Smt T. Ramani Krupavathi

IN THE COURT OF THE V ADDITIONAL DISTRICT JUDGE :: ONGOLE

Present:: Smt. T. Ramani Krupavathi,M.A.,B.L., VII- Additional District Judge, Ongole. FAC-V Additional District Judge, Ongole.

Wednesday this the 4rd day of November, 2015.

O.S.No.265/2011

Between 1.Bandaru Rambabu S/o.Seetharamaiah, aged 49 years, Hindu, R/o.Mulaguntapadu Village, Singarayakonda Mandal, Prakasam District 2.Syed Khadar Basha @ Sardhar S/o.Mahaboob Saheb, Aged 61 years, Muslim, R/o.Mulaguntapadu Village, Singarayakonda Mandal, Prakasam District 3.Shaik Abdul Khadar S/o.Karim Mohiddin, aged 53 years, Muslim, R/o. Singarayakonda (V & M),

Prakasam District ....... Plaintiffs

AND 1.Shaik Hameedunnisa W/o.Chand Saheb,aged 55 years, Muslim,R/o.Thettu Village, Gudlur Mandal, Prakasam District 2.Shaik Mustarunnisa W/o.Sabjan Saheb, aged 30 years,

Muslim, R/o.Navabu Pet, Nellore Town, Nellore District....... Defendants

This suit is coming on 29.10.2015 for final hearing and disposal

before me in the presence of Sri P.L.Govindaiah, Advocate for Plaintiffs

and of M/s.G.J.Raju and Smt.Chiluka Latha, Advocates for the defendants, on perusal of material on record and upon hearing the counsel for both sides and having stood over for consideration till this day this court delivered the following:- // J U D G M E N T//

1. This suit is filed for specific performance of agreement of sale,

dated 26.7.2010 directed th defendants to execute a registered sale

deed in respect of the plaint schedule property in favour of the plaintiffs by receiving the balance of consideration of Rs.42,70,000/- failing which to have the same done through process of the Court or in alternative for refund of Rs.18,36,800/-, being the advance amount of Rs.14,00,000/- and interest of Rs.4,36,800/- and for costs.

2. The brief facts of the plaint are that the 1st defendant being mother and the 2nd defendant as her daughter, having joint share in the plaint schedule property offered to sell it to the plaintiffs and the bargain was settled for Rs.22,500/- per cent and Rs.56,70,000/- for total extent of

Ac.2.52 cents. The plaintiffs have paid Rs.14,00,000/- as advance on 26.07.2010 and obtained agreement of sale with a condition that they would execute the sale deed on or before 26.11.2010 after receipt of balance of consideration and there was jungle in the suit schedule property, the defendants have to get surveyed the land and finalize extents, fix boundaries with clear edges through the Mandal Surveyor, but the defendants were postponing to fulfill the conditions. Therefore, on 1.2.2011 a notice was issued to the defendants which was received by the 1st defendant, whereas the 2nd defendant got returned it with false endorsement and as the defendants have now been trying to sell it to third parties, they are constrained to file the suit.

3. After receiving the notice, defendants No.1 and 2 appeared

before this Court. While the 1st defendant filed her counter, 2nd defendant

has adopted the same. Though admitted the execution of agreement of sale the defendnts alleged that the Mandal Surveyor along with his two servants measured the suit land in the presence of plaintiffs on 2.11.2010 and fixed boundary stones and informed it to the plaintiffs over phone on 15.11.2010 but it was not mentioned in the reply notice and written statements by over sight, but informed it to the plaintiffs and waited till 26.11.2010 by producing original documents before th mediators. But the mediators told the defendants that the amount was not adjusted to the plaintiffs that is why they request time for paying balance of consideration. The schedule land is not a jungle land and it is fit for raising paddy crop. The plaintiffs never demanded the defendants to receive the balance of sale consideration and to execute the registered sale deed in their favour and if the plaintiffs are ready to pay the balance of consideration they would have deposited it any nationalized bank to show their readiness, but they did not do so and even they did not requested the defendants to extend time for payment of balance of sale consideration, so the plaintiffs themselves avoided to perform their part of contract within the time stipulated and hence the agreement of sale is hereby canceled and the amount already paid is forfeited and hence execution of registered sale deed or refund of advance amount does not arise and as the plaintiffs have not come with clean hands, they are not entitled for any relief and prayed to dismiss the suit with costs.

4. Basing on the pleadings the court settled the following issues :- 1.Whether the plaintiffs are entitled for specific performance of agreement of sale ? 2.Alternatively whether the plaintiffs are entitled for return of the advance amount as prayed for ? 3.To what relief?

5. After settlement of issues both parties agreed to enter into trial and on behalf of plaintiff P.Ws.1 to 4 examined and Exs.A1 to A16 marked. On behalf of defendants D.Ws.1 to 4 were examined and Exs.B1 to B6 were marked.

6. Heard both sides.

7. ISSUE NO.1 & 2 :- The case of the plaintiff is that he is the 2nd plaintiff in the suit. He stated that the defendants offered to sell the schedule land and the bargain was settled for Rs.22,500/- per cent between the plaintiffs and the defendants. The total extent of the schedule land is Ac.2.52 cents. The total value of the schedule land is

Rs.56,70,000/-. As per the bargain settled between the plaintiff and the defendant, the plaintiff paid an amount of Rs.14,00,000/- on 26.7.2010 to the defendants towards advance of sale consideration of the suit schedule land.

8.The defendants executed an agreement of sale jointly in favour of the plaintiffs on 26.7.2010 after receiving the advance of sale consideration. The defendants accepted to execute the sale deed on or

before 26.11.2010 by receiving the balance of sale consideration. After

that, P.W.1 stated that, prior to 26.11.2010 they approached the defendants number of times personally along with elders and requested them to execute registered sale deed in their favour by receiving the balance of sale consideration. Further contention of the plaintiffs is that the agreement of sale is executed by the defendants with the approximate extents in four survey numbers. There is jungle in the suit schedule property at the time of agreement of sale. The defendants have no correct idea of their boundaries, therefore, it was agreed between the plaintiffs and defendants to get survey the schedule land with the

Mandal Surveyor and finalize the extents and boundaries with clear edges as per the agreement of sale, but the defendants did not come forward to get measure the land, in spite of requests made by them. But the defendants did not receive the balance of consideration and to execute the sale deed in their favour. The defendants had been postponing to perform their part of contract on one ground or other without any valid reason. Further contention of P.W.1 is that they are always ready and willing to perform their part of contract by paying the balance of sale consideration under the agreement of sale, dated 26.7.2010 and to obtain regular registered sale deed and the same was informed to the defendants number of times. The defendants have not given proper reply to the plaintiffs.

9.Further contention of the plaintiff is that they got issued legal notice to the defendants on 1.2.2011 calling upon them to execute sale deed as per the terms of agreement of sale, dated 26.7.2010. The office copy of legal notice, dated 1.2.2011 not filed in the suit. The defendants received the legal notice on 4.2.2011. The 2nd defendant did not receive the legal notice and got it returned. Then, the 1st defendant got issued reply notice through her counsel with false allegations.

10.When the defendants have been trying to sell the schedule land to third parties to defeat their rights, they filed the present suit.

11.In support of his contention, 2nd plaintiff himself examined as

P.W.1 and he also examined 1st plaintiff B.Rambabu as P.W.2. P.Ws.3 and 4 are the independent witnesses.

12.The plaintiffs filed Ex.A1, agreement of sale dated 26.7.2010 which shows that the defendants are having Ac.2.52 cents of land and they agreed to sell it for Rs.22,500/- per cent and received Rs.14,00,000/- towards advance amount with a condition to register the sale deed after receiving the remaining sale consideration on or before 26.11.2010. But, there is a clause in Ex.A1 that defendants have to survey the land as per

FMB and cut the crosses, if any, by them. It is further stated in Ex.A1 that

Rs.10,000/- will be paid to the plaintiffs for clearance of the jungle.

13.So, it is the duty of the defendants to survey the land as per the FMB and they have to measure the land and they have to cut the crosses, if any. As seen from the entire evidence of thedefendants they have not surveyed the land according to FMB and measured the land and not cut the crosses, if any, before 26.11.2010. The 1st notice was issued by the plaintiffs to the defendants . But Ex.B1 is the notice issued by the defendants showing that they have measured the suit schedule property in the presence of the mediators on 15.11.2010 and informed the same to the plaintiffs and waited till 26.11.2010. But there is no proof before the Court to show that the defendants measured the land and informed the same to the plaintiff. It is pertinent to note that if the defendants measured the land, they have to measure the land in the presence of the plaintiffs or they have to sent a report of the Surveyor about the land.

Except the oral evidence and Ex.B1, there is no proof before the Court that the defendants surveyed the land in the presence of mediators. The defendants also filed Ex.B2, a letter to Tahasildar along with a challan

dated 13.10.2010. Notice also issued by the Mandal Surveyor showing

that he will survey the land on 2.11.2010. But the notice shows that the land was surveyed on 15.11.2010 (As per Ex.B1), statements were also recorded by the Tahasildar on 2.11.2010. But the Tahasildar, Gudlur, sent a letter, dated 14.8.2012 in RC/DT/197/2012 stating that the plaintiffs' land in Sy.No.231, 232 was surveyed and submitted report as per the

Arzee (Application), dated 26.4.2012. So, as per Ex.B6 the defendant filed an application on 26.4.2012. But Ex.B1 shows that the land was measured on 15.11.2010 and the statements were recorded on 2.11.2010. That means before the defendant filing the application for measuring the land, dated 26.4.2012 the notice was issued by the

Tahasildar showing that the Surveyor going to visit the land on 2.11.2010 and the statements Exs.B4 and B5 were recorded on 2.11.2010. This shows that the defendant filed the application on 26.4.2012 beyond the stipulated date in Ex.A1 and all the documents filed by her under Exs.B3 to B5 are earlier to her application dated 26.4.2012. So, the defendants did not perform their part of contract as per Ex.A1. Now going to the depositions of P.Ws.3 and 4, they support the contention of P.Ws.1 and 2.

So, as per the evidence of P.Ws. 1 to 4 and the documents filed by the plaintiffs go to show that the defendants failed to perform their part of duty.

14.Now, coming to the statements of defendants. Their contention is that the Mandal Surveyor and his servants measured the suit schedule property in the presence of the plaintiffs, defendants, the neighbouring boundary owners and the mediators on 2.11.2010. After measuring the suit schedule land it is found correct and fixed the boundary stones. Further contention of the defendants is that again the defendants informed the same to the plaintiffs by phone on 15.11.2010 and further stated that they have waited till 26.11.2010 by producing the original documents before the mediators. But the mediators told the defendants that the amount was not adjusted to the plaintiffs that is why requesting some time for paying the balance of amount. Further the defendants stated that the schedule property is cultivable land by raising paddy the crop and it is not a jungle land. Further defendants denied that the plaintiffs never demanded the defendants to receive the balance of sale consideration and to execute registered sale deed in their favour and if the plaintiffs are ready to pay the balance amount, they have to deposit the amount in any nationalized banks to show their readiness to perform their part of contract. Not depositing the money in any nationalized bank will show that the plaintiffs are not ready to perform their part of contract. Further, the defendants stated that the agreement of sale was executed on 26.7.2010 and the defendants also agreed to receive the balance of consideration under the agreement of sale before expiry of the prescribed time mentioned. But the plaintiffs failed to pay the balance amount within the prescribed period for four months and the plaintiffs never requested the defendants to extend the time for payment of balance of sale consideration. So, this amounts to violation of conditions mentioned in the agreement of sale. Further, the defendants contended that the plaintiffs intentionally avoiding and dragging on the matter for payment of balance of consideration till notice was issued on 1.2.2011, so, the plaintiffs failed to perform their part of contract for getting the registered sale deed from the defendants. They further contended that after the lapse of time the plaintiffs fabricated and created false allegations against the defendants for getting time. Time is essence of contract as mentioned in the agreement. The defendants were ready and willing to perform their part of contract before expiry of the stipulated date. They further contended that the agreement of sale is hereby canceled after the lapse of three months of time and the consideration which was paid by the plaintiffs was forfeited. They further contended that the plaintiffs have no right to demand the defendants to execute registered sale deed on the basis of the agreement and prayed the Hon'ble Court to dismiss the suit.

