Sri T. Surya Narayana

VI-ADDITIONAL DISTRICT AND SESSIONS JUDGE,MARKAPUR

Prl District Court Ongole · Prakasham · Andhra Pradesh

Sri T. Surya Narayana, VI-ADDITIONAL DISTRICT AND SESSIONS JUDGE,MARKAPUR, is posted at Prl District Court Ongole, Prakasham, Andhra Pradesh, India. 23 court orders on record since 2013. 11 judgments with full text available. Primarily handles CRLMP, A, OS cases.

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OS/106/2011 Compromised

Athota Subbayamma vs Dhullipalla Ramanujamma

08 Aug 2013

IN THE COURT OF V- ADDITIONAL DISTRICT JUDGE (FAST TRACK

COURT), PRAKASAM AT ONGOLE

Present : Sri T.Surya Narayana, B.Com., B.G.L.,

Judge, Family Court –cum-

VIII-Additional District Judge, Ongole, FAC: V-Additional District Judge, (FTC), Ongole.

Friday, this the 8th day of August, 2013.

ORIGINAL SUIT NO.106/2011

Between:

Athota Subbayamma, W/o Masthanrao, Hindu, aged about 55 years, House-wife, R/o Flat No.503, Sai Sreenivasam Apartment, 2nd Line, Maruthinagar, Guntur.

… Plaintiff.

And

1. Dhullipalla Ramanujamma, W/o. Late Venkata Ramamurthy @ Ramamurthy, Hindu, aged about 70 years, House-wife, R/o Ramakoor (V), J. Panguluru Mandal, PrakasamDistrict.

2. Dhullipalla Bhaskararao, S/o Late Venkata Ramamurthy @ Ramamurthy, Hindu, aged 52 years, cultivation, R/o Muppavaram (V), J. Panguluru Mandal, Prakasam District.

... Defendants.

This suit is coming on 08-07-2013 before me for hearing, in the presence of Y. Sunil Kumar, Advocate for Plaintiff and of Sri M. Raghavarao, Advocate for 2nd Defendant, and 1st defendant remained exparte, upon perusal of material on record and having stood over for consideration till this day, this court delivered the following:

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

1.The plaintiff Athota Subbayamma filed this suit for partition of Item

Nos. 1 to 15 of the suit schedule property into 9 equal shares by metes and bounds and to allot 4 such shares to her and 4 such shares to D2 and one share to

D1 and to put her in possession of the same and for grant of means profits in respect of her respective share from the date of suit till the date of delivery of possession and for costs.

2.The brief averments of the plaint is as follows:

The father of the plaintiff and 2nd defendant and husband of 1st defendant, by name, Venkata Ramamurthy @ Ramamurthy and his brothers were the absolute owners of the suit schedule properties and other properties, which were inherited by them from their ancestors and they were in joint possession and 2 enjoyment of the same. During his life time, Rammurthy performed the marriages of his children. At the time of marriage of plaintiff, her father stated that the properties were in joint possession and promised that he will give some property to the plaintiff, after partition of the joint family properties between him and his brothers. The marriage of plaintiff was performed in the year 1972. Since then, she was living along with her husband at Guntur. Venkata Ramamurthy and his brothers were continuously in joint possession and enjoyment of the suit schedule properties and other properties. During his life time Venkata Ramamurthy purchased an extent of Ac.3-66 cents in S.No.145 under a registered sale deed in his name, and out of it, he had executed a registered gift deed dated 10-08-1982 in favour of his wife i.e., D1 for an extent of Ac.1-35 cents and the remaining extent of Ac.2-31 cents was in joint possession of Venkata Ramamurthy and his family members. Venkata Ramamurthy died intestate, leaving behind his wife i.e.,

D1, son i.e., D2 and daughter i.e, plaintiff in the year 1984. On his death, the plaintiff and defendants, who are his legal heirs and successors, inherited the share of Venkata Ramamurthy in his ancestral property and were in joint possession and enjoyment of the same.

03.While so, recently the plaintiff came to know that D2 in collusion with his paternal uncles, got partitioned the ancestral properties by way of partition

dated 18-05-1994. Immediately, the plaintiff obtained the certified copy of the

said partition deed and learnt that, D2 was allotted suit schedule property as legal heir of late Ramamurthy. The plaintiff claimed that, D2 alone is not the legal heir of Ramamurthy and herself and D1 along with D2 are also entitled to inherit the share of late Ramamurthy. As such, the plaintiff demanded D2 in the presence of mediators for amicable partition of the properties as per 'D' schedule and Ac.2-31 cents belonging to her father. Though, D2 agreed to do partition, he was postponing the same on the one pretext or the other.

04.According to the plaintiff, D2 demolished the old house and constructed a RCC building with the income derived from the joint family properties and living therein. Later, the plaintiff came to know that D2 was trying 3 to alienate some of the suit schedule properties with a view to evade legitimate share of the plaintiff. Hence, she got issued registered notice dated 07-01-2011 demanding D2 for amicable partition of the suit schedule properties and to allot her share. D2 received the notice and got issued a reply notice with false and untenable allegations. The plaintiff stated that herself, D2 and their father

Ramamurthy are entitled to 1/3rd share and out of the share of Ramamurthy they are entitled to three equal shares each and accordingly herself and D2 are entitled 1/3 + 1/9 = 4/9 each and D1 is entitled to 1/9 share. The plaintiff was constrained to file the present suit for partition of the suit schedule properties into 9 equal shares and for allotment of 4 shares each to herself and D2 and one share to D1 and also for means profits in respect of her share.

