no landlord and tenant relationship in between the defendants and plaintiff and so there is no need to interfere with the finding of the learned Trial Court.

27.POINT No.5:- In the result, the appeal is dismissed with costs.

Typed to my dictation, corrected and pronounced by me in open Court, this the 28 th day of March, 2018.

VII ADDL.DISTRICT JUDGE,

WEST GODAVARI, ELURU.

No oral or documentary evidence is adduced on either side.

VII A.D.J.,

W.G.,

Eluru.

Copy to: The 1st Additional Junior Civil

Judge’s Court, Eluru, along with

Entire record in O.S.No.361/2008 1 8

IN THE COURT OF THE VII ADDITIONAL SESSISONS JUDGE, WEST GODAVARI

DIVISION, ELURU.

Present: Smt. Siripurapu Sreedevi,

Judge, Family Court-cum-VII Additional Sessions Judge,

West Godavari, Eluru.

Saturday, this the 31st day of March, 2018.

CRIMINAL APPEAL No. 412 of 2015

From what Court the appeal:Judicial Magistrate of First Class, Special isMobile Court, W.G., Eluru

No. of the case in that :DVC.No.10/2014. Court

No. of the Criminal Appeal:Criminal Appeal No.412/2015

Name and Description of:1.Agniparti Ranga Rao S/o. Davallu, Christian, Male, 35 years, R/o. Yarrampalli the Appellants Village, Chintalapudi Mandal, West Godavari District 2.Agniparthi Jaya Raju S/o. Davallu, Christian, Male, aged 50 years, R/o. Yarrampalli Village, Chintalapudi Mandal, West Godavari District 3.Agniparti Venkateswara Rao S/o. Davallu, Christian, Male, aged 40 years, R/o. Yarrampalli Village, Chintalapudi Mandal, West Godavari District.

Name and description of:1.Smt.Agniparti Chandravathi @ Chandra D/o. Chodimella China Anjaiah, Hindu, the female, aged 30 years, R/o. Kothapalli Complainants/respondents. Village, Gopannapalem Grama Panchayat, Denduluru Mandal, West Godavari District.

2. The State rep. by the Public Prosecutor, Eluru, W.G.District. The Sentence and Law and: In the result, the 1st respondent is which it was imposed in the directed to return the dowry amount of Lower Court Rs.50,000/- to PW1 within three months and further he is directed to pay monthly maintenance of Rs.5,000/- (Rupees Five

Thousand only) to the complainant from the date of this order and he is further directed to pay the amount on first day of every succeeding month while the respondents 2 and 3 are directed not to interfere into the personal freedom and space of PW1 and if they failed to obey the orders of the Court, they are liable for penal consequences Under 2

Sec. 31 of DVC Act.

Whetherconfirmed,:M O D I F I E D modified or reversed and if In the result, the appeal is partly modified the modification allowed by setting aside the orders passed by the learned Trial court in DVC No.55/2012, dt.08-10-2014 to the extent of direction given to 1st respondent to return dowry amount of Rs.50,000/-, while confirming the order of grant of maintenance @ Rs.5,000/- per month.

Date of presentation:01-12-2015

Date of filing:01-12-2015

Date of notice issued :01-12-2015

Date of Bail bond:--

Date of appearance:10-03-2016

Date of hearing:28-03-2018

Date of Judgment:31-03-2018

This appeal is coming for hearing before me on 28.03.2018, on perusal of grounds of appeal and the evidence available on record and on hearing the arguments of Sri Ny.V.Prasad, Advocate for Appellants 1 and 3/Respondents and of Sri.P.N.Pal, Advocate for 2nd appellant/respondent and of Sri.G.V.Ananda Kumar, Advocate for Respondent/Complainant and the Additional Public Prosecutor, for the R2/State and having stood over for consideration, this Court delivered the following:

J U D G M E N T

1. The appellants are the respondents 1 to 3 in the Trial Court who preferred this appeal being aggrieved by the orders passed by the learned Judicial Magistrate of I Class, Special Mobile Court, Eluru, in

D.V.C.No.10/2014, dt.03.11.2015 and the parties will be hereinafter referred, as arrayed in the Trial Court.

2.The complainant filed this petition U/Sec. 12 and other provisions of Domestic Violence Act against the respondents 1 to 5 praying 3 the court to direct the 1st respondent to provide maintenance @ Rs.10,000/- per month, to direct the respondents to return Rs.50,000/- towards dowry amount to give Rs.5,00,000/- towards compensation to provide separate residence or monthly rent @ Rs.3,000/- and to pay costs of litigation to a tune of Rs.20,000/- and the brief case of the complainant/petitioner is as follows:-

The marriage of complainant and 1st respondent was solemnized on 15-05-2012 at Chodimella of Eluru Mandal as per Christian rites and customs by which time, the parents of the complainant gave Rs.50,000/- towards dowry. The 1st respondent has been working as a clerk in Hetro Company