15.If we perused the documents and the evidence on behalf of the defendants, it shows that the land was measured on 2.11.2010. But the Tahasildar gave a report stating that the defendant filed the application on 26.4.2012. The stipulated time in the agreement is 26.11.2010. This shows that the defendants did not measure the land

before the stipulated time i.e., on 26.11.2010. Further, the defendants

stated in the notice issued by them to the plaintiff that the land was measured on 15.11.2010. Exs.B2 to B5 are earlier to her application

dated 26.4.2012. There is no corroboration among the documents filed

by the defendants. The application was filed by the defendant

dated 26.4.2012 and the land was measured on 2.11.2010. In the

notice issued, he stated that the land was measured on 15.11.2010. So, the contention raised by the defendants that they measured the land

before the stipulated time as mentioned in Ex.A1 is not correct. So, the

defendants themselves failed in performing their part of the contract.

16.Now, another contention raised by the defendants is that the plaintiffs are not ready with the money and if they have money they have to deposit the balance of sale consideration in any nationalized bank

before the stipulated time. At the outset I have to say that it is not a

condition in Ex.A1 that the plaintiffs have to deposit the balance of sale consideration in any nationalized bank before the stipulated time. If the plaintiffs did not come forward to perform their part of contract, it is the duty of the defendants to issue notice that plaintiffs did not come forward to perform their part of contract and so the agreement Ex.A1 is canceled. But, till filing of written statement the defendants did not issue any such notice to the plaintiffs canceling Ex.A1 and forfeiting the advance amount. It is not the head ache of the defendants to know the financial status of the plaintiffs, but It is the duty of the plaintiffs to pay the rest of the balance of consideration and to get the registered sale deed. But defendants can not question the plaintiffs or demand the plaintiffs as to why they have not deposited the balance of sale consideration in any nationalized banks and as they have no money to pay the balance of consideration and as such the terms and conditions of the contract is defaulted by the plaintiffs. It is the duty of the plaintiffs to pay the balance of consideration by 26.11.2010 and get the registered sale deed. It is true that the plaintiffs did not pay the balance of sale consideration on 26.11.2010. The explanation given by the plaintiffs is that as per the note in Ex.A1 the defendants have to get the land measured as per FMB and they have to cut the crosses and the plaintiffs have to clear the jungle by receiving a sum of Rs.10,000/- from the defendants. The two conditions of the defendants are not fulfilled. There is no proof before the Court that the defendants have fulfilled the two conditions as per their documents. The documents filed by the defendants are also not coinciding with each other. So, the defendants failed to perform their part of the duty. Of course the plaintiffs also failed to perform their duty in clearing the jungle by receiving the payment from the defendants. There is no proof before the Court that the plaintiffs have cleared the jungle.

17.Specific performance of contract is an equitable relief. But the contention of the defendants is that as the plaintiffs did not perform their part of contract, Ex.A1 agreement of sale is canceled and the advance amount is forfeited. There must be some conditions for forfeiting the money paid as part payment of purchase price and not as an earnest money. The counsel for the defendants filed a Judgment reported in (2013) 1 Supreme Court Cases (Civil) 483 their lordships held that :

“To justify the forfeiture of advance money being

part of “earnest money” the terms of the contract

should be clear and explicit”

So, in order to forfeit the earnest money the contract should have clear conditions. In Ex.A1 there is no condition about the forfeiting the advance amount paid by the plaintiffs. Further, their lordships held that if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply.

So, in Ex.A1 the amount paid by the plaintiffs are towards part payment of their consideration, so forfeiting of amount will not arise.

18.Specific performance is an equitable relief is having much bearing on the parties to Ex.A1. When the parties entering into agreement of sale are more cautious with regard to the terms and conditions in the agreement. The parties can not turn the agreement as they like and as such they mend their behaviour according to their terms.

The terms and conditions of the contract should be clear and they can not take shelter as they like under Ex.A1 where there is no terms and conditions properly. In the present case the defendant can not cancel the sale agreement as she likes without any clause in the agreement and also she can not forfeit the advance amount as she likes where there is no clause in the agreement.

19.The plaintiffs rightly filed the suit under the specific performance of contract with an alternative relief of refund of the advance amount. The plaintiffs filed this suit within the limitation. The plaintiffs filed this suit for specific performance of contract which is a discretionary power of the Court. The Court has to use the discretionary power and right in granting decree to the plaintiffs. As per Section 20 of the Act the relief of specific performance lies on the discretion of the

Court and the Court is not bound to grant such relief merely because it is lawful to do so and the exercising of discretion in order to specific performance has required to satisfy itself. The jurisdiction of the Court to grant specific performance is discretionary and the role of the parties is one of the most important factor to be taken into consideration while exercising the discretionary jurisdiction in terms of section 20 of the Act.

This Court meticulously considered all the facts and circumstances of the case. In the present suit the plaintiffs deposited the balance of consideration in the Court as per the directions of the Court. It shows that they are ready with money to perform their part of contract. Just because the plaintiffs not depositing the remaining amount in the nationalized banks, it does not mean that they do not have money to perform their part of contract. Moreover, while cross examining D.W.1 by the counsel for the plaintiffs, she categorically stated that she does not want to sell the property even now. Taking into consideration the statement made by

D.W.1 that she does not want to sell the property the plaintiffs are having only alternative relief. The defendants after receiving Rs.14,00,000/- towards the balance of consideration from the plaintiffs, they can not forfeit it as they like without there being any condition in Ex.A1. So, there is no condition in Ex.A1 about the forfeiture of the advance amount. It is the duty of the defendants to return back the amount to the plaintiffs as she does not want to sell the property to the plaintiffs. So, issues 1 and 2 have been decided in favour of the plaintiffs and against the defendants.

20. ISSUE NO.3 : As Issue Nos.1 and 2 are settled in favour of the plaintiffs, the plaintiffs are entitled for the suit amount as prayed for.

Accordingly suit is decreed with costs.

21. In the result, the suit is decreed partly with costs for a sum of

Rs.18,36,800/- with interest @ 18% p.a., from 26.07.2010, the date of agreement of sale till the date of decree and thereafter at 6% p.a. till realization. Rest of suit claim of the plaintiffs in respect of execution of regular registered sale deed basing on the agreement of sale, dated 26.7.2010 is dismissed.

Dictated to the Personal Assistant, transcribed by her corrected and

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

VII-Additional District Judge, FAC/V Additional District Judge, Ongole.

Appendix of Evidence

Witnesses Examined

For Plaintiffs:- For Defendants:-

P.W.1 : Syed Khadar Basha @ Sardhar D.W.1 : Hameedunnisa P.W.2 : Bandaru Rambabu D.W.2 : Sk.Bude Saheb P.W.3 : Sk.Rahamthulla D.W.3 : Jangala Mala Kondaiah P.W.4 : Shaik Sandhani Basha D.W.4 : Shaik Kalesha

Exhibits Marked

For Plaintiffs:-

Ex.A.1 / 26.07.2010 : Original sale agreement Ex.A.2 / - : Office copy of legal notice Ex.A.3 / - : Acknowledgement Ex.A.4 / - : Unserved R.P. Cover of 2nd defendant Ex.A.5 / 22.05.1978 : C/c of sale deed Ex.A.6 / 23.01.1989 : C/c of sale deed Ex.A.7 / 05.09.2011 : Letter given by the Syndicate Bank issued to 1st plaintiff

Ex.A.8 / 01.10.2011 : Letter issued by Andhra Pragathi Grameena Bank to 1st plaintiff Ex.A.9 / 29.09.2011 : Letter issued by Syndicate Bank to 3rd plaintiff Ex.A10/ 01.10.2011 : Letter issued by Andhra Pragathi Bank to 2nd plaintiff Ex.A11/ - : Syndicate Bank A/c statement of 2nd plaintiff Ex.A12/ - : Savings Bank A/c statement of 1st Plaintiff in Syndicate Bank, S.Konda Ex.A13/ - : Bank A/c statement of 1st plaintiff in Andhra Pragathi Gramena Bank, Ex.A14/ - : Bank A/c statement of 2nd plaintiff in Andhra Pragathi Gramena Bank, S.Konda Ex.A15/ - : Bank A/c statement of 2nd plaintiff in Syndicate Bank,S.Konda Ex.A16/ - : Bank A/c statement of 3rd plaintiff in Syndicate Bank,S.Konda

For Defendants:-

Ex. B1 / 12.02.2011 : Reply notice Ex. B2 / 13.10.2010 : Representation along with Challan to MRO to measure land Ex. B3 / 31.10.2010 : Notice issued by the Surveyor to D.W.1 Ex. B4 / 02.11.2010 : Statement recorded by Surveyor Ex. B5 / 03.11.2010 : Report submitted by the Surveyor to Tahasildar Ex. B6 / 14.08.2012 : Representation submitted by D.W.1 to Tahasildar

VII -ADJ,Ongole. FAC/V-A.D.J.,

IN THE COURT OF THE V ADDITIONAL DISTRICT JUDGE :: ONGOLE

Present:: Smt. T. Ramani Krupavathi,M.A.,B.L., VII- Additional District Judge, Ongole. FAC-V Additional District Judge, Ongole. Wednesday this the 4rd day of November, 2015.

O.S.No.265/2011

Between 1.Bandaru Rambabu S/o.Seetharamaiah, aged 49 years, Hindu, R/o.Mulaguntapadu Village, Singarayakonda Mandal, Prakasam District 2.Syed Khadar Basha @ Sardhar S/o.Mahaboob Saheb, Aged 61 years, Muslim, R/o.Mulaguntapadu Village, Singarayakonda Mandal, Prakasam District 3.Shaik Abdul Khadar S/o.Karim Mohiddin, aged 53 years, Muslim, R/o. Singarayakonda (V & M),

Prakasam District ....... Plaintiffs

AND 1.Shaik Hameedunnisa W/o.Chand Saheb,aged 55 years, Muslim,R/o.Thettu Village, Gudlur Mandal, Prakasam District 2.Shaik Mustarunnisa W/o.Sabjan Saheb, aged 30 years,

Muslim, R/o.Navabu Pet, Nellore Town, Nellore District....... Defendants

This suit is filed for directing the defendants to execute the registered sale deed in favour of the plaintiffs as per the terms of agreement of sale, dated 26.7.2010 and to deliver possession of the same to the plaintiffs, if the defendants fails to get execute the sale deed, the same may be done by the Court under due process of law or if the Court is not inclined to grant relief of specific performance of agreement of sale under any circumstances, alternatively direct the defendants to refund the advance of sale consideration and interest thereon @ 24% p.a. i.e., 18,36,800/- with subsequent interest @ 12% p.a.

on the advance sale consideration of Rs.14,00,000/- till the date of realization and for costs of the suit.