05.D1 remained exparte. In his written statement, D2 admitted the relationship between him and plaintiff and D1. However he denied that his father late V. Ramamurthy and his brothers are the owners of suit schedule properties and other properties and they inherited the same from their ancestors and they were in joint possession and enjoyment of the same. According to D2, his brother

Venkata Ramamurthy, D. Ranganayakulu, Adinarayana Chowdari and

Venkateswararao are brothers. They have partitioned the family properties in the year 1970 orally and each of them were enjoying their respective shares of the properties and also mortgaged their properties to financial institutions. On 14-10- 1982 Venkata Ramamurthy died. During his life time, D2 with his consent hypothected the properties, which fell to the share of Ramamurthy to ING Vysya

Bank and also the properties given to him by his father.

06.According to D2, the marriage of the 1st plaintiff was performed in the year 1972 and at the time of her marriage, huge amount of dowry was given in addition to presentation of valuable jewelery and movable properties to her.

The plaintiff relinquished her rights over the landed properties and as such no share in the landed properties was given to her. D2 denied that at the time of marriage of the plaintiff late Ramamurthy promised to give a share to her in the landed properties. Even by the date of marriage of the plaintiff Venkata 4

Ramamurthy and his brothers partitioned the properties in the year 1972 and hence, the question of late Venkata Ramamurthy promising to give the plaintiff some property does not arise. Eversince the date of her marriage in the year 1972, the plaintiff was residing along with her husband at Guntur.

07.D2 admitted that his father with his own funds purchased an extent of Ac.3-66 cents of land in S.NO.128 and 145 and out of it, an extent of Ac.2-31 cents in S.NO.145 i.e., Item No. 12 of the pliant schedule property. Out of the said extent of Ac.3-66 cents, late Venkata Ramamurthy settled an extent of Ac.1-35 cents in S.No.128 in favour of his wife i.e., D1 on 12-08-1982 by executing a registered settlement deed. D2 claimed that the remaining extent of Ac.2-31 cents in S.No.145 i.e., Item No.12 of the plaint schedule was given to him by his father during his life time and since then he was in possession and enjoyment of the same. D2 also stated that during the life time of his father, he had hypothecated

Item No.12 of plaint schedule property along with Item No.7 of the plaint schedule to Vysya Bank limited under a hypothecation deed dated 30-09-1982. He denied that, Ac. 2-31 cents in S.No.145 i.e., Item No.12 of plaint schedule is in joint possession of Ramamurthy and his family members.

08.D2 further stated that during the life time of Ramamurthy, plaintiff and D1 relinquished their interest in favour of Ramamurthy and himself (D2), because Ramamurthy gave property to D1 and also gave valuable movable property to the plaintiff and performed her marriage in a large scale. According to

D2, his father incurred debts for the marriages of his children and to meet family expenses and suits were filed against his father. After death of his father, he was impleaded in those suits as legal heir of his father and he discharged the family debts. By the date of death of Ramamurthy, he was in possession and enjoyment of the properties fell to his share as per the family partition effected in the year 1972. After his death, D2 has been cultivating the lands of his paternal uncles.

While so, the partition deed was entered into on 18-05-1994. As there was no document regarding the earlier partition, the partition deed dated 18-05-1994 was recorded. By the date of partition deed dated 18-05-1994, Venkateswararao, 5 father of Chandrasekhara Babu died and Venkata Ramamurthy also died and

Ranganayakulu and Adinarayana are the surviving paternal uncles of D2. His paternal uncles gave some properties to D2. Adinrayana Chowdari got Ac.0-95 cents in S.NO.287 i.e., Item No.3 of plaint schedule. The said Adinarayana

Chowdari was unable to cultivate the said land due to his business activities. As such, he permitted D2 to cultivate his lands. Prior to 1994, the said Adinarayana

Chowdari gave Ac.0-95 cents in S.NO.287 orally to D2. Subsequent to 1994, the said extent of property was mutated in the name of D2. Venkateswararao got

Ac.1-04 cents in S.NO.167 and 168 and Ac.1-04 cents of land in S.No.281 and 282.

The said two items of land are Items No.8 and 9 of the pliant schedule property, respectively. Since 1982, D2 cultivated those lands. The revenue records showed the names of Venkateswara Rao and his son Chendrasekhara Babu. They have agreed to surrender items No. 8 and 9 as per oral understanding and surrendered the same to D2. Item No.11 of the plaint schedule is the property of paternal grand mother of D2 and it was partitioned and it is not one of the ancestral family properties. In the partition deed dated 18-05-1994 'D' schedule properties were allotted to D2. The same were allotted to his father in the partition in the yer 1970 and the same were given to D2 by his paternal uncles and their children. The plaintiff having obtained registration copy of the partition deed was fully aware of the contents of the said partition deed since 1994. D2 also denied all other averments and allegations made by the plaintiff in the plaint. D2 contended that the plaintiff is not entitled to question the partition deed or the properties allotted to him in the said partition deed, without impleading the other sharers. D2 admitted about the legal notice issued by the plaintiff and the reply notice dated 04-02-2011 got issued by him. He prayed to read the contents of his reply notice as part and parcel of his written statement.

09.D2 also stated that he sold away Item No.5 of the plaint schedule to

Thatha Ramulu more than 12 years ago and he was (D2) not in possession of Item

No.5 of the plaint schedule property. The extent of Item No.15 as mentioned in the pliant is not correct. D2 entitled to 4 cents only in Item No.15. Item No.14 was acquired by D2 from Chandrasekhar Babu with his own funds. Part of Item No.13 was acquired by D2 from Dhulipala Bhava Narayana under a registered sale deed 6

dated 02-02-1995. The remaining part of Item No.13 was acquired by D2 from

Adinarayana with his own funds. Only pliant 'A' schedule site of item No.13 was settled by D2 and his younger son Sriram in favour of his elder son by name

Dhulipala Anil Kumar by a registered settlement deed dated 24-01-2008.