Limited, Hyderabad. The complainant joined him at Hyderabad. Since then, respondents 1 to 5 started harassing her both physically and mentally and the 1st respondent used to suspect her character and used to keep her inside the house under lock and she used to bear the harassment with a fond hope that they would get themselves changed and he used to beat her by demanding additional dowry and used to insist her to commit suicide. The 1st respondent has been addicted to vices like drinking, gambling and womanizing who started demanding Rs.2,00,000/- towards additional dowry and though the complainant informed the same to respondents 2 to 4 they also supported him. On one day, the 1st respondent administered cleaning acid lizol to the complainant, due to which, she suffered from vomitings and the respondents 2 to 4 supported the 1st respondent by demanding the complainant to give divorce or else they will perform marriage to 1st respondent. The respondents 4 and 5 by coming to Hyderabad, used to scold the complainant and harass her for additional dowry and the respondents 2 and 3 used to instigate the 1st respondent personally and through phone to harass her. Though the brother of the complainant paid some amount, the 1st respondent has not changed his attitude and again administered lizol and 4 necked her out from the house on 20-08-2013 and the neighbours who rescued her admitted her in a hospital and on information, her brothers brought her to their house at Kottapalli from the hospital but the respondents 1 to 4 did not turn up. The efforts made by the complainant through elders turned futile. Being vexed their attitude she filed PLC 92/2013 and they attributed unchastity to the complainant and subsequently, the SI of Police,

Denduluru, registered a case in Cr.No. 252/2013 U/Sec. 498-A of IPC, who was subjected to domestic voilence and who was deserted.

The 1st respondent has been working at Hyderabad who owns Ac.5.00 cents of land at Yerrampalli at Chintalapudi Mandal. He earns Rs.30,000/- per month and he has sufficient means to maintain the complainant. Earlier the complainant married one Katru Sarveswara Rao, which was dissolved by way of customary divorce on 12-07-2011 which is evidenced by

Vivaharaddupatram, dt. 12-07-2011.

3.The Respondents 2 and 3 filed adoption memo adopting the contents of counter filed by the 1st respondent who prayed the court to dismiss the complaint by denying the averments made in the complaint specifically and the brief contents of it are as follows:

It is mainly contended that the complainant has been intentionally black-mailing the 1st respondent and his family members to have wrongful gain. Had the marriage been performed on the above said date in the

Church, the complainant could have filed petition for restitution of conjugal rights U/Sec. 32 of Indian Divorce Act. There is no marital relation in between the complainant and the 1st respondent and giving of dowry does not arise.

The 1st respondent never resided with the complainant at Hyderabad and never lead conjugal life and the question of keeping her inside the house under lock and beating her does not arise. The alleged administration of Lizol 5 is not correct. The complainant married one Katuri Sarveswara Rao of

Lingapalem Mandal and even though the complainant admitted the same, there is no divorce in between them through court of law and had any such divorce been effected, the complainant could have filed proof before the court. The complainant and his relatives viz., one Rushirao reporter of

Prajashakthi daily and his Gang are responsible for everything who are liable for prosecution. The 1st respondent came to know that the sister’s husband of the complainant always carry latest digital camera for news photographs and in that process he developed sufficient techniques to create scenes and in such a way he created the marriage photos of the complainant and 1st respondent and started black mailing the 1st respondent. The family of complainant has no capacity to pay the alleged dowry of Rs.50,000/- and no such marriage had taken place in between the complainant and 1st respondent as the complainant and her family members hold white ration card who have been earning their livelihood by working as coolies.

The 1st respondent received copy of police report given by the complainant who added the name of sister of 1st respondent viz., Kotamarthi

Chandrakantha and further added the contents in para No.3. The 1st respondent is a law abiding citizen and on 11-06-2007 his marriage was performed by his parents with one Thunga Sailaja of Kandukuru village of

Khammam District. They lead happy marital life for one month and later she deserted him and the efforts made by the elders turned futile. Subsequently, the 1st respondent settled at Hyderabad who joined at Hetro Drugs Factory at

Hyderabad. His parents and brother who were searching for him failed in their attempt. Later, in the month of February, 2010, he found his parents and informed that he settled at Hyderabad. Later his parents called him to

Yerrampalli Village. In the 1st week of September, 2010, he took his father to Ashram Hospital, where he developed acquaintance with one 6

Rushirao, who is the brother-in-law of the complainant, Prajashakthi Reporter at Pedavegi Mandal who collected address from him. The brother-in-law of complainant used to visit his house whenever he required to work at

Prajashakthi Office at Hyderabad. Later, on 17-09-2010 the father of the 1st respondent died and after 40 days of his father's death, his mother died. The 1st respondent again joined in the same company at Hyderabad. The brother- in-law of complainant came to his house at Hyderabad and stayed there for three days or more. Again the said Rushirao came to his house along with the complainant in search of a job and the 1st respondent used to leave his keys on account of his job. On 17-08-2012 at 7.30 p.m., the 1st respondent returned to his house after discharging his functions and went to Gokul

Theater to watch second show and returned in midnight. Both the complainant and K.Rushirao were indulged in illegal activities in his room.

Then, he warned them and the surrounding people also supported 1st respondent by which time, K.Rushirao threatened them saying that he would see the end of 1st respondent and on the next day during early hours the complainant having felt disgrace, for the above reason intentionally consumed lizol and the said Rushirao advised the first respondent to take her to hospital who suggested the name of 1st respondent as the husband of complainant illegally and since then started blackmailing the 1st respondent . SubsequenT to the year, 2017, the 1st respondent maintained good relations with his brothers and sisters who started residing separately.

4.The DVC was dismissed against the respondents 4 and 5 as per the docket order dt. 18-09-2014.

5.Based on the above contentions of both parties, the Trial Court framed the following points for consideration:

(i)Whether the complainant established by positive and dependable proof to show that her parents parted with the 7 dowry amount of Rs.50,000/- to RW1 at the time of marriage and if so, whether she is entitled to claim back?