Plaint Presented on: 08.11.2011 and filed on: 10.11.2011

Court fee & Valuation :-

Since the suit is for specific performance of agreement of sale at the rate of Rs.56,70,000/- on which a Court Fees of Rs.59,226/- is paid under section 39 of ACF & SV Act.

The alternative relief of refund of advance of sale consideration of

Rs.14,00,000/- and interest thereon will come to Rs.18,36,800/- is refundable on which a C.F. of Rs.20,826/- is payable but Court Fees is paid more than the said amount on specific performance and that no

Court fees is paid on alternative relief.

The value of the suit for the purpose of Jurisdiction is valued at

Rs.56,70,000/-.

This suit is coming on 29.10.2015 for final hearing and disposal

before me in the presence of Sri P.L.Govindaiah, Advocate for Plaintiffs

and of M/s.G.J.Raju and Smt.Chiluka Latha, Advocates for the defendants, on perusal of material on record and upon hearing the counsel for both sides and having stood over for consideration till this day this court Doth order and decree:-

1. that the defendants 1 and 2 do pay to the plaintiffs 1 to 3 a sum of Rs.18,36,800/- together with interest at 18% p.a. from the date of agreement of sale i.e., 26.7.2010 till 4.11.2015 the date of decree and thereafter at 6% p.a. till realization, and

2. that the defendants 1 and 2 do also pay Rs.2,09,618/- to the plaintiffs 1 to 3 towards the costs of this suit bearing their own costs of Rs.-Nil- as (CM & FC not filed)

Given under my hand and the seal of this court, this the 4rd day of

November, 2015.

VII-Additional District Judge, FAC/V Additional District Judge, Ongole.

Table of Costs

For Plaintiffs:- For Defendants :-

Stamp on Vakalat Rs. 2-00 (CM & FC not filed) Stamp on Plaint Rs. 59,226-00 Stamp on process Rs. 190-00 Advocate fee Rs.1,50,000-00 (as claimed) Typing charges Rs. 200-00 ---------------------- Rs.2,09,618-00 ----------------------

VII -ADJ,Ongole. FAC/V-A.D.J.,

1

IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE, ONGOLE

Present: Sri Shaik Mohd. Ismail,

I Additional District Judge, Ongole

Monday, this the 28th day of July, 2014

O.S.No.66/2010

BETWEEN:

Chembeti Aruna, W/o. Sreenu, Hindu, Housewife, aged about 38 years, Residentof 4th Lane, Ram Nagar, Ongole …. Plaintiff

AND

Devarapalli Radha, W/o. Raghava Reddy, Hindu, Houseiwfe, aged about 40 years, Sri Sai Nilayam,Flat No.46, Door No.1/5-248/3, Srinagar Colony (East),Old Halwal, Secunderabad … Defendant

This suit coming on 3.6.2014 for final hearing before me in the presence of Sri D.Srinivasa Murthy, counsel for the Plaintiff and of Sri K.Sivaprasada Rao, counsel for the defendant, upon hearing the counsel on record, upon perusal of the oral and documentary evidence and other material available on record and having stood over till this day for consideration, this Court made the following:-

J U D G M E N T

The plaintiff filed this suit against the defendant for specific performance of agreement of sale dated 4.11.2009 executed by the defendant in favour of the plaintiff.

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

That the plaintiff purchased the plaint schedule mentioned property under agreement of sale dated 4.11.2009 (fourth November, two thousand and nine) for Rs.14,00,000/- (Rupees fourteen lakhs only) and paid a sum of Rs.3,50,000/- (Rupees three lakhs fifty thousand only) towards advance of the sale agreement and it is mentioned in the said agreement of sale dated 4.11.2009 that the plaintiff has to pay the balance of sale consideration within 90 days and the defendant has to execute a regular registered sale deed either in favour of the plaintiff or her nominees with the expenses of the plaintiff and to deliver possession of the same. The plaintiff submits that as per the right given by the 2 defendant, the plaintiff, with a view to complete her part of the contract ,the plaintiff got prepared layout plan and deposited Rs.9593/- towards layout fee and security deposit to the Government on 30.12.2009, divided the property into plots and executed sale agreements in favour of third parties. The plaintiff is ready and willing to perform her part of the contract and demanded the defendant to perform her part of the contract by receiving balance sale consideration and to execute a proper conveyance deed either in favour of the plaintiff or her nominees through phone calls and the defendant was delaying the same saying her personal reasons. On 30th March, 2010, the defendant published a notice in Eenadu daily, Prakasam edition stating that as the plaintiff did not comply, the agreement deemed to be cancelled by noting false date of agreement, suppressing the real date of agreement in between the parties, without giving particulars of the schedule and complete transactions between the parties. The plaintiff came to know about the said paper publication on receipt of the legal notice issued by the ultimate purchasers of the plots agreed to be sold by the plaintiff in their legal notices dated 24.4.2010 sent to the plaintiff and defendant and finally the plaintiff issued legal notice to the defendant dated 28.4.2010 demanding the defendant to perform her part of the contract by receiving balance of sale consideration and to execute proper conveyance deed and the said notice was returned and as the defendant is trying to alienate the plaint schedule mentioned property, the plaintiff filed this suit against the defendant for specific performance of agreement of sale dated 4.11.2009 and submits for passing of decree with costs.

3. The defendant filed written statement denying the averments of the plaint with the following averments that 3

The defendant is the owner of the suit property and the plaintiff entered into agreement of sale for the suit property on 4.11.2009 and as per the terms of the agreement of sale dated 4.11.2009, 100 days is fixed for taking a sale deed and the said period of 100 days was elapsed by 12.2.2010, time is the essence of contract. The plaintiff did not come forward to take a sale deed from the defendant. As per the terms of the agreement of sale, the plaintiff has to take a sale deed by paying the balance sale consideration within 100 days i.e. on or before 12.2.2010, as the time is the essence of the contract. As per the agreement of sale and as per the understanding between the parties, the sale deed was not taken. The defendant also issued lawyer’s notice to the plaintiff on 19.2.2010 informing the plaintiffs and the same was returned. The agreement of sale stood cancelled. The notice was sent by certificate of posting on 13.2.2010 through professional courier, but the said notice was returned wantonly. Plaintiff is residing in the same address. Hence, having no other option, the defendant gave publication in Eenadu daily news paper on 30th March, 2010 informing the plaintiff that the agreement of sale stood cancelled. The conduct of the plaintiff goes to show that the plaintiff is not interested in taking sale deed from the defendant. Right of the plaintiff to take a sale deed in pursuance of the agreement of sale stood extinguished. No rights will flow to the plaintiff under the said agreement of sale. The plaintiff was never eager to take a sale deed from the defendant. The plaintiff is not ready and willing to take a sale deed from the defendant and he had no capacity to take sale deed. The defendant never delivered possession of the suit property to the plaintiff and hence, the plaintiff cannot divide the property and execute agreements in favour of third parties. The plaintiff has no saleable rights in the suit property. So, the plaintiff cannot execute any agreements of sale in favour of the third parties. The plaintiff cannot prepare layout, as the plaintiff is not in possession of the suit property 4 and as the plaintiff never come forward to obtain registered sale deed and the plaintiff is not willing to perform her part of the contract by paying balance of sale consideration. The suit filed by the plaintiff for specific performance of agreement of sale is not maintainable and the same is liable to be dismissed.

4. On the above pleadings, the following issues are framed for trial:- 1.Whether the suit agreement of sale dated 4.11.2009 in respect of the suit schedule property is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled for specific performance of suit agreement of sale dated 04.11.2009?

3. To what relief?

5. On behalf of the plaintiff, P.Ws.1 and 2 were examined and

Exs.A1 to A4 were marked and on behalf of the defendant, D.W.1 was examined and Exs.B1 to B12 were marked.

6. The plaintiff was examined as P.W.1, P.W.2 is a witness, who was examined on behalf of the plaintiff, who supports the contention of the plaintiff. The defendant was examined as D.W.1. Ex.A1 is the agreement of sale dated 4.11.2009 executed by the defendant in favour of the plaintiff, Ex.A2 is paper Publication in Eenadu daily dated 30.10.2010,

Ex.A3 is the office copy of the legal notice dated 28.4.2010, Ex.A4 is the returned cover. Ex.B1 is the office copy of the legal notice dated 19.2.2010, Ex.B2 is the acknowledgment of defendant, Ex.B3 is the returned cover issued to Sri C.Srinivas, Exs. B4 and B5 are the

Professional courier receipts issued to the defendant and Sri C. Srinivas ,

Exs.B6 and B7 are the returned covers issued to the defendant and to

Sri C. Srinivas, Ex.B8 are the receipts, Ex.B9 is the Paper Publication and

Ex.B12 is the photo copy of the agreement of sale dated 4.11.2009 in 4 pages.

5

7. Arguments on behalf of the learned counsels for both parties were heard.

8. Issue No.1:-

Though an issue is framed “whether the suit agreement of sale

dated 4.11.2009 in respect of suit schedule property is true, valid and

binding on the defendant”, but, as seen from the averments of the written statement filed by the defendant, at para ‘4’ it is mentioned as follows:- “The defendant is the owner of the suit property. The plaintiff entered into agreement of sale for the suit property on 4.11.2009. That as per the terms of the agreement of sale 100 days is for taking a sale deed. 100 days time elapsed by 12.2.2010 time is the essence of the contract. The plaintiff did not come forward to take a sale deed from the defendant.”

The evidence of the defendant also shows the execution of agreement of sale in favour of the plaintiff. In view of the above said facts, I am of the opinion that the Ex.A1 is true, valid and was binding on the defendant. Accordingly, I answered this issue in favour of the plaintiff and against the defendant.

9. Issue No.2:-

(i) The learned counsel for the plaintiff submits by relying upon the evidence of P.Ws 1 and 2 and Ex.A1 that on 4.11.2009, the plaintiff purchased the plaint schedule mentioned property under Ex.A1- agreement of sale, for Rs.14,00,000/- and paid a sum of Rs.3,50,000/- and since the date of Ex.A1, the defendant is in possession and enjoyment of the plaint schedule mentioned property and sold the property to various persons by dividing it into plots and as the defendant 6 published in Ex.B10 about the cancellation of the agreement of sale, the plaintiff filed this suit against the defendant for specific performance of the agreement of sale and hence he submits for passing a decree with costs.

(ii) On the other hand, the learned counsel for the defendant submits by relying upon the decisions reported in

1.2009(6) ALD, 139(SC) 2.2009(2) ALD, 165(DB) that as the plaintiff did not come forward to obtain a regular registered sale deed within 100 days, as the time is the essence of contract, the defendant published in Ex.B10 about the cancellation of the agreement of sale and as the plaintiff did not obtain a register registered sale deed, the plaintiff cannot sell the site to third parties and he submits by relying upon the decision reported in 2011(5) ALD, 702 that Ex.A1 cannot be considered to be an agreement of sale coupled with delivery of possession and submits that as the plaintiff failed to perform her part of contract, as the time is the essence of contract and as 100 days was elapsed after the execution of Ex.A1, the suit filed by the plaintiff for specific performance of the agreement of sale is not maintainable and submits for the dismissal of the suit.