Subsequently, the son of D2, who was an employee Software Engineer in United

Kingdom, with his own funds and by borrowing amounts from financial institutions, constructed a house in Item No.13 of pliant schedule after submitting a plan to the

Gram panchayat, Muppavaram and Item No.13 of the plaint schedule belongs to said Anil Kumar and D2 has no concern with it. As such, the said Anil Kumar is a proper and necessary party to the suit. D2 contended that plaintiff is not entitled to any share in the plaint schedule properties. D2 alleged that due to increase in the value of the properties, the plaintiff got issued notices and filed this suit. He also alleged that at the instigation and support of D1, the plaintiff filed the present suit. According to him, the computation of the shares in para No.6 of the plaint is not correct. D2 contended that the plaintiff is not entitled to any rights by virtue of Act 39 of 2005, as the same has no retrospective effect. D2 claimed that he was in possession and enjoyment of the properties eversince the date of partition and he was issued passbook and title deed and he borrowed amounts from financial institutions by mortgaging properties and later discharged the same. He further contended that the rights of the plaintiff, if any, extinguished by efflux of time and hence, suit is not maintainable for partition. According to D2, D1 never claimed any rights in the suit schedule properties. The plaintiff was not a sharer and she was not in possession of the property in any capacity and payment of court fee and the alleged cause of action are not correct. D2 prayed to dismiss the suit with costs.

10.Basing on the above pleadings, the following issues were framed for trial :

1) Whether the plaintiff is entitled for partition of the suit schedule properties as prayed for?

2) Whether plaintiff relinquished her right in the suit schedule properties as pleaded by D2?

3) Whether plaintiff is entitled for means profits?

4) To what relief?

11.In support of her case the plaintiff examined herself as PW1 and also examined one M. Venkata Rao as PW2 and marked Certified copy of partition deed

dated 18-05-1994 as Ex.A1, office copy of registered notice dated 07-01-2011 as

Ex.A2 and reply registered notice of D2 as Ex.A3.

12.In support of his case, D2 examined himself as DW1 and got marked

Ex.B2 to B46 and also examined one V.V. Rama Murthy as DW2 and through him got marked the property list dated 15-05-1970 as Ex.X1. During the cross examination of PW1 the photo containing D2 and his wife and the plaintiff at the time of celebrating the function of Gruhapravesam ceremony was confronted to her and the same was marked as Ex.B1.

13.Written arguments were filed on behalf of the plaintiff and D2 reiterating their respective pleadings and contentions raised in the plaint and written statement.

14.Heard the learned advocates for plaintiff and defendants.

15.ISSUE NO.1:-

The plaintiff prayed for partition of suit schedule properties on the ground that at the time of their marriage in the year 1972, her father Venkata

Ramamurthy @ Ramamurthy promised that he will give some properties to her after partition of joint family properties between him and his brothers. Her case is that, her father and his brothers were the absolute owners of the suit schedule properties and other properties, which were inherited from their ancestors and they were in joint possession of the same and after the death of her father in the year 1982, herself and defendants were the surviving of legal heirs of her father and his estate. The suit schedule properties devolved upon her and defendants and all of them were in joint possession of the same. She alleged that D2 colluded 8 with his paternal uncles and partitioned ancestral properties by way of a partition deed dated 18-05-1994. According to her, she came to know about the said partition, just prior to the date of filing the present suit and after knowing the same, she obtained the certified copy of said partition deed and came to know that suit schedule properties were allotted to the share of D2 as the sole legal heir of late Ramamurthy. The plaintiff claimed that D2 alone is not the legal heir of her late father and that herself and her mother, who is D1, are also legal heirs of her father. As such, she got issued legal notice dated 07-01-2011 calling upon

D2 for amicable partition of suit schedule properties and to allot her share as per law. D2 received the same and got issued a reply notice with false and frivolous allegations. She claimed that herself and D2 and her farther are entitled to 1/3th share each, and out of the 1/3th share of their father, herself and defendants are entitled to 1/9th share each, thereby herself and D2 are entitled to 4/9th share each and D1 is entitled for 1/9th share in the suit schedule properties.

16.The case of the D2 is that the ancestral properties were orally partitioned in the year 1970 itself between her father and his brothers and that, the same was reduced into writing and was registered on 18-05-1994 and therefore as per the exception provided in the proviso appended Sub Section (1) and Section 6 of the Hindu Succession (Amendment) Act, 2005, the plaintiff is not entitled to seek partition of the suit schedule properties as the same were partitioned before 20th December, 2004.

17.With regard to Item No.12 of the suit schedule property namely Ac.2- 31 cents of land in S.NO.145, the case of the both the parties is that their father purchased an extent of Ac.2-31 cents in S.NO.145 and an extent of Ac.1-35 cents in S.NO.128 of Muppavaram village of J.Panguluru Mandal and executed a registered gift deed dated 10-08-1982 in favour of his wife i.e, D1 in respect of

Ac.1-35 cents of land in S.NO.128. The claim of plaintiff is that the remaining extent of Ac.2-31 cents in S.NO.145 was in joint possession of her father along with his family members. Whereas, the claim of D2 is that during the life time of his father, he gave the said extent of Ac.2-31 cents in S.No.145 to him and ever 9 since he was in possession and enjoyment of the same and he mortgaged the same along with Item No.7 of the pliant schedule to ING Vysya Bank and executed hypothecation deed dated 30-09-1982 and hence, Item No.7 and 12 are not joint family properties. D2 also contended that Item No.4 of the pliant schedule i.e.,

Ac.0-95 cents in S.NO.287 fell to the share of one of his paternal uncles, by name,

Adinarayana Chowdary and he was unable to cultivate it due to his business activities and permitted him (D2) to cultivate the same and prior to 1984 his paternal uncle gave the said property orally to him and subsequent to 1984 the said extent of property was mutated in his name.