(ii)Whether RW1 caused untold misery, sorrow and pain to PW1 without providing sustenance to her in spite of having financial resources and if so, whether she is entitled to claim monetary relief from the first respondent by living separately?

6.During the course of enquiry, the complainant got herself examined as PW1 and the supporting witnesses were examined as P.Ws.2 to 5 and Exs.P1 to P7 were exhibited. On behalf of respondents, the 1st respondent got himself examined as RW1 and the supporting witnesses were examined as R.Ws. 2 to 6 and no documents were exhibited on their behalf.

7.Initially the complaint was filed by the complainant before the II

Additional Judicial Magistrate of First Class, Eluru, in DVC No.9/2014 and later

as per the orders of Principal District Judge, W.G., Eluru, the case was transferred to Judicial Magistrate of First Class, Special Mobile Court, W.G.,

Eluru and renumbered as DVC No.10/2014.

8.The learned Trial Court after appreciating the oral and documentary evidence let in by both parties allowed the case of the complainant by directing the 1st respondent to return dowry amount of

Rs.50,000/- to the complainant besides giving direction to 1st respondent to pay monthly maintenance @ Rs.5,000/- to the complainant while directing the respondents 2 and 3 not to interfere into the personal freedom and space of PW1. Being aggrieved by the finding of the learned Trial Court, the respondents preferred this appeal on the following grounds:

The appellants mainly contended that the complainant filed the complaint by misusing the provisions of Domestic Violence Act though she miserably failed to produce evidence to prove her marriage or the alleged 8 divorce with her previous husband. The appellants were subjected to harassment by the complainant. It is contended that the Trial Court should have noticed that the complainant has not produced marriage certificate as she contends that her marriage was performed as per Christian rites and customs. The alleged photographs are nothing but electronic and trick photographs showing the marriage of complainant and 1st respondent which are unbelievable. She has not produced a scrap of evidence to show as to where she resided exactly with the 1st respondent. Mere incurring expenditure by 1st respondent is not a proof of marriage. The complainant failed to prove the alleged dissolution of her marriage with her previous husband. It is further contended that the Trial Court erred in granting return of dowry when none of the witnesses placed valid evidence showing giving of dowry as PW2 herself admitted that marriage negotiations were held at her house but she does not know the dowry aspect. It is further contended that the complainant failed to produce cogent evidence to show that the 1st respondent and herself lived together under one roof at a particular place.

When the Trial Court found that the respondents 4 and 5 are not guilty for the offences under Domestic Violence Act, certainly, the other respondents also should be treated as innocent. When the alleged solemnization of marriage could not be proved by the complainant giving of alleged dowry does not arise. It is lastly contended that the Trial Court committed error in taking into account the case filed U/Sec. 498-A of IPC., as a base to establish the acts of violence.

9.Heard the learned counsel for the appellants and respondent.

10.After having heard the rival contentions of both sides and perusing the evidence on record, the points that arise for consideration are as follows:-

1. Whether the complainant is entitled to get the relief of

return of dowry amount of Rs.50,000/-, compensation of

9

Rs.5,00,000/-, alternative accommodation or monthly rent @

Rs. 3,000/- including costs of litigation of Rs.20,000/-?

2. Whether the order of maintenance granted by the Trial Court in favour of petitioner/complainant is sustainable?

3. Whether there are any grounds to interfere with the findings

of the learned Judicial Magistrate of First Class, Special Mobile

Court, W.G., Eluru?

4. To what relief?

11.Point No.1: Though the learned counsel for the petitioner/complainant in Trial Court argued that the Trial Court failed to direct the respondent to pay compensation of Rs.5,00,000/-, to give direction to 1st respondent to provide alternative accommodation or to pay

Rs.3,000/- per month towards rent including costs of litigation, any amount of evidence relating to the above referred prayers other than return of alleged dowry amount cannot be considered and need not be discussed as the complainant in Trial court had not filed any appeal challenging the finding of the learned Trial Court by contending that the evidence of 1st respondent/1st complainant and supporting witnesses was not appreciated.

12.The learned Trial Court directed the 1st respondent to return the alleged dowry amount of Rs.50,000/- to P.W.1. The learned counsel for the complainant argued that when the marriage of the complainant was performed with the 1st respondent, the parents of the complainant gave

Rs.50,000/- towards dowry.

13.By way of reply the learned counsel for appellants/respondents in

Trial Court argued that the complainant failed to prove the performance of marriage between herself and 1st respondent who misused the provisions of

DVC, by filing report to police basing on which Ex.P4-FIR in Cr.No.156/2004 was registered and subsequently, Ex.P2-charge sheet was filed against the respondents. He further argued that the complainant did morphing of photographs of 1st respondent besides arguing that when the brother-in-law 1 0 of complainant viz., Rushirao who is a Journalist and complainant came to his house at Hyderabad, he had taken photographs of 1st appellant and complainant in various angles and did morphing of the photographs as if the marriage of the complainant was performed with the 1st respondent besides teasing the 1st respondent that the photographs are showing as if the marriage of the complainant was performed with the 1st respondent. The counsel further argued that when the 1st respondent found both of them committing an illegal act in his room at Hyderabad, he questioned him who in turn threatened the 1st respondent saying that he would see his end and on the immediate next day the complainant consumed lizol and WHEN she was admitted in the hospital, Rushirao furnished the name of 1st respondent as the husband of complainant though there is no such relation in between the complainant and 1st respondent.