(iii) In view of the arguments submitted by the learned counsels for both parties, it is just and necessary that the evidence on record has to be examined.

(iv) The plaintiff, who was examined as P.W.1, deposed that she purchased the plaint schedule mentioned property from the plaintiff under Ex.A1 and divided the property into plots and sold it to various persons and after coming to know about the paper publication under

Ex.B10, she filed the suit against the defendant, after issuing legal 7 notice to the defendant, and as the suit is in time, she submits for passing of the decree directing the defendant to execute a regular regd.

sale deed in favour of the plaintiff after receiving of the balance sale consideration and submits for passing of the decree with costs.

(v) P.W.2, who is an eyewitness, who was examined on behalf of the plaintiff, supported the version of P.W.1 on all aspects.

(vi) The defendant, who was examined as D.W.1, deposed that she sold the plaint schedule mentioned property to the plaintiff under Ex.A1 and time stipulated for obtaining regular registered sale deed after payment of the balance of sale consideration is 100 days and as the time is essence of the contract and as the plaintiff failed to obtain a regular registered sale deed, the suit filed by the plaintiff for specific performance of agreement of sale is not maintainable and submits for the dismissal of the suit.

(vii) Following the decisions reported in Union of India and others Vs.

Vasavi Cooperative Housing Society Limited and others, reported in

2014 SAR (Civil), 91 and in another decision reported in Sanjana

Granites, Madras and another vs. Manduva Srinivasarao and others

reported in 2002(2) ALD, 436 (DB), wherein the Hon’ble Apex Court and Hon’ble High Court of A.P. held that “The plaintiff can succeed only on the strength of her title but not on the failure on the part of the defendant to prove his title”

(viii) Following the above decisions, the case of the plaintiff has to be examined.

(ix) In V.Muthusami (dead) by L.Rs. Vs. Angammal and others

reported in AIR, 2002 (SC)1279, the Hon’ble Apex Court held that

8 “Decree for specific performance is a discretionary one.

Comparative hardship to be looked into”

(x) In Parakunnan Veetill Joseph’s son, Mathew V.

Nedumbarakuruvillas’s son and others reported in AIR, 1987 (SC),

2328 the Hon’ble Apex Court held that “Specific performance, duty of Court, court should see that litigation is not used as instruction of oppression to have unfair advantage to plaintiff”

(xi) Following the above decisions, the case of the both parties has to be examined.

(xii) Before going into the merits of the case, the case of the plaintiff has to be examined.

(xiii) As seen from the recitals of Ex.A1, the plaintiff purchased the plaint schedule mentioned property for Rs.14,00,000/- and paid a sum of

Rs.3,50,000/- towards the advance and the plaintiff has to obtain a regular registered sale deed within 100 days. In view of the above recitals, the case of the plaintiff and the point whether the time is essence of the contract has to be discussed.

(xiv) It is an admitted fact that the plaintiff has purchased the plaint schedule mentioned property and the plaintiff has to obtain a regular registered sale deed within 100 days from the date of Ex.A1 i.e. from 4.11.2009 and the plaintiff has to obtain a regular registered sale deed within 100 days i.e. on or before 12.2.2010. The plaintiff did not make any efforts to obtain a regular registered sale deed within the stipulated period as noted in Ex.A1.

(xv) By relying upon the recitals of Ex.A1 and the evidence of P.W.1 ,

I am of the opinion that time is essence of contract and unless the 9 plaintiff obtains a regular registered sale deed, she cannot alienate the property in favour of the third parties as she has not get any right and title over the plaint schedule mentioned property.

(xvi) In Amulya Gopal Majundar vs. United Industrial Bank Limited and others reported in AIR, 1981 (Cal.), 404, the Hon’ble High Court held that “Agreement of sale will not confer any right. Merely as the plaintiff obtained Ex.A1 in her favour, she will not get absolute right over the plaint schedule mentioned property covered under Ex.A1.”

(xvii) In Smt. Chand Rani (dead) by L.Rs. vs. Smt. Kamalrani (dead) by L.Rs. reported in AIR, 1993 (SC), 1742, the Hon’ble Apex Court held that “When the purchaser is not willing to make part payment of amount within the specific time without fulfillment of some conditions, the purchaser is not entitled to specific performance of the contract.”

(xviii) Following the above decisions and as seen from the recitals of

Ex.A1, the plaintiff has to pay the balance of sale consideration within 100 days from the date of Ex.A1 and has to obtain a regular registered sale deed, but the plaintiff failed to do so. Hence, as the time is essence of contract, Ex.A1 cannot be enforced against the defendant.

(xix) In I.S.Sikandar (dead) by LRs. Vs. K.Subramanui and others reporte14 SAR (civil)- 79, the Hon’ble Apex Court held that “Though in case of agreement of sale of immovable property time is not essence of the contract , however, if the parties agreed to a specific time in the agreement to perform their part of the contract, then time is the essence of the contract and the parties 10 shall adhere to the same. The plaintiff’s failure to perform her part of the contract and to prove that he has always been ready and willing to perform the same disentitles him for decree of specific performance.”

(xx) In Sharada manikandappan vs. S. Rajyalakshmi and others reported in 2011(5) ALD 100(SC) , the Hon’ble Apex Court held that “Failure of purchaser to pay balance of sale consideration within the time fixed, clearly amounted to breach of contract.”

(xxi) Following the above decision, as the plaintiff failed to pay the balance of sale consideration within the time fixed under Ex.A1, it amounts to that the plaintiff has not followed the terms and conditions under Ex.A1.

(xxii) In Kolli Satyanarayana vs. Valluripalli Kesava Rao Chowdary

and others reported in 2009(2) ALD, 165 (DB), the Hon’ble High Court

of A.P. held that “ Payment of balance of sale consideration before expiry of three months, essence of contract, by mere stating that plaintiff is ever ready and willing to perform her part of the contract, agreement cannot be kept alive, unless the balance of sale consideration is paid. On failure of plaintiff to pay balance of sale consideration as agreed, it cannot be said that the plaintiff is ready and willing to perform his part of the contract.”

(xxiii) In C. Manohar Reddy vs. Alopi Sankar and others reported in 2007(2) ALD, 496, THE Hon’ble High Court of A.P. held that “when time schedule, if incorporated in agreement of sale itself, intention of parties at the time of entering into the contract is crystal clear that time schedule shall be adhered to and only 11 inference that can be drawn in such case is that time is essence of contract.”

(xxiv) In Mohd. Abdul Razak v. D. Venkatesh @ Venkataiah reported in 2006(4) ALD,118 the Hon’ble High Court of A.P. held “that failure of plaintiff to perform his part of the contract within the stipulated time, specific performance can be refused.”

(xxv) In P.Kupparaju vs. A.Thyagaraju reported in 2013(4) ALT, 314 wherein the Hon’ble High Court of A.P. held that “when the agreement of sale stipulates that the terms and conditions of payment of balance of sale consideration and execution of sale deed to be concluded by a certain date and if the amount was not paid by that date or if no amount was received after that date by the vendor, it must be concluded that time is essence of the contract”.

(xxvi) In Malireddy Buthiramanna Dora and another vs. Dasasri

Veerabadra Rao and another reported in 2012(2) ALD 48, the

Hon’ble High Court of A.P. held that

“Time stipulated for conclusion of contract was three months and the Court can refuse the relief by treating that plaintiff was not ready and willing to perform his part the contract.”

(xxvii) Following the above decisions, I am of the opinion that the plaintiff has to pay the balance of sale consideration and obtain a regular registered sale deed and after giving of Ex.B10, paper publication, only, the plaintiff issued notice to the defendant asking her to execute a regular registered sale deed in the name of third persons.

12

(xxviii) Following the above decision, as the time is the essence of contract, I am of the opinion that the suit filed by the plaintiff for specific performance of agreement of sale is not maintainable.

(xxix) The plaintiff further submits that as per the terms of Ex.A1 she divided the site into plots and sold to third persons but in the decision reported in Dudekula Allauddin v. G.Sivaramakrishna and others

reported in 2011(5)ALD, 702, the Hon’ble High court of A.P. held

that “Containing recital that vendor gave permission to vendee for development activities cannot be considered to be an agreement of sale coupled with delivery of possession”

(xxx) As held in the decision reported in Amulya Gopal Majundar vs.

United Industrial Bank Limited and others reported in AIR, 1981

(Cal.), 404 (b) I am of the opinion that Ex.A1 itself cannot create any rights in favour of the plaintiff and hence executing registered agreements of sale in favour of third parties cannot arise in the facts of the suit.

(xxxi) Following the above decisions and the discussion made above, I am of the opinion that the suit filed by the plaintiff for specific performance of agreement of sale dated 4.11.2009 is not maintainable and is liable to be dismissed.

(xxxii) In view of the above discussion, I answered this issue in favour of the defendant and against the plaintiff.

10. Issue No.3:-

In view of my answering on issue No.1 in favour of the plaintiff and against the defendant and in view of my answering on Issue No.2 against the plaintiff and in favour of the defendant, the suit filed by the 13 plaintiff for specific performance of agreement of sale dated 4.11.2009 is not maintainable and the same is liable to be dismissed.

In the result, the suit is dismissed, but in the circumstances, each party to bear their own costs.

Dictated to the Personal Assistant, transcribed by him, corrected

and pronounced by me in open Court, this the 28th day of July, 2014.

I ADDL. DISTRICT JUDGE,

ONGOLE

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF FOR DEFENDANT

P.W.1:Chembeti Aruna D.W.1: Devarapalli Radha

P.W.2: Chikkala Rama Rao

DOCUMENTS MARKED

FOR PLAINTIFF

Ex.A1/04.11.2009: Unregistered agreement of sale executed by the defendant in favour of the plaintiff

Ex.A2/30.03.2010: Paper advertisement given by the defendant through here counsel Sri K.S.Prasada Rao, Ongole in Eenadu daily, Prakasam District edition.

Ex.A3/28.04.2010: Office copy of notice issued by the plaintiff through Sri D.Srinivasa Murthy, Advocate, Ongole to the defendant along with postal receipt.

Ex.A4/ : unserved R.P. cover with acknowledgement addressed to the defendant

FOR DEFENDANT

Ex.B1/19.02.2010: Office copy of notice issued by the defendant through Sri B.Audi Babu, Advocate, Ongole to the defendant

Ex.B2/ : Postal acknowledgment addressed to the plaintiff (without the signatures of the plaintiff)

Ex.B3/22.02.2010: unserved R.P.cover addressed to Sri C. Srinivas (Husband of the plaintiff)

Ex.B4/ 20.02.2010: Professional couriers receipt addressed to the plaintiff 14

Ex.B5/20.02.2010: Professional couriers receipt addressed to Sri C.Srinivas (husband of the plaintiff)

Ex.B6/ : Returned courier cover addressed to the plaintiff

Ex.B7/ : Returned courier cover addressed to C.Srinivas(husband of the plaintiff)

Ex.B8/20.02.2010: Certificate of posting addressed to the plaintiff and C.Srinivas (Husband of the plaintiff)

Ex.B9/23.02.2010: Returned certificate of posting cover addressed to the plaintiff

Ex.B10/30.3.2010: Eenadu news paper, Prakasam District edition

Ex.B11/23.05.2010: Receipt issued by Ushodaya publications, Eenadu, Hyderabad in favour of Sri K.S.Prasada Raio, Advocate, Ongole (defendant’s Advocate)

Ex.B12/03.03.2014: Photostat copy of unregistered sale agreement dated 4.11.2009 executed in favour of the plaintiff by the defendant.