18.With regard to Item 8 and 9 of the suit schedule property, the contention of the D2 is that his another paternal uncle, by name, Venkateswara

Rao and his son Chandrasekhara Babu were owners of the land to an extent of

Ac.1-04 cents in S.No.167 and 168 and an extent of Ac.1-04 cents in S.NO.281 and 282, as per revenue records and they have surrendered those lands to him (D2) as he was cultivating the same since 1982. According to D2, Item No.11 of the suit schedule is the property of his paternal grand mother and it is not ancestral property. With regard to 'D' schedule property, the case of D2 is that the same fell to the share of his father during partition in the year 1970 and 'D' schedule also forms part of the properties given to him by his paternal uncles and their children.

19.From the said pleadings and contentions of both the parties, it has to be seen whether plaintiff is able to prove that all the 15 items of the pliant schedule properties are ancestral properties and there was no prior partition of the same and therefore she is entitled for partition and for allotment of 4/9 th share therein.

20.In her chief-affidavit the plaintiff, as PW1, has reiterated the contents of the plaint and marked Ex.A1 to A3. In her cross examination, the plaintiff stated that her marriage was performed in the year 1972 and her husband was having Ac.15-00 of land. She also stated that she got read over the contents of 10 the written statement filed by D2. It was elicited from her that as per her instructions notice was given by her counsel before filing the suit. She admitted that she got mentioned in the said notice that since the date of death of her father

Ramamurthy, D2 did not give her share and was enjoying the same by himself by misusing the income derived from the suit schedule properties. She stated that to her knowledge, her father did not obtain loan from any bank by mortgaging the properties. She has denied that her father and his brothers have partitioned their joint family properties. She admitted that she did not show the brothers of her father as parties in the suit. She also admitted that D2 has mortgaged Ac.2-31 cents i.e., Item No.12 and Ac.2-35 cents land i.e., Item No.7 of plaint property with the bank. She further stated that neither herself nor her father objected for the said mortgage. She claimed that herself and D2 have cleared the debt as per the decree suffered by her father in O.S.No.328/1981 on the file of District Munsif

Court, Addanki. She denied that D2 alone cleared the said debt. She also denied that an extent of Ac.0-92 cents was given to D2 by her father and Item No.4, 8 and 9 do not belong to her father, and that, her senior paternal uncle Venkateswara

Rao gave Item No.4, 8 and 9 to D2. She stated that she did not produce any documentary evidence to show that Items No.4, 8 and 9 belong to her father.

According to her, Item No.11 belongs to her paternal grand mother, by name,

Raghavamma. She admitted that Anil Kumar was working as Software Engineer in

United Kingdom. She further stated that she doesn't know whether said Anil

Kumar constructed a building. She has admitted that she attended the

Gruhapravesam function of the said house and at that time photographs were taken. On the basis of said admission of the plaintiff, Ex.B1 the said photograph was marked as Ex.B1 to show that she also participated in the said function. She admitted that she did not show the said Anil Kumar as a party. According to her, she does not know whether Item No.15 i.e., Ac.6-00 of land belongs to third parties and whether the said Anil Kumar borrowed amount from the Bank by mortgaging the property. She stated that D2 constructed house in Item NO.13 of the plaint schedule. She denied that D2 has nothing to do with the said property.

She also denied that she has relinquished her rights in the suit schedule property and filed the suit unnecessarily.

21.The plaintiff has examined one Manukonda Venkatarao, who is a third party, as PW2, in support of her case. In his chief-affidavit, PW2 stated that he knows the parties to the suit and their relationship. According to him, he had acted as one of the elders to settle the marriage of the plaintiff with one Mastan

Rao and at that time the father of plaintiff promised to give Ac.5-00 of land to the plaintiff from out of his undivided joint family properties, which was enjoyed by him along with his brothers, towards Pasuku Kunkuma to the plaintiff, after partition of the joint family properties. Either in the pliant or in her chief-affidavit, the plaintiff did not plead or state that at the time of her marriage, her father promised to give Ac.5-00 of land to her towards her Pasupu Kunkuma. Her plea is that at the time of her marriage, her father promised to give some properties to her. Therefore, the version of PW2 that the father of plaintiff promised to give

Ac.5-00 of land to her from out of the undivided joint family property at the time of her marriage is a new story introduced by PW2 for the first time in his chief- affidavit. Hence, the plea of the plaintiff that at the time of her marriage in the year 1972 her father promised to give her some property or Ac.5-00 of land from out of the undivided joint family properties towards her Pasupu Kunkuma cannot be accepted as true and correct.

22.In his chief-affidavit PW2 also stated that the marriage of the plaintiff was performed in the year 1972 and eversince she was living with her husband.

The said fact is an undisputed fact. It is also not in dispute that the father of plaintiff and D2 and husband of D1, by name, Venkata Ramamurthy died in the year 1982. According to PW2, the said Ramamurthy died in the year 1982 without partitioning the joint family properties and also failed to fulfil his promise made to the plaintiff. According to PW2, the plaintiff told him that D2 was paying maktha towards her share in the joint family properties till the year 2009. In this regard also, either in the plaint or in her chief-affidavit, the plaintiff did not plead that D2 used to pay maktha to her towards her share upto the year 2009. Hence, the said version of PW2 is also not reliable. PW2 also stated that plaintiff also informed to him that since 2010, D2, who was managing the joint family properties, failed to give her share amount and at the request of plaintiff, he along with others and the husband of plaintiff went to the house of D2 and asked him to give Ac.5-00 of land 12 to the plaintiff as per the promise made to her by her father, but, D2 refused to do so, and they have informed the same to the plaintiff. It is also to be noted that the said version of PW2 is not at all pleaded or stated by the plaintiff either in her plaint or in her chief-affidavit. Hence, no credence can be given to the said version of PW2.