14.The complainant who reiterated her contentions stated in her evidence that her marriage with the 1st respondent had taken place on 15- 05-2012 at Chodimella Village by which time her parents presented

Rs.50,000/- towards dowry. She exhibited Ex.P.1-bunch of photographs. In the cross-examination PW1 denied the suggestion that no dowry was parted with at the time of marriage. The close relatives of PW1 were examined as P.Ws. 2 to 4 and their evidence is almost similar to the evidence of PW1 regarding the performance of her marriage, giving dowry, the alleged promise said to have been made by elders to give balance of Rs.20,000/- subsequent to the marriage of PW1 with the 1st respondent etc. PW3 stated in the cross- examination that he was not physically present when the dowry amount was paid to 1st respondent by the parents of the complainant.

15.Though the learned counsel for the complainant argued that the oral evidence of P.Ws. 1 to 5 is quite convincing to show that the parents of complainant gave dowry amount of Rs.50,000/- from out of agreed amount 1 1 of Rs.70,000/-, except the oral evidence of P.Ws. 1 to 5, there is no documentary evidence to support the same. Therefore, the order of learned

Trial Court wherein the 1st respondent was given direction to return the alleged dowry amount of Rs.50,000/- is liable to be set aside. The other reliefs are concerned, the finding of the learned Trial Court holds good as no cross-appeal was filed by the complainant. Accordingly, point No.1 is answered in favour of appellants holding that the complainant failed to prove that Rs.50,000/- was given towards dowry to 1st respondent at the time of their marriage.

16.Point No.2: The learned counsel for the complainant argued that the learned Trial Court rightly directed the 1st respondent to pay maintenance @ Rs.5,000/- per month to the complainant. By way of reply, the learned counsel for appellants 1 to 3/respondents 1 to 3 argued that the

Trial Court erroneously granted maintenance to the complainant though the complainant miserably failed to prove the performance of her marriage with the 1st respondent. He further argued that the complainant got married a person by name Katuri Sarveswara Rao and their marital relation has been subsisting and so she never continued her relation with the 1st respondent and there is no domestic relationship as they never lead life in the nature of live in relationship who failed to file marriage certificate which is mandatory to prove her marriage, as her alleged marriage with the 1st respondent was performed according to Christian rites and customs. He further argued that

Ex.P1-photographs do not prove domestic relationship in between the complainant and 1st respondent.

17.By way of reply the learned counsel for the complainant argued that the 1st respondent already married one Sailaja and obtained divorce from her and later on the complainant by taking customary divorce from her 1st husband as shown under Ex.P6 lead marital life with the 1st respondent 1 2 whose marriage is proved by Ex.P1-photographs, corresponding CD. The counsel further argued that the complainant discharged the initial burden and it is for the 1st respondent to disprove the same by letting positive evidence i.e., by taking steps to send Ex.P1-photographs to expert so as to prove his alleged contention that Ex.P1-photographs were duly morphed.

17.The evidence of PW1 shows that her marriage with the 1st respondent was performed on 15-05-2012 at Chodimella village by her parents. ExP1-photographs show that her marriage was performed with the 1st respondent.

18.RW1 who reiterated his case stated in the cross-examination that

Ex.P1 -photographs show his presence besides admitting that his brothers are seen in Ex.P1 photographs including the presence of PW1/complainant.

He further stated that he was unable to produce evidence to show that Tunga

Sailaja is his legally wedded wife besides expressing his ignorance about dissolution of his marriage with Sailaja in HMOP 41/2010 on the file of Senior

Civil Judge, Sattupalli. He admitted that he paid Rs.50,000/- to his former

wife towards permanent alimony while denying suggestion that his marriage with his 1st wife was dissolved on 15-05-2012.

19.R.Ws. 2 to 5 who are the alleged elders stated in their evidence that 1st respondent married Tunga Sailaja and has been leading marital life till today though it is not the contention of the 1st respondent that both himself and his 1st wife have been living together. Similarly, they stated that

PW1 never came to their village and they never saw her besides stating that there is no domestic relation in between PW1 and 1st respondent. Whereas

RW3 stated in his evidence that the farmer wife of the 1st respondent viz.,

Sailaja filed HMOP 41/2010 on the file of Senior Civil Judge, Sattupalli, seeking dissolution of marriage and that the same was dissolved. He further 1 3 stated that at about three years ago, RW1 obtained divorce from Sailaja.

RW4 also stated that RW1 paid Rs.50,000/- towards permanent alimony to

Sailaja including RW5. RW6 stated in his evidence that there is no domestic relation in between PW1 and RW1 and that the former wife of RW1 obtained divorce from him through the process of court.

20.Since, the 1strespondent has been disputing domestic relationship in between himself and the complainant, the burden lies upon the complainant to prove the existence of valid marriage in between herself and 1st respondent. The complainant relied upon Ex.P1-photographs, corresponding CD showing the performance of her marriage with the 1st respondent, the presence of brothers of 1st respondent at the time of her alleged marriage besides relying upon Ex.P6 alleged divorce deed to show the dissolution of marriage between herself and her 1st husband viz., Katru

Sarveswara Rao on 12-07-2011.

21.The counsel for respondents argued that when the alleged marriage between complainant and 1st respondent was performed as per

Christian Marriage rites and ceremonies, the complainant has to file marriage certificate. However, if the complainant proves that there is a domestic relationship in between herself and 1st respondent by proving that there was a live in relationship in between them it can be termed as domestic relation.