I A.D.J

ONGOLE

IN THE COURT OF THE II-ADDITIONAL DISTRICT JUDGE, ONGOLE

Present: Smt. T.Ramani Krupavathi,

VII Addl. District Judge,

FAC. II-Additional District Judge, Ongole

Monday, this the 2nd day of March, 2015

O.S.No.102/2011

Between:

Narne Venkateswarlu, S/o. Subba Rao, aged about 45 years, Hindu, Cultivation and Business, R/o Nagulapadu village, Addanki Mandal, Prakasam District.… PLAINTIFF AND

1. Bellam Anjaiah, S/o Bushaiah, aged about 60 years, Hindu, cultivation, R/o Thimmanapalem village, Korisapadu Mandal, Prakasam Distrit.

2. Upputuri Anantha Lakshmi, W/o Raja, aged about 39 years, Hindu, House wife, R/o Thimmanapalem village, Korisapadu Mandal, Pakasam District.

3. Gangineni Rajani Kumari, W/o Ramanjaneyulu, aged about 37 years, Hindu, cultivation, R/o Tubadu village, Nadendla Mandal, Pakasam District. … DEFENDANTS

This suit coming on 20.1.2015 for final hearing before me in the presence of Sri B. L.Narayana Rao, Advocate for the plaintiff, Sri M.Gangadhara Rao, Advocate for the 1st respondent and of Sri K.S.Prasada Rao, Advocate for the 2nd and 3rd respondent, upon hearing the counsels on record, upon perusal of the oral and documentary evidence available on record and having stood over till this day for consideration, this Court delivered the following:-

J U D G M E N T

The plaintiff filed the suit against the defendants 1 to 3 for specific performance of the agreement of sale dated 14th October, 2010 for

Rs.32,00,000/- executed by 1st defendant in favour of plaintiff directing the 1st defendant with the presence of defendants 2 and 3 to execute regular sale deed in favour of the plaintiff for the suit scuit schedule property by receiving balance of sale consideration, failing which, the same may be done through process of Court, and for costs.

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

The 1st defendant succeeded the plaint schedule property through their ancestors and thus enjoying the same with peaceful possession and enjoyment with absolute rights knowing to one and all. Defendants 2 and 3 are the daughters of 1st defendant. The 1st defendant is the manager of the joint family properties belonging to the family of defendants. In such capacity 1st defendant offered to sell the schedule property to the plaintiff for the development and welfare of the joint family. The bargain was settled at

Rs.32,00,000/- for each acre. On 14-10-2010 the 1st defendant executed an agreement of sale in favour of plaintiff by receiving Rs.8,00,000/- as advance. In the said agreement of sale it was incorporated as agreed between both parties that the remaining balance of amount has to be paid on or before 90 days from the date of agreement and the extent acquired by the National high way authorities has to be deducted from the total extent of

Ac.1-17 cents in S.No. 451 of Thimmanapalem village, H/o Bodduvanipalem village. The plaintiff further submits that subsequently the land was measured in the presence of 1st defendant, 2nd defendant and husband of 3rd defendant. One Sadineni Ranga Rao relative of defendants who siged as attester on the agreement of sale is also present at the time of measuring the land. At the time of measurements it was decided Ac.0-17 cents was acquired by the national high way authorities. Ac.0-10 cents might have been annexed by the southern boundary owner because of non existence of bund between the schedule property and southern boundary owner. Thus, the total extent came to AC.0-90 cents. Subsequently the southern boundary owner expressed his willingness to take measurements after removal of tobacco crop, as it is tough to measure exactly with the standing crop. For that both parties mutually agreed. Since the date of agreement of sale the plaintiff is ready and willing to perform his part of contract, but 1st defendant postponing the same that the surveyors are not available for measuring the land. It is further stated by the plaintiff that subsequently there was increase in the land value, taking advantage of the increase in the land value the 1st defendant got issued a legal notice on 26-02-2011 in the name of defendants 2 and 3 as if they are having share in the schedule property and demanding partition of all the joint family properties. For that the plaintiff got issued a legal notice stating real state of facts occurred.

Hence, the suit.

3.The first defendant filed written statement denying the averments of the plaint with the following averments that D1 has no necessity or occasion to offer the plaint schedule property for sale as he has no encumbrances or liabilities to meet them by alienate the worthy property of his joint family. D1 had performed the marriage of D2 and D3 long back and they have been happy with their families. Thus, the question of the development and welfare of the family to sell the schedule property does not arise. More over, the value of the suit land is nearly about Rs.80,00,000/- per acre. So, no prodent person will alienate Rs.80,00,000/- worthy property sells for

Rs.32,00,000/-. Hence, all the allegations of the plaint with regard to the bargain, execution of agreement of sale and other terms of the same are false and the suit filed only at the instigation and advise of one Sadineni

Rangarao the plaintiff resarted to the eration of forged and fabricated agreement of sale who has enough knowledge about the signature of this defendant and he is skilled to scate upon the suit land as the Ranga Rao to forge the signatures as like as the person to whom it relative has misunderstanding with the 1st defendant . It is further submitted by the 1st defendant that the suit schedule property is an ancestral property of D1, D2 and D3 are co-sharers of their family properties including this suit property, they demanded D1 for partition through the legal notice dated 24-02-2011.

Hence, D2 and D3 can not alienate under this alleged agreement of sale and the agreement of sale itself is denied by D1 the question of directing D2 and

D3 to execute sale deed does not arise. The plaintiff never met D1 personally or through any third party to demand D1 for execution of any sale deed basing upon forged and fabricated agreement of sale, so also the plaintiff did not choose to get issue any notice in writing in pursuance of alleged fabricate and forged agreement of sale prior to filing of this suit. It is further contended that the defendant to put the suit land for sale and denying the genuiness of the alleged suit agreement itself, the question of alleged alienation does not arise. Hence, submits to dismiss the suit with costs.

4.The second defendant filed written statement denying the averments of the plaint with the following averments that there is no joint family between the defendants on the one hand the D2 and D3 on the other. D2 and D3 are denying the alleged agreement of sale between D1 and the plaintiff and they are not aware of the alleged agreement of sale and they are not parties to the agreement of sale. As the suit schedule property is ancestral property D2 and D3 have got a share in the suit property. As per

Hindu law they are entitled for 2/3rd share in the suit property. The agreement of sale do not bind D2 and D3 as they are not executants. The suit agreement of sale is contract. It is further stated that the plaintiff has to prove that the agreement takes place for the necessities of D2 and D3. They are house wives and there is no necessity for them to sell the suit property though D1. National High way acquired land southern boundary owner never annexed any land. Having came to know about the agreement of sale D2 and D3 gave a notice claiming their shares in the suit property. Plaintiff is not entitled for specific performance, hence prays to dismiss the suit with costs.

5.On the above pleadings, the following issues are framed for trial:-

1. Whether the suit agreement of sale is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled to the relief of specific performance as prayed for?

3. To what relief?

6. On behalf of the plaintiff, P.Ws. 1 to 3 were examined and Exs.A1 to A3 were marked. On behalf of the defendants, D.Ws.1 and 2 were examine and no documents were marked.

ISSUES 1 AND 2:

7.The case of the plaintiff is that the 1st defendant agreed to sell the plaint schedule property. The bargain was settled at Rs.32,000/- for each acre. On 14-10-2010 the 1st defendant executed an agreement of sale in favour of the plaintiff, after receiving Rs.8,00,000/- as advance and it is also stated in the agreement that the remaining balance amount has to be paid on or before 90 days from the date of agreement and the extent acquired by

National Highway authorities has to be deducted from the total extent of

AC.1.17 cents in S.No. 451 of Thimmayapalem village, H/o Bodduvanipalem village. Further the case of the plaintiff is that the land was measured in the presence of D1, D2 and husband of D3. One Sadineni Ranga Rao relative of the defendant signed as attester on the agreement of sale was also present at the time of measuring the land, at the time of measurement it was 0-17 cents was acquired by the National high way Authorities and AC.0-10 cents might have been a annexed by the southern boundary owner because of the non existence of bund between the schedule property and the southern boundary, thus the total extent came to Ac.0-90 cents. Subsequently, the boundary owner expressed his willingness to take measurement after removal of tobacco crop as it is tough to measure exactly with the standing crop. Further the case of the plaintiff is that since the date of agreement of sale he is ready and willing to perform his part of contract that D1 has been postponing the same as the surveyors are not available for measuring the land.

8.As there is increase in the land value, taking advantage of increasing the land value the 1st defendant got issued a legal notice on 26-02-2011 in the name of D2 and D3 as if they are having share in the schedule property and demanding partition of all the joint family property, for that he got issued a legal notice stating the real facts. The said notice is a collusive one and issued to have wrongful gain. The said notice was issued only to have undue enrichment and to blackmail. Further he submits that he tried his level best to obtain a regular sale deed from the 1st defendant. But all his efforts proved futile, so he constrained to file the suit.

9.In order to his contention he examined himself as P.W.1, P.W.2 is the attester and P.W.3 is the scribe of Ex.A1. P.W.1 categorically stated that execution of Ex.A1 and issuing notice notice and reply notice under Exs.A2 and A3. In support of his contention P.W.1 examined P.W.2 the attester and

P.W.3 the scribe of Ex.A1 who categorically supported the version of P.W.1

Now the burden shifts on the defendant to prove his contention.

10.The contention of 1st defendant is that total denial of the plaint contents. Further he contended that the property is an ancestral property.

Further 1st defendant contended that they demanded D1 for partition through legal notice on 24-2-2011. Further contended that the plaintiff never met him personally or through any 3rd party and D1 never executed any sale deed and the agreement is forged agreement and fabricated and so the plaintiff did not choose to got issued any notice, therefore the suit is not maintainable as the plaintiff did not comply the mandatory requirements under Section 16-

C, Section 20 and 22 of Specific Relief Act. Therefore, prays the Hon'ble

Court to dismiss the suit.

11.2nd and 3rd defendants also filed written statements contended that there is no joint family between the defendants on the one hand and D2 and D2 on the other. D2 and D3 denied the sale agreement. Further contended that as per the plaint pleadings the suit property is an ancestral property of D1, so D2 and D3 are sharers in the joint family and they have got share in the suit property also. As per the Hindu Law defendants 2 and 3 are entitled 2/3rd share in the suit schedule property D2 and D3 are non executants of alleged agreement of sale. The agreement of sale did not bind

D2 and D3 as they are executants. The suit agreement of of sale is a contract. The persons who are parties to the contract are only liable but not the sharers. There is no joint family between the males and females and there is no coparcenary between D1, D2 and D3. Further the contentions of

D2 and D3 is that the plaintiff has to prove that the sale agreement took place in the interest of D2, D3. The allegation in the plaint that the plaintiff is ready and willing to take sale deed is not correct. Having come to know about the agreement of sale D2, D3 gave a notice claiming their shares in the suit property. Plaintiff gave a reply with false allegations. The plaintiff is not entitled for specific performance againt D2 and D3 and there is no cause of action and the plaintiff is not entitled for any relief as sought for.