23.In his cross examination, PW2 admitted that there is a distance of about 55 K.Ms. between his village i.e., Yalamanda and Muppavaram village.

According to him, the husband of plaintiff was having Ac.25-00 of land before his marriage with the plaintiff. PW2 categorically stated that he does not know the particulars of the properties of late Venkata Ramamurthy and his brothers. He denied that he got knowledge about the earlier partition of the suit schedule properties. Again he stated that he does not know whether there was partition between D2 and his junior paternal uncles in respect of earlier oral partition. It was elicited from PW2 that he came to know that the plaintiff demanded the defendants for partition and they refused the same. On a fair reading and scrutiny of the entire version of PW2, it is quite clear that he had no knowledge about the details of the subject matter of the suit and his evidence is not in corroboration with the pleadings of the plaint and with the evidence of the plaintiff. Hence, it is held that the evidence of PW2 is not reliable.

24.In his affidavit in chief and four additional affidavits in-chief, D2, as

DW1, has reiterated the averments made in his written statement and marked

Ex.B2 to B46. In his cross-examination, D2 denied that his father promised to give 1/3rd share to the plaintiff towards her Pasupu kunkuma at the time of her marriage. He admitted that in Ex.B6 to B11, namely, certified copies of adangles for the faslies upto 1402, the names of his paternal grand mothers, by name,

Chinnamai and Raghavamma and the names of his senior paternal uncles and junior paternal uncles and the name of his father were mentioned. He denied that his father, himself and D. Raghvamma obtained loan form the bank by mortgaging the land in the year 1972 as per Ex.B2. From Ex.B2 it is seen that only D. Venkata

Ramamurthy, who is the father of plaintiff and D2 and husband of D1, has 13 mortgaged document NO. 2647 of 1978 in respect of an extent of Ac.2-24 cents in

S.NO.141, Ac.1-39 cents in S.NO.128, Ac. 0-80 cents in S.No.84, Ac. 0-88 cents in

S.NO.287, Ac. 1-09 cents in S.NO.290, Ac. 2-80 ½ cents in S.No. 145 and Ac.0-64 cents in S.NO.259/3 of Muppavaram village with the Union Bank of India, on 12- 09-1978 for obtaining loan of Rs.7,000/-. Immediately after denying the said suggestion, D2 admitted the suggestion that his father obtained loan under Ex.B2 by mortgaging an extent of Ac.4-66 cents, which fell to the share of his father. He also admitted that he obtained loan under Ex.B12 in the year 1982 by mortgaging

Ac. 4-73 cents of land in S.No.145 and 141 and his father mortgaged an extent of

Ac. 9-96 cents in the years 1976 and 1978 in S.NO.141 and other survey numbers.

According to D2, Raghavamma gave an extent of Ac. 0-40 cents to him in partition under Ex.B17. D2 admitted that in Ex.B17 there was no mention regarding the properties given to him by his senior paternal uncle-Venkateswara Rao and his son

Chandrasekhar Babu, and that, said Chandrasekhar Babu obtained loan under

Ex.B4 by mortgaging the property in S.No.234 to an extent of Ac.0-80 cents, in

S.NO.167/1 to an extent of Ac. 2-90 cents and in S.No.168/1A to an extent of Ac. 1- 16 cents, and that, the said Chandrasekhar Babu got 'C' schedule lands as per

Ex.B17, and that, the properties shown in Ex.B4 are not mentioned in 'C' schedule of Ex.B17. D1 gave a clarification by stating that the properties mortgaged under

Ex.B4 were given by him to Chandrasekhar Babu and hence the same did not find place in 'C' schedule of Ex.B17. According to him, he purchased the property from

D. Bavannarayana with his own income derived from diary farms. It is also the admission of D1 that he obtained loan by mortgaging his entire property covered by Ex.B17 in the years 1993, 1999 and 2004, and that, he had mortgaged an extent of Ac.5-77 cents under Ex.B14 and 15 and obtained loan from Vysya Bank,

Muppavaram village and also obtained loan of Rs.1,00,000/- from co-op0erative society in the year 2010 by mortgaging an extent of Ac.1-36 cents of land in

S.NO.128, Ac.1.65 cents in S.No.287 and Ac. 1.6 cents in S.No.280. D1 further admitted that plaintiff was neither a party nor a witness to Ex.B17. He asserted that the plaintiff has no right and hence, she was not a party to Ex.B17. D1 denied that till 1994 there was no partition and that after 1994, they were enjoying the property as per their convenience, and that, they have not mortgaged the properties, and that, there was no partition between his father and his brothers, 14 and that, they have obtained loan by mortgaging the total extent of properties.

D1 admitted that one Pathuri Lakshmaiah filed O.S.228/1981 against his father on the file of Principal Junior Civil Judge's Court, Addanki, for recovery of amount and after the death of his father, himself and his sisters were added as parties and the said matter was compromised and they have paid the amount. He also admitted that he paid the amount to one M. Ramulu. He denied that they used to give the usufructs from the land to the plaintiff till the date of marriage of his son, and that, plaintiff is entitled for a share because the suit schedule properties are ancestral properties, and that, the plaintiff demanded for partition orally through mediators, by name, Bavannarayana and Subbarao, before she gave notice, and that, with a malafide intention he refused to give her share, and that, plaintiff and

D1 got shares as claimed in the plaint. D1, however admitted that all the suit schedule properties are ancestral properties. D1 admitted that the properties mentioned in the declaration were not shown in the partition deed, and that, declaration given by padmavathi is not mentioned in the partition deed.