In the cross-examination RW1 stated that PW1 consumed Lizol to end her life and that he incurred medical expenses besides stating that Rushi rao did not incur medical expenses. The learned Trial Court rightly held that there is a domestic relation in between the complainant and 1st respondent as the very incurring of medical expenditure by the 1st respondent proved the existence of marital relation in between himself and complainant including Ex.P1- photographs. Moreover, RW1 also stated in the cross-examination that he was told that PW1 obtained customary divorce before elders while denying 1 4 the suggestion that he took PW1 to Hyderabad and lead marital life. Though the learned counsel for respondents argued that Ex.P6 was not filed by the complainant at the time of filing complaint still the contents of complaint go to show that her marriage with her 1st husband was dissolved and later on her marriage was performed with the 1st respondent.

22.The complainant stated that the 1st respondent used to suspect her character, used to keep her inside the house under lock, used to demand her to bring additional dowry and forcibly administered lizol due to which, she got vomitings and again on 20-08-2013 also after administering lizol he necked her out etc. Her evidence further shows that she filed PLC 92/2013

before Lok-Adalat and ultimately, after registering crime against the 1st

respondent she filed DVC. Her evidence further shows that she has been taking shelter at her sister's house and that she is physically weak and unable to maintain herself. Therefore, her evidence proved that she has no means to maintain herself.

23.Ex.P4 is the report given by the 1st respondent against the complainant and one K.Riksha Rao, wherein he stated that he has been working as a clerk in Hetro Company Medical Parcel section. It shows that the respondent has got sufficient means. The complainant stated in her evidence that the 1st respondent has been working as a clerk in Hetro Company Ltd.,

Hyderabad and owns Ac.5.00 cents of land at Yerrampalli, Chintalapudi

Mandalam and getting Rs.30,000/- per month. When PW1 was cross- examined nothing was suggested to PW1 denying the means of respondent.

Since, the complainant/PW1 has been living away from RW1 by facing domestic violence in the hands of respondents and as she has no means to maintain herself, the 1st respondent is under an obligation to provide maintenance to her. The learned Trial Court rightly granted maintenance @ 1 5

Rs.5,000/- per month to the complainant. Accordingly, Point No.2 is answered against the appellant No.1.

24.Point No.3:The finding of the learned Trial Court with regard to direction given to 1st respondent to return dowry amount of Rs.50,000/- to the complainant is liable to be set aside and there is no need to interfere with the finding of the learned Trial Court regarding the direction given to 1st respondent to pay maintenance @ Rs.5,000/- per month to the complainant.

Accordingly, point No.3 is answered.

25. Point No.4: In the result, the appeal is partly allowed by setting aside the orders passed by the learned Trial court in DVC No.10/2014, dt.03- 11-2015 to the extent of direction given to 1st respondent to return dowry amount of Rs.50,000/- to the complainant, while confirming the order of learned Trial Court directing 1st respondent to pay maintenance @ Rs.5,000/- per month to PW1/complainant

Typed to my dictation, corrected and pronounced by me in open Court, this the 31 st day of March, 2018.

JUDGE, FAMILY COURT- CUM- VII ADDL.DIST&

SESSIONS COURT, WEST GODAVARI, ELURU.

APPENDIX OF EVIDENCE

No oral and documentary evidence is adduced on either side.

VII A.D.S.J.,

W.G., Eluru. Copy to: The Judicial Magistrate of First Class, Special Mobile Court, W.G., Eluru, along with entire record in DVC No.10/2014.

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VII ADJ, W.G., ELURU.

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE 

 WEST GODAVARI :: ELURU

PRESENT:­ Smt.Siripurapu Sreedevi, 

Judge, Family Court ­cum­ VII Additional District Judge, W.G., Eluru

Friday, this the 6th day of April, 2016.

APPEAL SUIT No.21/2016

Between:

Smt.Koppaka Parvathi ...Appellant/Plaintiff...

Vs., 

Koppaka Suryanarayana ...Respondent/Defendant.

On appeal filed against the decree and judgment dated 04.11.2015 passed in O.S.No.263/2011, on the file of Senior Civil Judge,

Tadepalligudem.

Between:­

Smt. Koppaka Parvathi...Plaintiff...

Vs., 

Koppaka Suryanarayna ....Defendant...

This appeal is coming on 04­04­2018 for final hearing before me in the presence of Sri D.S.V.Manikyala Rao, Advocate for the Appellant and of Sri B.Varahala Rao, Advocate for the Respondent and having stood over for consideration till this day, the Court delivered the following:

J U D G M EN T

The plaintiff is the appellant herein who preferred this appeal being aggrieved by the judgment and decree passed by the learned Senior Civil Judge, Tadepalligudem in O.S.No.263/2011, dt.04.11.2015 against the defendant. The parties to the appeal hereinafter will be referred as plaintiff and defendant as arrayed in the trial court.

2.The brief case of the plaintiff who filed suit against the defendant for enhancement of maintenance from Rs.1,000/­ to 2

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VII ADJ, W.G., ELURU.