12.In order to prove this contention 1st defendant examined DW1 and 2nd defendant examined DW2. As seen from the records D2, D3 are claiming shares in the properties of D1. But till now D2, D3 did not filed any suit for partition against D1. But D2, D3 issued notice to plaintiff and D1, but defendants 2 and 3 did not cross examined D1, though they have issued notice to D1 along with plaintiff. D1 also did not cross examine D2. It is clearly establishes that the pleadings are collusive pleadings. DW1 in the cross examination admitted that there was a partition and the schedule property was given to D2 and D3 at the time of their marriage. But there is no proof filed by DW1 or DW2 in support of this contention. But the contention of D2 and D3 is that they are having share in the property of D1, but according to the cross examination of DW1 he stated that he has already given the schedule property to D2, D3 at the time of their marriages. So, there is no corroboration between the depositions of DW1 and DW2. When the signature of the defendant was compared with the signatures in the vakalat and written statement the defendant totally denied the signatures on the vakalat and written statement. So, it is proved that the defendant executed Ex.A1. Further in the cross examination of DW1 it discloses that the pattadar pass book and title deed for the schedule property is in the name of the DW1. If really he has given the property to D2 and D3 at the time of their marriages. The names of D2, D3 will be in the pattadar pass books and title deeds, but in contrary to that the pattadar pass books and title deeds are in the name of DW1. Further DW1 contended that Ex.A1 is a forged and fabricated document. But the defendant did not choose to take the documents to expert opinion to prove his contents, on the other hand he denied the signatures in the vakalat and written statement also. So, the contention raised by D1 to D3 are not proved. On the other hand the plaintiff is established his contention under Ex.A1 to A3 and as such the issues 1 and 2 are settled in favour of plaintiff.

ISSUE NO.3:

13.As the plaintiff is established his contention through oral and documentary evidence, he is entitled for the relief as prayed and accordingly suit is decreed with a direction to the defendant to execute a registered sale deed on receiving the remaining sale consideration amount within one month from the date of this order.

14.In the result, suit is decreed with costs with a direction to the 1st defendant to execute a regular registered sale deed after receiving the remaining sale consideration amount within one month from the date of this

Judgment i.e., 02-03-2015.

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

pronounced by me in open Court, this the 2nd day of March, 2015.

VII-ADDITIONAL DISTRICT JUDGE,

FAC. II ADDITIONAL DISTRICT JUDGE, ONGOLE

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For plaintiff For defendants P.W.1: Narne VenkateswarluD.W.1: Veeravalli Venkata Subbamma P.W.2: Beemani Venkata Ramaiah D.W.2: Veeravalli Venkata Rao P.W.3: Nadimarthi Venkata Subba RaoD.W.3: Dhulipalla Seshagiri Rao

DOCUMENTS MARKED

For plaintiff:

Ex.A1/14.10.2010: Un registered agreement executed by Bellam Anjaiah in favour of Narne Venkateswarlu.

Ex.A2/24.02.2011: Registered notice issued by the Advocate for Upputuri Ananthalakshmi and others in favour of Bellam Anjaiah and others

Ex.A3/15.03.2011:Office copy of the reply notice issued by the Advocate for Narne Venkateswarlu to Ch.Nageswara Rao.

For defendants: NIL

VII-ADJ,

FAC. II ADJ, ONGOLE.

1

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

(Before the V-Addl. District & Sessions Judge, Ongole) Present:- Smt.T.Ramani Krupavathi, M.A., B.L., Chairman MACT-cum-VII- Additional District Judge, Ongole.

Monday, this the 30th day of July, 2014.

MVOP No. 462/2011 Between:

1. Patan Munthaj, W/o Later Jabbir Khan, aged 21 years,

2. Patan Fayaz, S/o Late Jabbir Kahn, aged 5 years,

3. Patan Bashirun, W/o Bhaza Khan, aged 53 years,

4. Patan Bhaza Khan, S/o Maruf Khan, aged 60 years,

P2 being minor rep., by his mother natural guardian 1st petitioner. All are Muslims, R/o Ammanabrolu village,

N.G.Padu Mandal, Prakasam District. ...Petitioners

And

1. Dudekula Dada Vali, S/o Kasaiah, Muslim, aged 33 years, R/o D.No. 17/9-359, Sangadigunta, Redla Bazar, 6th lane, Guntur town, Owner-cum-Driver of lorry bearing No. AP-26-Y-6989.

2. Shriram General Insurance Company, Ltd., E/8, EPIP, RIICO Industrial Area, Sitapura,

Jaipur, Rajasthan-302022....Respondents

This Petition came on 24-07-2014 for final hearing before me in the presence of Sri.P.Siva Hari, Advocate for Petitioners and of Sri K.Srinivasulu, Advocate for 2nd Respondent; and the 1st respondent having remained ex-parte; and upon perusing oral and documentary evidence on record, and the matter having stood over for consideration to this day, the court delivered the following:- // A W A R D //

1.This petition is filed by the petitioners U/secs.166 (1)(C) of M.V.

Act claiming compensation of Rs.7,00,000/- for the death of Patan Jabbir

Khan, the husband of the 1st petitioner, father of 2nd petitioner and son of the petitioners 3 and 4, in the accident occurred on 05-11-2011 at about 5-00 AM on NH-5 road near 180.3 KM Stone, JR Colony cross road, near Nellore Town.

2.It is the case of the petitioners, that the deceased was the cleaner under R1 for the lorry bearing NO. AP 26-Y-6989 and he was on duty along with R1 who is the owner-cum-Driver of the above said lorry. On 04-11-2011 they started with the lorry having Kur Kure's load from

Guntur at about 9-30PM to go to Nellore. When they reached near 180.3 2

KM stone J.R.Colony cross road on NH-5 Road on 05-11-2011 at about 5- 00AM the driver of the lorry drove the same in a rash and negligent manner without observing the road margins and without seeing the front vehicles, dashed against a stationed container lorry bearing No. TN 04

AC 4669 as a result the deceased cleaner who was in the cabin received multiple severe injuries and died on the spot. The Police of Nellore Rural

PS registered a case in Cr.No. 330/2011 against the driver of the lorry

U/Sec. 304(A) of IPC. The deceased was aged about 28 years at the time of the accident and he was earning Rs.7,500/- per month. Due to the sudden and uneven incident, the petitioners being legal heirs of the deceased suffered very much mental agony and sustained heavy loss.

Except the petitioners, there are no other L.Rs to the deceased. Hence,

R1 being Owner-cum-driver and R2 being Insurer of the crime vehicle are jointly and severally liable to pay compensation to the petitioners with interest and costs.

3.After receipt of notice, R1 remained ex-parte.

4.After receipt of notice, R2 engaged counsel and filed written statement denying all the averments of the petition including the manner of the accident, age, avocation of the deceased. It is further submitted that there was negligence on the part of the driver of the bus as he was unable to drive the vehicle and as such this respondent is not liable to pay compensation. It is further submitted that the driver of the bus was not having any valid and effective driving license and there was no valid permit and there was no valid policy at the time of the accident.

The amount claimed by the petitioners is excessive. This Respondent is seeking protection U/secs.147, 149 & 170 of M.V. Act and prayed for dismissal of the petition with costs.

5. Basing on the above pleadings, the following issues are settled for trial:- 3

i)Whether Patan Jabbir Khan died in the accident caused on 05-11- 2011 at about 5-00AM due to the rash and negligent driving of the lorry bearing No. AP-26-Y-6989?

ii) Whether the petitioners are entitled to claim for any compensation? If so, to what amount and from whom?

iii) To what relief?

6.To prove the case of the petitioners, the 1st petitioner is examined as PW.1 and Exs.A1 to A4 are marked. On behalf of the Respondents, no witnesses are examined, but Ex.B1 the attested xerox copy of Policy is marked with consent. On behalf of R2 petition filed U/Sec.170 of M.V.

Act to take all the defences available to R1 and the same is allowed.

7.After closure of the evidence, arguments are heard.

8. Issue No:1.

Whether Patan Jabbir Khan died in the accident caused on 05-11- 2011 at about 5-00AM due to the rash and negligent driving of the lorry bearing No. AP-26-Y-6989?

The 1st petitioner is examined as P.W1. In her evidence she reiterated what was mentioned in the petition. As per her evidence and as per the petition averments on 05-11-2011, when her husband the deceased along with R1 being the cleaner and driver respectively started the crime vehicle bearing No. AP-26-Y-6989 with the load of “Kur

Kure” from Guntur to go to Nellore on 04-11-2011 and when they reached near 180.3KM stone, JR Colony cross road on NH-5 road near

Nellore town on 05-11-2011 at about 5-00AM R1 the driver-cum-owner of the crime vehicle drove the same in a rash and negligent manner and dashed against the stationed container lorry bearing No. TN-4-AC-4669, as a result the deceased sustained grievous injuries and died on the spot. Later a case was registered in Cr.No.330/11 U/s.304-A IPC in

Nellore Rural P.S.

The Petitioners filed the following documents to prove their case:

Ex.A1: Certified copy of FIR in Crime No.330/11 U/S.304(A) IPC of Nellore Rural P.S.

4

Ex.A2:Certified copy of Charge Sheet.

Ex.A3:Certified copy of Post-mortem Certificate.

Ex.A4:Certified copy of copy of Inquest report. \

PW2-Shaik Subhani, working as lorry driver who is also resident of the native place of the deceased also stated in his evidence that he knows the family of the deceased and he came to know about the accident in which the deceased died on spot. At the time of accident he was at Nellore. He also stated that the deceased was earning Rs.

7,500/- per month towards his salary and batta. In his cross-examination he stated that the deceased was his brother-in-law. He denied the suggestion that the deceased was an unauthorized passenger and R2 is not liable to pay compensation.

As per the evidence of Pws 1 and 2 and as per Exs.A1 to A4 it is clear that the accident was occurred due to the due to the rash and negligent act of the driver of the lorry. Both the respondents-1 & 2 did not produce any evidence in their favour, but on the other hand 1st respondent remained ex-parte. Even the 2nd respondent also failed to produce any evidence contra to the evidence produced by the petitioners. Hence, from the evidence of PW1 and from Exs.A1 to A4, it is proved that the accident was occurred due to the rash and negligent driving of the crime vehicle by its driver i.e., the deceased. Accordingly this issue is answered.

09.Issue No.2:

Whether the petitioners are entitled to claim for any compensation? If so, to what amount and from whom?

As the accident was occurred due to the rash and negligent driving of the crime vehicle by its driver, and as the cleaner of the said lorry died on the spot, the owner-cum-driver and insurer of the crime vehicle are jointly and severally liable to pay compensation.

5

10.Quantum of Compensation:As per the petitioners, the deceased was aged 28 years. Even as per police records, i.e., Charge Sheet, the

P.M certificate and the Inquest report of the deceased i.e., Ex,A2 to A4, the age of the deceased is shown as 28 years. In the cross-examination of PW1, she stated that they got white ration card and their annual income is Rs.18,000/-. She also stated that there is no documentary evidence to show that the deceased was aged 28 years. She denied the suggestion that the age of deceased was 36 years. So, the age of the deceased has to be taken as 28 years, as per Ex. A2 to A4. According to the petitioners, the deceased was working as cleaner of the lorry of R1 and he was earning an amount of Rs. 7,500/- per month, but there is no proof with regard to his income. Even in the absence of proof of income, we can take into account that the deceased was earning at least

Rs.4,000/- per month i.e., Rs.48,000/- per annum. Because, the deceased was aged 28 years, as per the 2nd schedule of M.V. Act, for the persons whose age is in between 25 and 30 years, the multiplier is “18” and for the income group of Rs.48,000/- per annum, the compensation payable is (Rs.48,000- x 18 = Rs.8,64,000/-)

Rs.8,64,000/-. Out of the same 1/3rd of the amount i.e. Rs.2,88,000/- has to be deducted towards personal expenses of the deceased which the deceased would have incurred had he been alive (Rs.8,64,000/- –

Rs.2,88,000/- = Rs.5,76,000/-) the compensation payable is

Rs.5,76,000/-. Apart from it, the petitioners are entitled for an amount of Rs.10,000/- towards love and affection; Rs.2,500/- towards funeral expenses and Rs.2,500/- towards loss of estate.