25.In this chief affidavit DW2 stated that he worked as village Karanam of Muppavram from 1979 to 1984 and got acquaintance with the records and all families in the village since his childhood as his father and grand father worked as village Karanams. He also stated that he knows Venkata Ramamurthy, who is the father of plaintiff and his brothers by name Ranganayakulu, Adinarayana

Chowdary and Venkateswara Rao. According to DW2, even by the time, he assumed charge, the father of plaintiff and his brothers were divided and were living separately and the father of plaintiff died in the year 1982, and during his tenure of office, the father of the plaintiff and her brother Chendrasekhara Rao have mortgaged the property and he gave a certificate to that effect. During the life time of the father of the plaintiff, D2 also mortgaged some of the properties and executed a mortgage deed i.e., Ex.B12 in favour of Vysya Bank and

Chendrasekara Babu mortgaged property and executed original of Ex.B4.

According to DW2, the paternal uncle of D2 gave some properties to him and D2 also carried on the milk business. DW2 stated that when he was 15 years old, the father of plaintiff and his brothers came to their house and discussed about their family partition and one of the brothers of the father of the plaintiff by name 15

Venkateswara Rao prepared a rough list of properties for their partition and all the brothers accepted the same and gave the said list to his (DW2) father for mutation in the revenue records. Later, his father mutated their names in the revenue records as per the list given by said Venkateswra rao in the presence of all his brothers. Recently, D2 met him and requested to give the said list and he searched for it and traced out the same and brought it to the court at the request of D2. Finally DW2 stated that plaintiff was not in possession of any properties either personally or through her tenants. DW2 has marked the said list of properties dated 15-05-1970 as Ex.X1. In his cross-examination, DW2 admitted that he was working as conductor in APSRTC and about four months back he was removed from service. He also admitted that Venkateswara Rao is practicing as

Doctor at Narasaraopet and Adinarayana Chowdary was doing business at Eluru and Ranganayakulu and Venkata Rama Murthy were cultivating the suit schedule properties and other properties to an extent of about Ac.40-00 of land. He denied that Ex.B17 is not a correct document, and that, Ex.B24 was created during his tenure. He admitted that in Ex.X1 there was no mention that the properties were partitioned, and that, it does not contain signatures, and that, there was no village karanma as on the date of Ex.X1. According to him, he was removed from service on 09-01-1984 because the posts of Karanam and Munasabu were abolished. He did not hand over Ex.X1 to the revenue department, as he was not asked to do so. He denied that he deposed falsehood to help D2. Finally he stated that he does not know whether the parties have partitioned their properties as per Ex.X1.

26.As already noted above, Ex.B2, B3 and B11 to B15 are the registration extracts of the mortgage deeds dated 06-09-1972, 12-09-1978, 15-10- 1982, 13-09-1982, 15-09-1983, 27-10-1999 and 22-09-2004, respectively, and D2 and his father Venkata Ramamurthy and brothers of Venkata Ramamurthy have mortgaged some of the suit schedule properties with different banks for the purpose of obtaining loans. Ex.B6 to B11 are the certified copies of adangles upto the fasli 1402. They show the names of paternal grand mothers of D2, by name,

Chinnamai and Raghavamma and the names of his senior paternal uncles and junior paternal uncles and the name of his father, as owners and possessors of the suit schedule properties for the fasali up to 1402.

27.Ex.B16 is the certified copy of the declaration dated 31-12-1998 given by D2 in form-B, U/Sec. 36 (1) of A.P. Co-operative Societies (Act No.7) of 1964 for creating the charge for obtaining a loan of Rs.1,00,000/-. It shows that an extent of Ac.1-36 cents in S.NO.128, Ac.1-65 cents in S.NO.287 and Ac. 1-6 cents in S.NO.280 of Muppavaram village were mortgaged to the primary agricultural co-operative society, J.V.Palem. Ex.B17 is the registered copy of the partition deed dated 18-05-1994, under which D2 claimed that all the suit schedule properties, except Item No.12 were partitioned by the brothers of his father and himself. The learned advocate for D2 contended that since Ex.B17 was registered on 18-05-1994 i.e., earlier to 20-12-2004, as per the exception provided in the proviso to Sub-Section (1) of Sec. 6 of Hindu Succession (Amendment) Act, 2005, the plaintiff is not entitled for seeking partition of the suit schedule properties. On the other hand, the learned advocate for the plaintiff argued that suit schedule properties including Item No. 12 were not partitioned as per Ex.B17, and that, it was a created document, and that, therefore the same cannot be relied upon to deny the right of the plaintiff to seek partition of the suit schedule properties.

28.In this connection it is relevant to note that Ex.B17 is a registered partition deed dated 18-05-1994. Therefore the exception provided in the proviso to Sub Section (1) of Sec. 6 of Hindu Succession (Amendment) Act, 2005, is applicable to this case. The learned advocate for the plaintiff relied upon a decision of the Supreme Court in Ganduri Koteshwaramma and other Vs.

Chakiri Yanadi and other reported in 2012 (1) ALT 29 (SC) andcontended that on and from September 9, 2005, new Section 6 of Hindu Succession (Amendment) Act, 2005 came into force and the said new Section provides parity of rights in the copercener property among male and male members of a joint

Hindu family on and from September, 9, 2005 and the Legislature has conferred substantive right in favour of the daughters and a daughter of a copercener becomes a copercener by birth in her own rights and liabilities in the same manner as the son and thus on and from September 8, 2005 the daughter is entitled to a share in the ancestral property and is a copercener as if she had been a son and such right of daughter is absolute. According to him, the plaintiff 17 being daughter of D. Venkata Rama Murthy she is also entitled for a share as a copercener in the suit schedule properties. However, in the same decision, it was also held that such a right of a daughter is subject to the exception provided in the proviso appended to sub-section (1) of Sec. 6 by the said Act. The excepted categories to which exception Sec. 6 of 2005 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December, 20, 2004 and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub-Section (5) of Sec. 6 leaves no room for doubt as it provides that this section shall not apply to the partition which has been effected before December 20, 2004. For the purpose of new Section 6 it is explained that 'partition' means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of Court.