Rs.9,500/­ per month is as follows:­ 

The marriage of the plaintiff with the defendant was solemnized on 24­12­1986 and the defendant is the only son to his parents. The family of the defendant got substantial ancestral properties. The father of the defendant died intestate. The parents of the plaintiff got three sons and five daughters and the plaintiff is the youngest daughter of her parents. The plaintiff kept all her gold ornaments for the safe custody with her mother­in­law and both the plaintiff and defendant lived in the ancestral house of defendant after their marriage. The defendant and his mother subjected her to harassment by demanding for additional dowry and in spite of the mediations the defendant and his mother did not listen. The defendant and his mother necked out the plaintiff from matrimonial home at Mupparthipadu and on account of shock her father expired. Subsequently, the plaintiff came to know that the defendant contacted 2nd marriage. The plaintiff filed the case for the alleged offences U/Secs. 498­A and 494 of IPC, which was numbered as

C.C.No.351/1991 wherein, the defendant and others were convicted and the appeal in Crl.Appeal.No.169/1996 preferred by them was also dismissed and the defendant was enlarged on bail in C.C.No.351/1991.

Later, he developed illegal contact with one Danamma and he murdered the said Danamma. The said case was numbered as S.C.No.300/1993, which was ended in conviction. The plaintiff was forced to stay with her mother after the demise of her father. As she could not maintain herself she filed O.P.No.27/1991 which was numbered as O.S.No.91/1996 for the return of dowry, maintenance etc., which was partly decreed on 21­ 10­2002, wherein the plaintiff was granted annual maintenance @

Rs.12,000/­ and a charge was also created in respect of plaint 'A', 'B', 'C' 3

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schedule properties therein. The mother of the defendant preferred an appeal at a belated stage with delay condonation petition and appeal is not yet numbered. The plaintiff while executing the decree brought

Ac.1.00 cents of land for sale and one Indukuri Rama Krishna Raju became the successful bidder. The plaintiff received the cheque in respect of the amount claimed in E.P. For subsequent period she filed execution petitions and still the defendant is liable to pay arrears of maintenance. Subsequent to the demise of her mother, she got herself shifted to Tadepalligudem and has been depending upon the mercy of house owner, nearest relatives and neighbours who are providing hand loans to her. The plaintiff was granted white ration card. The plaintiff has been depending upon the maintenance granted in O.S.No.91/1996 who has no other source of income. The cost of living has been rapidly increased and the maintenance granted in O.S.No.91/1996 is not sufficient. The defendant has not paid any amount to the plaintiff from the date of decree.

The defendant owns substantial landed properties at

Mupparthipadu wherein he raises paddy crop twice in an year and the income being derived by the defendant from the agricultural lands has been increased by the usage of new techniques and the defendant has been getting Rs.5,00,000/­ per month towards his share. The defendant can raise crops thrice in an year in the lands owned by him after Dalwa crop. The defendant got sufficient capacity to pay maintenance to the plaintiff as he is the only son to his parents and he has no liabilities.

3.The defendant filed written statement praying the court to dismiss the suit by denying the averments made in the plaint specifically and the brief contents of it are as follows:­ 4

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VII ADJ, W.G., ELURU.

It is mainly contended that the suit is not maintainable and 'ABC' schedule properties in O.S.No.91/1996 are standing in the name of mother of defendant, except 4th and 6th items of plaint 'B' schedule properties which were brought for sale. The plaintiff recovered the entire arrears of maintenance by filing execution petition. The defendant is not liable to pay any arrears. It is further contended that the Hon'ble High

Court granted stay against the properties which are standing in the name of mother of defendant viz., Koppaka Damayanthi in

A.S.M.P.No.372/2006 in A.S.S.R.No.3075/2003 on 24­02­2006. The defendant was never in possession of the plaint schedule properties shown in O.S.No.91/1996 except item Nos. 4 and 6 of plaint 'B' schedule. Therefore, the defendant has no landed properties. He has been getting Rs.1,000/­ per month by attending coolie work who has been living separately away from his mother. The plaintiff owns Ac.2.00 cents of wet land at Korumamidi Village and she gets two crops per annum. She used to raise sugarcane and thereby get lakhs of rupees.

She also owns house property at Kommugudem village and she used to reside in a rented house at Tadepalligudem by paying rent @ Rs.2,000/­ per month. The reasons assigned for claiming enhancement of maintenance are not correct. The court cannot enquire into the properties of the defendant again except the change of circumstances as already the court enquired the means of defendant.

4.Based on the pleadings, the trial court framed the following issues for trial:

1.Whether the plaintiff is entitled the suit claim as prayed for?

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2.To what relief?

5.During the course of trial, the Plaintiff got herself examined as P.W.1, the supporting witness was examined as P.W.2 and Ex.A.1 was exhibited on behalf of the plaintiff. The defendant got himself examined as D.W.1 and no documents were exhibited on behalf of the defendant.

6.The learned Senior Civil Judge, Tadepalligudem, after considering the pleadings and evidence of both parties, partly decreed the suit on the premise that it is the duty of the husband to maintain the wife whether she got sufficient means or not.

7.The appellant/plaintiff challenged the judgment of trial court on the following grounds.