11.Apportionment of compensation:- The petitioners are the wife, son and parents of the deceased. Due to the sudden demise of their only bread earner, they suffered a lot. Therefore, they are entitled to the 6 compensation amount of Rs.5,76,000/- (Including Rs.10,000/- towards love and affection and Rs.2,500/- each towards funeral expenses and loss of estate). Taking into consideration of the same, I am apportioning the compensation amount as follows:-

The petitioners are entitled to the compensation amount of

Rs.5,96,000/- with interest and costs. Out of the said amount the 1st petitioner is entitled to sum of Rs.1,96,000/- with interest and costs and she is permitted to withdrawn Rs.1,00,000/- with interest costs and the remaining amount shall be deposited in any nationalized bank for a period of three years. The 2nd petitioner is entitled to Rs. 2,00,000/- with interest and his entire amount shall be kept in fixed deposit in his name being her mother as guardian till he attains majority. The petitioners 3 and 4 are entitled to a sum of Rs.1,00,000/- each and they are permitted to withdraw their entire compensation amount with interest.

12. Issue No:3 :

To what relief?

In view of the decisions arrived in Issues 1 and 2, this petition is partly allowed with appropriate costs against R1 & R2 directing them as follows:-

i)The Respondents 1 & 2 do pay the compensation amount of

Rs.5,96,000/- with interest at 9% P.A. from the date of petition i.e. 23-11-2011, till the date of realization; ii)The Respondents 1 & 2 are jointly and severally liable to pay the above said compensation amount with interest and costs and they are directed to deposit the same within 30 days from the date of this award; iii)On such deposit, the 1st petitioner is entitled to the compensation amount of Rs.1,96,000/- with interest and costs and she is permitted to withdraw an amount of Rs.1,00,000/- with interest and costs and her remaining amount shall be kept in fixed deposit in any nationalized bank for a period of three years; 7 iv)The 2nd petitioner is entitled to the compensation amount of

Rs.2,00,000/- with interest and his entire amount shall be kept in any nationalized back in his name being represented by his mother as guardian, till he attains majority;

v)The petitioners 3 and 4 are entitled to the compensation amount of Rs. 1,00,000/- each with interest and they are permitted to withdraw their respective amounts; and vi)The Advocate fee is fixed at Rs.4,500/-.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in Open Court, this 30th day of July, 2014.

Chairman, Motor Accidents Claims Tribunal-cum- VII-Addl. District Judge, Ongole. FAC: V-Addl. District & Sessions Judge, Ongole.

Appendix of Evidence Witnesses Examined

For Petitioners:For Respondents:

PW.1:P.Munthaj PW2: SK.Subhani -NIL-

Documents Marked

For petitioners:

Ex.A1: Certified copy of FIR in Cr. No.330/2011 of Nellore Rural P.S Ex.A2: Certified copy of Charge Sheet. Ex.A3: Certified copy of Post Mortem Certificate. Ex.A4: Certified copy of Inquest report.

For Respondents:

Ex.B1: Attested copy of Policy.

VII-A.D.J., FAC:: V-A.D.J.

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

(Before the V-Addl. District & Sessions Judge, Ongole) Present:- Smt.T.Ramani Krupavathi, M.A., B.L., Chairman MACT-cum-VII- Additional District Judge, Ongole.

Monday, this the 30th day of July, 2014.

MVOP No. 462/2011 Between:

1. Patan Munthaj, W/o Later Jabbir Khan, aged 21 years,

2. Patan Fayaz, S/o Late Jabbir Kahn, aged 5 years,

3. Patan Bashirun, W/o Bhaza Khan, aged 53 years,

4. Patan Bhaza Khan, S/o Maruf Khan, aged 60 years,

P2 being minor rep., by his mother natural guardian 1st petitioner. All are Muslims, R/o Ammanabrolu village,

N.G.Padu Mandal, Prakasam District. ...Petitioners

And

1. Dudekula Dada Vali, S/o Kasaiah, Muslim, aged 33 years, R/o D.No. 17/9-359, Sangadigunta, Redla Bazar, 6th lane, Guntur town, Owner-cum-Driver of lorry bearing No. AP-26-Y-6989.

2. Shriram General Insurance Company, Ltd., E/8, EPIP, RIICO Industrial Area, Sitapura,

Jaipur, Rajasthan-302022....Respondents

This petition is filed by the petitioners U/secs.166 (1)(C) of M.V. Act claiming compensation of Rs.7,00,000/- for the death of Patan Jabbir Khan, the husband of the 1st petitioner, father of 2nd petitioner and son of the petitioners 3 and 4, in the accident occurred on 05-11-2011 at about 5-00 AM on NH-5 road near 180.3 KM Stone, JR Colony cross road, near Nellore Town.

Petition presented on:23-11-2011 And filed on:09-12-2011

Court Fee:- A Court fee of Rs.6,360/- is paid U/Sec.475 of M.V. Rules for the compensation amount of Rs.7,00,000/- on the account of Prl. District Court.

This Petition came on 24-07-2014 for final hearing before me in the presence of Sri.P.Siva Hari, Advocate for Petitioners and of Sri K.Srinivasulu, Advocate for 2nd Respondent; and the 1st respondent having remained ex-parte; and upon perusing oral and documentary evidence on record, and the matter having stood over for consideration to this day, this court doth order and decree:-

i)that the Respondents 1 & 2 do pay the compensation amount of Rs.5,96,000/- with interest at 9% P.A. from the date of petition i.e. 23-11-2011, till the date of realization; ii)that the Respondents 1 & 2 are jointly and severally liable to pay the above said compensation amount with interest and costs and they are directed to deposit the same within 30 days from the date of this award; iii)that on such deposit, the 1st petitioner is entitled to the compensation amount of Rs.1,96,000/- with interest and costs and she is permitted to withdraw an amount of Rs.1,00,000/- with interest and costs and her remaining amount shall be kept in fixed deposit in any nationalized bank for a period of three years; iv)that the 2nd petitioner is entitled to the compensation amount of Rs.2,00,000/- with interest and his entire amount shall be kept in any nationalized back in his name being represented by his mother as guardian, till he attains majority;

v)that the petitioners 3 and 4 are entitled to the compensation amount of Rs. 1,00,000/- each with interest and they are permitted to withdraw their respective amounts; vi)that the Advocate fee is fixed at Rs.4,500/- and vii)that the respondents do also pay to the petitioners a sum of Rs.10,017/- towards costs of the petition.

Given under my hand and the seal of the court, this the 30th day of July, 2014.

Chairman, Motor Accidents Claims Tribunal-cum- VII-Addl. District Judge, Ongole. FAC: V-Addl. District & Sessions Judge, Ongole.

TABLE OF COSTS

For PetitionerFor Respondents

Vakalat Rs.2-00 Court Fee Rs.5,415-00 Process & Stamp on petitions Rs.100-00-No CM & FC filed- Advocate Fee Rs.4,500-00

Total Rs.10,017-00

VII-A.D.J., FAC:: V-A.D.J.

1

IN THE COURT OF II-ADDL. DISTRICT COURT, PRAKASAM AT ONGOLE.

(BEFORE THE II-ADDL. DISTRICT & SESSIONS JUDGE, ONGOLE)

Present: Smt. T.Ramani Krupavathi, M.A., B.L., VII-Addl. District Judge, Ongole, FAC: II-Addl. District Judge (FTC), Ongole. Wednesday, this the 25 th day of September, 2014. Civil Miscellaneous Appeal No.37 of 2012 Between :

1. Gowraboina Venkateswarlu S/o Kotaiah, 84 years, Cultivation.

2. Gowraboina Yedukondalu S/o Venkateswarlu, 43 years, Cultivation.

3. Gowraboina Ramachandra Rao S/o Venkateswarlu, 41 years, Cultivation.

4. Gowraboina Koteswara Rao S/o Venkateswarlu, 39 years, Cultivation.

5. Gowraboina Krishna S/o Venkateswarlu, 37 years, Cultivation.

6. Gowraboina Parathasaradhi S/o Venkateswarlu, 35 years, Cultivation.

All are resident of K.Agraharam village, Chimakurthy Mandal. … Appellants/Defendants

Vs.

Gowraboina Bakkaiah S/o Kotaiah, 68 years, Cultivation, R/o K.Agraharam village, Chimakurthy Mandal.

... Respondent/Plaintiff.

CIVIL MISCELLANEOUS APPEAL FILED ON BEHALF OF THE APPELLANT AGAINST THE ORDER AND DECREETAL ORDER DATED 28-11-2011 IN I.A. NO.30/2008 IN

O.S. NO.13/2008 ON THE FILE OF I-ADDITIONAL JUNIOR CIVIL JUDGE, ONGOLE.

This Civil Miscellaneous Appeal coming on 18-09-2014 before me for hearing and disposal in the presence of Sri K.Srinivasulu, Advocate for Appellants and of Sri K.Brahma Reddy, Advocate for respondent and upon perusal of the appeal, and other material on record, and having stood over for consideration till this day, this Court delivered the following:

Between:

Gowraboina Bakkaiah S/o Kotaiah, 68 years, Cultivation, R/o K.Agraharam village, Chimakurthy Mandal.

... Petitioner.

And

1. Gowraboina Venkateswarlu S/o Kotaiah, 84 years, Cultivation.

2. Gowraboina Yedukondalu S/o Venkateswarlu, 43 years, Cultivation.

3. Gowraboina Ramachandra Rao S/o Venkateswarlu, 41 years, Cultivation.

4. Gowraboina Koteswara Rao S/o Venkateswarlu, 39 years, Cultivation.

5. Gowraboina Krishna S/o Venkateswarlu, 37 years, Cultivation.

6. Gowraboina Parathasaradhi S/o Venkateswarlu, 35 years, Cultivation.

... Respondents.

// O R D E R //

1. This Civil Miscellaneous Appeal is preferred by the appellants against the orders in IA 30/2008 in OS 13/2008 of I-Addl. Junior Civil Judge, Ongole.

2.The brief contents of the case of the appellants is that as the 1st respondent and petitioner in IA are brothers and Respondents 2 to 6 are sons of 1st respondent 2 in the IA. The appellants submits that after the death of their father the respondent and the 1st appellant herein along with their brothers partitioned their joint family properties and in the said partition the 1st appellant got an extent of

Ac.1-00 cents in S.No. 179/2 of Manchikalapadu village, as he got lessor portion in other properties. His four brothers got an extent of Ac.0-25 cents each in said survey number including respondent herein. Thereafter, the 1st appellant dig a well on the western side of the suit property to an extent of Ac.0-05 cents and enjoying the same with peaceful possession enjoyment by raising crops in Ac.0-95 cents. The appellants further submitted that the suit schedule property is mutated in his name in all the Revenue records and also mortgaged the same to PACS,

Chimakurthy in the year, 2003 and the same is mentioned in the Encumbrance

Certificate also. Further the appellants herein submitted that he is a small former and accordingly, the small formers certificate is issued showing the suit schedule property. Further the appellants submitted that he availed loan from Vysya Bank by mortgaging the suit property and he sought permission from MRO of

Chimakurthy for cutting Japan Babool trees and utilising the same for coal in the suit property. Further he submitted that one M.Sriram Saran Prasad filed OS 22/2004 against the 1st appellant and shown the suit property in the said suit for attachment. The 1st appellant further submits that he is having an extent of Ac.1- 00 cents and dig well to an extent of Ac.0-05 cents and there is Ac.0-95 cents, whereas the respondent is having Ac.075 cents in the suit survey number.