29.In the present case admittedly partition was effected on 18-05-1994 under Ex.B17 (Ex.A1) and the same was registered as per the Registration Act, 1908. From the oral and documentary evidence produced by D2 it is quite clear that the partition effected under section Ex.B17 was acted upon by the respective share holders. In this connection, it is relevant to refer to the plea taken by the plaintiff in the plaint. She stated that just before fling of the suit she came to know that D2 colluded with his paternal uncle and got partitioned the ancestral properties by way of partition deed dated 18-05-1994 and immediately she obtained a certified copy of the same and leant that suit schedule properties fell to the share of D2. Her contention is that D2 alone is not the legal heir of her father and she along with D1 are also legal heirs of her father and therefore she is also entitled for a share along with the defendants in the suit schedule properties and hence, she demanded D2 for partition of the suit schedule properties. But D2 did not do so and hence, she filed present suit after giving registered notice dated 07- 01-2011. She has produced certified copy of said partition deed as Ex.A1 and the office copy of her legal notice dated 07-01-2011 as Ex.A2 and reply notice of D2 as

Ex.A3. In her cross-examination plaintiff has stated that she does not know whether there was a registered partition deed dated 18-05-1994. Again she stated that she knows about the registered partition deed. Either in the pliant or 18 in her chief affidavit the plaintiff did not make any allegation that Ex.B17 (Ex.A1) partition deed was not a valid partition deed as per law. Though she alleged that

D2 colluded with his paternal uncles and got partitioned the ancestral properties as per Ex.B17, she did not adduce any evidence to that effect. Since Ex.B17 is a registered partition deed dated 18-05-1994, the exception appended to Sub-

Section (1) of Sec. 6 of Hindu Succession (Amendment) Act, 2005, is applicable and accordingly it is held that the plaintiff has no right to question the validity of

Ex.B17 and to seek partition of the suit schedule properties.

30.With regard to Item No.12 it is an admitted case of the plaintiff that her father purchased the same. In such a case it cannot be said that it was an ancestral property. According to D2, his father gave Item No.12 of the suit property to him. The plaintiff did not produce any evidence to prove that her father purchased Item No.12 of the suit schedule property by the income derived from the ancestral properties. Therefore, Item No.12 cannot be held to be an ancestral property and hence plaintiff is not entitled to seek partition of the same.

31.Ex.B18 to B46 and Ex.X1 also clearly show that the partition effected

U/Sec. Ex.B17 was acted upon and D2 and other co-shares were in possession and enjoyment of their respective shares allotted to them under Ex.B17. Therefore I hold that plaintiff is not entitled for partition of the suit schedule properties as prayed by her. Accordingly, the first issue is decided against the plaintiff.

32.ISSUE NO.2:

Though D2 pleaded that the plaintiff relinquished her right in the suit schedule property, in his cross-examination he has admitted that there is no documentary evidence to show that plaintiff relinquished her right to a share in the suit schedule properties. At the same time, D2 also did not produce any evidence to prove that the plaintiff has relinquished her right to a share in the suit schedule properties. Therefore, it cannot be said that the plaintiff relinquished her right in the suit schedule properties. Since, it is held that plaintiff is not entitled to seek partition of the suit schedule properties, the question whether she 19 relinquished her share in the suit schedule properties, is immaterial. Accordingly, the 2nd issue is answered.

33.ISSUE No.3:

Once it is held that plaintiff has no right to seek partition of the suit schedule properties and for allotment of 4/9th share to her, she is also not entitled to claim mean profits. Accordingly, this issue is also decided against the plaintiff.

34.In the result, the suit is dismissed; but, in the circumstances of the case without costs.

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

pronounced by me in the open court, this the 8th day of August, 2013).

JUDGE,

FAMILY COURT, ONGOLE,

FAC: V-ADDL. DISTRICT JUDGE,

(FTC), ONGOLE.

Appendix of Evidence

Witnesses examined

For plaintiff: For Defendant:

PW1: A.SubbayammaDW1: D. Bhaskara Rao PW2: M. Venkata RaoDW2: V.V.Rama Murthy

DOCUMENTS MARKED

For Plaintiff:

Ex.A1: CC of partition deed dt. 18-05-1994 Ex.A2: O/c of Regd. Notice dt. 07-01-2011 Ex.A3: Reply Regd. Notice

For Defendant:

Ex.B1: Photo-1 Ex.B2: Registration Copy of Mortgage deed dt. 06-01-1972 Ex.B3: Registration Copy of Mortgage deed dt. 12-09-1978 Ex.B4: Registration Copy of Mortgage deed dt. 15-10-1982 Ex.B5: Promissory note dt. 25-09-1979 Ex.B6: CC of Adangals for Fslies Ex.B7: CC of Adangals for Fslies Ex.B8: CC of Adangals for Fslies Ex.B9: CC of Adangals for Fslies, 1986, 1987 Ex.B10: CC of Adangals for Fslies, 1397, 1398, 1399 Ex.B11: CC of Adangals for Fslies, 1401, 1402 Ex.B12: Registration Copy of Mortgage deed dt. 30-09-1982 Ex.B13: Registration Copy of Mortgage deed dt. 15-09-1993 Ex.B14: Registration Copy of Mortgage deed dt. 27-10-1999 Ex.B15: Registration Copy of Mortgage deed dt. 22-09-2004 20