It is mainly contended that the Trial Court ought to have disbelieved the contention of the defendant who stated that he has been getting Rs.30/­ per day. The plaintiff already discharged the burden of proof that rests upon her and the Trial Court should have held that the defendant failed to discharge his burden. The grant of maintenance and creation of charge over plaint 'ABC' schedule properties in earlier suit are sufficient to show that the defendant owns properties. It is further contended that the Trial Court erroneously came to a conclusion that the plaintiff is a rich woman as it is not the case of defendant that she owns

Ac.6.00 cents of land and RCC building. The Trial Court should have considered that the defendant would get Rs.300/­ per day instead of considering the same as Rs.100/­ per day. The lower court did not assign any reason for enhancing compensation only up to Rs.1,500/­ 6

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VII ADJ, W.G., ELURU.

from Rs.1,000/­ from the date of judgment instead of enhancing the same from the date of filing of the suit. The Trial court should have considered that the entire properties are the ancestral properties of defendant who has no other dependants except the plaintiff. The plaintiff has no properties either movable or immovable and she was exempted from paying court fee by Chairman, Taluk Legal Services Committee,

Tadepalligudem. 

8.Heard the learned counsel for appellant. Arguments on behalf of respondent are treated as heard.

9.The learned counsel for the appellant argued that the trial court instead of enhancing maintenance from Rs.1,000/­ to Rs.9,500/­ per month enhanced the maintenance only up to Rs.1,500/­ from

Rs.1,000/­. Earlier the court granted maintenance @ Rs.1,000/­ per month on 21­10­2002 in O.S.No.91/1996. The counsel further argued that the defendant caused many hurdles when the plaintiff tried to execute the decree by filing E.P., and by getting the properties of defendant auctioned who recovered the maintenance amount covered by

E.P., from sale proceeds and she also filed E.P for subsequent periods but the defendant has not paid maintenance.

10.Having heard the rival contentions of the learned counsel for both parties and on perusal of the material on record, the points that arise for consideration are as follows:­

1.Whether the plaintiff is entitled to claim enhancement of maintenance from Rs.1,000/­ to Rs.9,500/­?

2. Whether there are any grounds to interfere with the findings of the learned Senior Civil Judge, Tadepalligudem?

3. To What relief?

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11.POINT No.1:­ PW1 and DW1 reiterated their respective pleadings during the course of their evidence in all material particulars.

There is no dispute about the marital relationship in between the plaintiff and defendant and there is no dispute that earlier the plaintiff was granted maintenance @ Rs.1,000/­ per month in O.S.No.91/1996. The said decree was passed on 21­10­2002. The plaintiff filed the present suit in the year, 2011 i.e., after a gap of 9 years. The defendant contended that no enquiry shall be conducted regarding his means as already the same was decided in O.S.No.91/1996. But, whenever the plaintiff files any suit for enhancement of compensation the court can look into the evidence let in by the plaintiff regarding the means possessed by the defendant during the pendency of suit proceedings where the relief of enhancement of maintenance is sought for and also the means possessed by the plaintiff. In the cross­examination the plaintiff denied the suggestion that she brought all the properties of defendant for sale.

Whereas DW1 stated in his evidence that the properties covered by

R.S.No.631/7 consisting Ac.0.02 cents of land, R.S.No.632/7 consisting

Ac.0.04 cents of land, R.S.No.635/4 consisting Ac.1.36 cents of land,

R.S.No.632/5 consisting Ac.0.64 cents of land, R.S.No.631/13 consisting

Ac.0.26 cents of land and the property covered by R.S.No.635/3 consisting Ac.0.84 cents of land situated at Upparthipadu village are his properties, which proved that his contention that his entire properties were sold away in public auction during the initiation of execution proceedings by the plaintiff is not correct. Similarly, he stated that the lands situated at Mupparthipadu are suitable to raise paddy crops. He further stated that the value of one paddy bag weighing 75 Kgs is

Rs.1,000/­ besides stating that from each acre 25 bags of paddy will be 8

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produced. Therefore, the contention of the defendant that he possessed only Ac.0.50 cents of land in R.S.No.635/3 and Ac.0.52 1/2 cents of land in R.S.No.632/5 at Pippara village which were brought for sale and that he has no other properties is proved to be false. 

12.The defendant pleaded in his written statement that the plaintiff got Ac.2.­00 cents of wet land at Korumamidi village and also owns a house at Kommugudem Village. Though P.W.2 stated that the plaintiff owns Ac.1.00 cents of land and Five acres of land by the said of his land and that she owns RCC building, basing on the said evidence, the plaintiff cannot be denied of her right to claim enhanced maintenance as it is not the case of the defendant that she owns Ac.6.00 cents of land. Even in the cross­examination of PW1 also she denied the suggestion that she gets Rs.2,00,000/­ from out of Ac.2.00 cents of land.

Therefore, the evidence of PW2 can be taken as a stray evidence regarding the means of plaintiff for the reason that the defendant failed to furnish the survey number in which the plaintiff alleged to have owned the said Ac.2.00 cents of land and failed to furnish the door number of the house said to have been owned by the plaintiff. 

13.Originally the earlier suit was decreed on 21­10­2002 which was exhibited as Ex.A1 and the present suit was filed in the year, 2011 and the plaintiff need not specifically say the change of circumstances as every one knows that definitely the cost of living has been increased and the court can take the judicial notice of it and the defendant cannot say that the plaintiff is not entitled to claim enhanced maintenance as she filed this suit after a gap of 9 years who is expected to lead the standard 9

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of life equal to that of her husband with reference to food, shelter and clothing. Though the Trial Court granted enhanced maintenance of

Rs.1,500/­ from Rs.1,000/­ it is not sufficient to meet the needs. This court does not want to reiterate the details of cases filed against the defendant by the plaintiff as the issue involved in this case is very simple where the only point that has to be answered is whether the enhanced maintenance granted to her by the Trial Court is sufficient due to change of cost of living, standard of living. Certainly, the plaintiff is entitled to get enhanced maintenance of Rs.3,000/­ per month from Rs.1,000/­ as it is very meager by the time of filing the present suit which was decreed in the year, 2015. She is entitled to get the enhanced maintenance from the date of judgment i.e., from 04­11­2015. Accordingly, point No.1 is answered in favour of appellant.