3. The contention of the respondent is that the suit schedule property is purchased by him under a registered sale deed Dt. 17-11-1970 an extent of Ac.0- 93 cents and since then he has been in possession and enjoyment of the same.

Further he submitted that there is a motor well with water on Eastern side of plots

A & B and it has been used by both parties appellants and respondent for conducting agricultural operations and there is a water channel in between both A and B plots. Further the respondent submitted that the appellants got prepared the documents as if he is having 95 cents of land and taking advantage of the appellants are trying to grab 20 cents of land from the respondent on the northern side portion of 93 cents of the respondents. Further the respondent submitted that the appellants removed the ridge about 4 feet between A and B plots with the help of Proclainer. The respondent further submitted that he got 3 correct the suit land as 93 cents on his application and shown his pattadar passbook and also availed loan on the security of the suit land etc. Further the respondent submitted that he is unable to resist the illegal acts of the appellants, he has filed the petition for permanent injunction against the appellants.

4. Basing on the pleadings the learned I-Addl. Junior Civil Judge, Ongole on contest the said petition was allowed.

5.Now the point for consideration is

Whether the Civil Miscellaneous Appeal is to be allowed or not?

6. Point:- The appellants submits that he is has been in possession and enjoyment of an extent of Ac.0-93 cents in S.No.179/2 of Manchikalapadu village and in support in his contention he examined Rws 1 to 3. On behalf of the respondent the Tahsildar of Chimakurthy is examined as PW1 and he deposed that on application of respondent herein and on the instructions of District Collector, the concerned Revenue Inspector and VRO enquired about the petition schedule property and found the respondent is in actual possession of Ac 0-93 cents and not

Ac.0-72 cents in S.No.179/2 of Manchikalapadu village. The respondent got marked Exs. P1 to P5. Ex.P1-Report given by Addl. Revenue Inspector of

Manchikalapadu village, Ex.P2-Report given by VRO, Ex.P3-Proceedings of

Tahsildar of Chimakurthy, Ex.P4-1-B Namuna and Ex.P5-Adangal. According to respondent 1-B Namuna the 1st Appellant is in possession and enjoyment of Ac.0- 95 cents of land and respondent has got an extent of Ac.0-72 cents in suit survey number.

7.Further the Tahsildar of Chiamkurthy admitted in his cross-examination as there is no surveyor report for measurements of the petition schedule property in the record. The brothers of both petitioners and respondent are examined as Rws 1 to 3 and they stated in chief examination is that the petitioner got an extent of

Ac. 1-00 of land in S.No. 179/2 of Manchikalapadu village and other four brothers along with the respondent herein got an extent of Ac.0-25 cents in the said survey number. Further they deposed that the 1st appellant is in possession and enjoyment of Ac0-95 cents since 40 years by digging well to an extent of Ac.0-05 cents. Further deposed that the respondent herein got an extent of Ac-25 cents and he purchased an extent of Ac.-50 cents from Rws2 and 2 each Ac.0-25 cents.

As such he got Ac.0-75 cents. In suit survey number and not Ac.0-93 cents. Total an extent in suit survey number 1-95 cents and the 1st appellant herein is in 4 possession of Ac.0-25 cents in suit survey number. Further the appellant herein deposed that there was four feet ridge in between plots A and B and now it is not there. According to the appellants the said ridge was removed by 2nd appellant after getting the land measured. All brothers are using water in the well and it is an admitted fact that the 1st appellant has been paying the electricity bills. There is no sale deeds Dt. 05-11-1970 so, the certified copy of the said registration extract is marked. When the documents perused by the court, the documents is full of corrections and there are alterations are made. But the learned I-Addl.

Junior Civil, Ongole can not give finding that the respondent got an extent of Ac 0- 93 cents in S.No. 179/2 of Manchikalapadu village and she has stated she gone through sale deeds Dt. 05-11-1970, Ex. P6 which is full of corrections. Further the

Tahsildar of Chimakurthy examined as PW1 did not produce the report given by the surveyor is the basic documents for the respondents is that the sale deed, Dt.

05-11-1970.

8. As seen from the record, there is no report of surveyor of said land and there is only report to MRO and VRO, to show that the respondent got Ac 0-93 cents in S.No. 179/2. Basing on the reports of MRO and VRO showing the respondent is in possession and enjoyment an extent of Ac 0-93 cents and on the application by the respondent has stated the extent was not mentioned in the

Revenue records. The Tahsildar of Chimakurthy issued proceedings to correct the extent in Revenue records. Out of the 1-B Namuna Adangal showing an extent of

Ac. 0-93 cents of respondents. Not only that the petitioner has been in possession and enjoyment of Ac.0-95 cents since 40 years as per the version of respondent herein and the Revenue records and Encumbrance Certificate shows that the appellants are in possession and enjoyment of Ac.0-95 cents of land in suit survey number. Further the sale deed Dt. 05-11-1970 upon which the respondents are claiming an extent sold to him shown as Ac.0-20 cents each and not Ac.0-25 cents each as stated by him in the petition contention. So, there is so many lacunas in the petition and as there is no document to reveal by the both parties. I think there must be full fledged trial for a just conclusion. Unless and until the full fledged trial is conduct the truth will not come out as there are lacunas on both sides. For Order 39 Rule 1 and 2 of CPC for grant of interim injunction it is important to see the prima-facie case and balance of convenience. The respondent himself stated that the petitioner herein is in possession of an extent 5 of Ac. 0-93 cents. So, the petitioner's possession is established over the Ac.0-93 cents in the suit schedule property.

9.Not only that after the death of the father of 1st appellant and respondent it is more important to note that what are the properties they partitioned and how they partitioned the extents and so, what is the mode of the partition. It cannot be decided on the reports of Addl. Revenue Inspector, VRO and the Tahsildar of

Chimakurty. So unless and until the full fledged trial is completed, the matter cannot be concluded. So, the interim injunction granted by the I-Addl. Junior Civil

Judge, Ongole is hereby set aside and status-quo orders are hereby granted with a

direction to the I-Addl. Junior Civil Judge, to conclude the trial the suit within six months from the date of receipt of this order, giving an opportunity to both parties. Accordingly, the point is answered.

10. In the result, the Civil Miscellaneous Appeal is allowed by setting aside the orders in IA 30/2008 in OS 13/2008, Dt. 28-11-2011 of I-Addl Junior Civil Judge,

Ongole by granting Status-quo orders to maintain till the disposal of the suit. The learned I-Addl. Junior Civil Judge, Ongole is hereby directed to dispose of the matter within six months from the receipt of this order by giving opportunity to both parties.

(Dictated to the Personal Assistant, transcribed by him, corrected and pronounced by me in the open court, this the 25th day of September, 2014)

VII-Addl. District Judge, FAC: II-Addl. District Judge, Ongole.

// APPENDIX OF EVIDENCE // No oral or documentary evidence adduced on either side.

VII-ADJ, FAC: II-ADJ.

6

IN THE COURT OF II-ADDL. DISTRICT COURT, PRAKASAM AT ONGOLE.

(BEFORE THE II-ADDL. DISTRICT & SESSIONS JUDGE, ONGOLE)

Present: Smt. T.Ramani Krupavathi, M.A., B.L., VII-Addl. District Judge, Ongole, FAC: II-Addl. District Judge (FTC), Ongole.

Wednesday, this the 25 th day of September, 2014.

Civil Miscellaneous Appeal No.37 of 2012 Between :

1. Gowraboina Venkateswarlu S/o Kotaiah, 84 years, Cultivation.

2. Gowraboina Yedukondalu S/o Venkateswarlu, 43 years, Cultivation.

3. Gowraboina Ramachandra Rao S/o Venkateswarlu, 41 years, Cultivation.

4. Gowraboina Koteswara Rao S/o Venkateswarlu, 39 years, Cultivation.

5. Gowraboina Krishna S/o Venkateswarlu, 37 years, Cultivation.

6. Gowraboina Parathasaradhi S/o Venkateswarlu, 35 years, Cultivation.

All are resident of K.Agraharam village, Chimakurthy Mandal. … Appellants/Defendants

Vs.

Gowraboina Bakkaiah S/o Kotaiah, 68 years, Cultivation, R/o K.Agraharam village, Chimakurthy Mandal.

... Respondent/Plaintiff.

CIVIL MISCELLANEOUS APPEAL FILED ON BEHALF OF THE APPELLANT AGAINST THE ORDER AND DECREETAL ORDER DATED 28-11-2011 IN I.A. NO.30/2008 IN

O.S. NO.13/2008 ON THE FILE OF I-ADDITIONAL JUNIOR CIVIL JUDGE, ONGOLE.

Between:

Gowraboina Bakkaiah S/o Kotaiah, 68 years, Cultivation, R/o K.Agraharam village, Chimakurthy Mandal.

... Petitioner.

And

1. Gowraboina Venkateswarlu S/o Kotaiah, 84 years, Cultivation.

2. Gowraboina Yedukondalu S/o Venkateswarlu, 43 years, Cultivation.

3. Gowraboina Ramachandra Rao S/o Venkateswarlu, 41 years, Cultivation.

4. Gowraboina Koteswara Rao S/o Venkateswarlu, 39 years, Cultivation.

5. Gowraboina Krishna S/o Venkateswarlu, 37 years, Cultivation.

6. Gowraboina Parathasaradhi S/o Venkateswarlu, 35 years, Cultivation.

... Respondents.

This Civil Miscellaneous Appeal is preferred by the appellants against the orders in IA 30/2008 in OS 13/2008 of I-Addl. Junior Civil Judge, Ongole.

Presented on 20-03-2013 and filed on 09-06-2012 A Court fee of Rs.3/- is paid u/Art.3(i) of Sch.II of A.P.C.F. & S.V. Act. This Civil Miscellaneous Appeal coming on 18-09-2014 before me for hearing and disposal in the presence of Sri K.Srinivasulu, Advocate for Appellants and of Sri K.Brahma Reddy, Advocate for respondent and upon perusal of the appeal, and other material on record, and having stood over for consideration till this day, this Court doth order and decree :

1. that the Civil Miscellaneous Appeal be and the same is hereby allowed by setting aside the orders in IA 30/2008 in OS 13/2008, Dt. 28-11-2011 of I- Addl. Junior Civil Judge, Ongole and by granting Status-quo orders to maintain till the disposal of the suit in the lower court; 7

2. that the I-Addl. Junior Civil Judge, Ongole is hereby directed to dispose off the suit within six months from the date of receipt of this order by giving opportunity to both parties; and

3. that each party do bear their costs.

Given under my hand and seal of the Court, this the 25th day of October, 2014.

VII-Addl. District Judge, FAC: II-Addl. District Judge, Ongole.

// TABLE OF COSTS // - Nil - (CM &FC not filed on either side)

VII-ADJ, FAC: II-ADJ.