14.Point No.2:  The learned Trial Court rightly decreed the suit by holding that the plaintiff is entitled to get the relief of enhanced maintenance though the Trial Court erred in granting enhanced quantum of maintenance @ Rs.1,500/­ per month only which is liable to be set aside. 

15.Point No.3: In the result, the appeal is partly allowed by setting aside the judgment of the lower court in O.S.No.263/2011 to the extent of quantum of enhancement of maintenance in

O.S.No.263/2011by directing the defendant to pay maintenance @

Rs.3,000/­ per month to the plaintiff from the date of judgment i.e., from 04­11­2015 instead of Rs.1,000/­ per month.

The appellant is directed to pay court fee as she preferred this appeal by obtaining court fee exemption certificate from Secretary, Senior 10

A.S.NO.21/2016

VII ADJ, W.G., ELURU.

Civil Judge, District Legal Services Authority, Eluru, on 18­06­2016. 

Office is directed to prepare decree only after collecting court fee from the appellant. 

Typed to my dictation directly on the computer, corrected and pronounced by me in open Court, this the 6th day of April, 2018.

VII ADDL.DISTRICT JUDGE,

 WEST GODAVARI, ELURU.

No oral or documentary evidence is adduced on either side.

VII A.D.J.,

W.G., Eluru.

Copy to: The Senior Civil Judge's Court, Tadepalligudem, along with entire record

 O.S.No.263/2011.

11

A.S.NO.21/2016

VII ADJ, W.G., ELURU.

Appeal presented on: 27-01-2016, 01-03-2016 Appeal filed on: 31-03-2016

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE

WEST GODAVARI :: ELURU

PRESENT:- Smt.Siripurapu Sreedevi,

VII Additional District Judge,

W.G., Eluru,

Friday, this the 6th day of April, 2018.

APPEAL SUIT No.21/2016

Between:

Smt.Koppaka Parvathi W/o. Suryanarayana, Hindu, female, aged 46 years, r/o. D.No.3-40-2, Subbaraopet, Tadepalligudem, TPGSCJ

...Appellant/Plaintiff….

Vs.,

Koppaka Suryanarayana S/o. Late China Satyam, Hindu, Male, aged 54 years, Cultivation, R/o. Mupparthipadu, Ganapavaram Mandal, TPGSCJ

...Respondent/plaintiff...

On appeal filed against the decree and judgment dated 04-11- 2015 in O.S.No.263/2011, on the file of Senior Civil Judge’s Court,

Tadepalligudem.

Between:

Smt.Koppaka Parvathi 12

A.S.NO.21/2016

VII ADJ, W.G., ELURU.

...Plaintiff….

Vs.,

Koppaka Suryanarayana

...Defendant...

This appeal is preferred against the decree and judgment in

O.S.263/2011 dt.04-11-2015 on the file of Senior Civil Judge’s Court,

Eluru.

2. Value of the suit in Lower Court:

The suit is valued U/Sec.22(b) of the Andhra Pradesh Court Fees and

Suits Valuation Act, 1956 is as follows:

The plaintiff is seeking relief of enhancement of maintenance from

Rs.1,000/-

Per month to Rs.9,500/- or from Rs.12,000/- to Rs.1,14,000/- per annum i.e., Rs.8,500/- per month or Rs. 1,02,000/- per annum.

The enhancement of maintenance is Rs.8,500/- x 12 = Rs.1,02,000/- per annum and so a court fee of Rs.3,526/- is payable Under Schedule

I, Article (b) & (c) of A.P.Court Fees and Suits Valuation Act, 1956.

Initially the appellant was exempted from paying court fee as per the certificate issued by DLSA, Eluru, dt. 18-02-2016. As per the orders of this court, the appellant paid costs of Rs. Vide S.R.No. /dt.

This appeal is coming on 04­04­2018 for final hearing before me in the presence of Sri D.S.V.Manikyala Rao, Advocate for the Appellant and of Sri B.Varahala Rao, Advocate for the Respondent, and this

Court DOTH ORDER AND DECREE as follows:

i) That the appeal be and the same is hereby partly allowed by setting aside of judgment of the lower court in O.S.No.263/2011 to the extent of quantum of enhancement of maintenance in

O.S.No.263/2011 by directing the respondent/defendant to pay

maintenance @ Rs.3,000/- per month to the appellant/plaintiff from the date of judgment i.e., from 04-11-2015 instead of Rs.1,000/- per month ; ii) That there is no order as to costs; 13

A.S.NO.21/2016

VII ADJ, W.G., ELURU.

Given under my hand and the seal of the Court, this the 6 th day of

April, 2018.

VII ADDL.DISTRICT

JUDGE,

WEST GODAVARI, ELURU.

MEMORANDUM OF COSTS

FOR APPELLANTSFOR RESPONDENT

No costs memo is filed1.Stamp on vakalat 2-00

2. Stamp on petitions: 10-00 3.Advocate fees: 5,000-00

TOTAL COSTS

ALLOWED : Rs.5,012-00

VII A.D.J.,

W.G., Eluru.