Ex.B16: Declaration dt. 31-12-1998 Ex.B17: Partition deed dt. 18-05-1994 Ex.B18: Regd. Sale deed dt. 19-10-1995 Ex.B19: Registration copy of settlement dt. 24-01-2008 Ex.B20: Building plan Ex.B21: Accounts statements of SBI Ex.B22: Reply notice dt. 04-02-2011 Ex.B23: Registration copy of Mortgage deed dt.16-09-1976 Ex.B24: Pattdar pass book Ex.B25: CC of document, dt. 25-06-1990 Ex.B26: Death certificate Ex.B27: House tax receipt dt. 02-06-2011 Ex.B28: Pattadar pass book Ex.B29: House Tax demand notice No.28 Ex.B30: House Tax demand notice No.24 Ex.B31: House Tax demand notice No.152 Ex.B32: House Tax receipt No.706 Ex.B33: 1-B Namuna Ex.B34: Adangal/pahani Ex.B35: True copy of pattadar passbook No.291 Ex.B36: True copy legal opinionEx.B37: True copy of commercial crops register. Ex.B38: Death certificate Ex.B39: True copy of land ceiling declaration Ex.B40: True copy of land ceiling declaration Ex.B41: Attested copy of proceedings of the revenue authorities Ex.B42: Notice of Award U/Sec. 3 H (2) of NH, Dt. 15-01-2013 Ex.B43: Paper notification in Eenadu, dt. 12-09-2001 Ex.B44: Paper notification in Eenadu, dt. 23-02-2002 Ex.B45: Paper notification in Andhra Jyothi dt. 14-12-2009 Ex.B46: Paper notification in Sakshi, dt. 21-11-2011

Ex.X1: Property list, dt. 15-05-1970

JUDGE,

FAMILY COURT, ONGOLE,

FAC: V-ADDL. DISTRICT JUDGE,

(FTC), ONGOLE.

21 22

IN THE COURT OF V- ADDITIONAL DISTRICT JUDGE (FAST TRACK

COURT), PRAKASAM AT ONGOLE

Present : Sri T.Surya Narayana, B.Com., B.G.L.,

Judge, Family Court –cum-

VIII-Additional District Judge, Ongole, FAC: V-Additional District Judge, (FTC), Ongole.

Friday, this the 8th day of August, 2013.

ORIGINAL SUIT NO.106/2011

Between:

Athota Subbayamma, W/o Masthanrao, Hindu, aged about 55 years, House-wife, R/o Flat No.503, Sai Sreenivasam Apartment, 2nd Line, Maruthinagar, Guntur. … Plaintiff.

And

1. Dhullipalla Ramanujamma, W/o. Late Venkata Ramamurthy @ Ramamurthy, Hindu, aged about 70 years, House-wife, R/o Ramakoor (V), J. Panguluru Mandal, Prakasam District.

2. Dhullipalla Bhaskararao, S/o Late Venkata Ramamurthy @ Ramamurthy, Hindu, aged 52 years, cultivation, R/o Muppavaram (V),

J. Panguluru Mandal, Prakasam District. ... Defendants.

The plaintiff Athota Subbayamma filed this suit for partition of Item Nos. 1 to 15 of the suit schedule property into 9 equal shares by metes and bounds and to allot 4 such shares to her and 4 such shares to D2 and one share to D1 and put her in possession of the same; and for grant of mesne profits in respect of her respective share from the date of suit till the date of delivery of possession; and for costs. Cause of Action:- Cause of action for the suit arose long ago when the father of the plaintiff, 2nd defendant and husband of 1st defendant acquired ancestral properties along with his brothers and had been in joint possession; during the life time of Ramamurthy he purchased Ac.3-66cents under a registered sale deed; subsequently executed a gift deed to an extent of Ac.1-35 cents in favour of D1 his wife; when he also performed marriages of his children; when he died subsequently without partition of ancestral properties; when the share of late Ramamurthy succeeded and inherited by plaintiff & defendants; when the plaintiff came to know that D2 fraudulently and with collusion of his paternal uncles got partition ancestral properties under partition deed dt. 18-05-1994; when she came to know that D2 acquired the properties of late Ramamurthy; subsequently when the plaintiff demanded D2 for amicable partition; but D2 postponing the same; on 7-1-2011 when the plaintiff got issued lawyer's notice, to which D2 gave reply notice with false allegations; and at Muppavaram village, J.Pangulur Mandal where the properties are situated and D2 also residing, within the jurisdiction of this court.

Court Fees:- For the purpose of court fees and jurisdiction, the relief of partition of the suit schedule properties items 1 to 15 are valued at Rs.32,49,000/-; 4/9th share of the plaintiff is Rs.14,44,000/- and 3/4th of the same is Rs.10,83,000/-; but as the properties are in joint possession of both the parties, a fixed court fee of Rs.200/- is paid U/sec.34(2) of A.C.F & S.V. Act, and deposited in S.B.I, Ongole vide challan

dt. 28-4-2011.

This suit is coming on 08-07-2013 before me for hearing, in the presence of Y. Sunil Kumar, Advocate for Plaintiff and of Sri M. Raghavarao, Advocate for 2nd Defendant, and 1st defendant remained ex-parte, upon perusal of material on record and having stood over for consideration till this day, this court doth order and decree:-

1) That the suit be and the same is hereby dismissed; and

2) That each party do bear their own costs.

Note:- Plaint schedule is hereto attached.

Given under my hand and the seal of the court, this the 8th day of August, 2013.

JUDGE,

FAMILY COURT, ONGOLE,

FAC: V-ADDL. DISTRICT JUDGE,

(FTC), ONGOLE.

TABLE OF COSTS

Plaintiff2nd Defendant

Vakalath(CM & FC not filed)52-00

Court fees-----

Stamp on petitions--10-00

Stamp on documents--50-00

Advocate fees-10,000-00

Total- 10,112-00

Judge, F.C

FAC::V-ADJ

OS/41/2011

Kanumuri Annapurnamma vs Medaramitala Ravikiran

02 Aug 2013

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

(Before the V-Addl. District Judge, (FTC) Ongole)

Present:- Sri T.Surya Narayana B.Com., B.G.L.,

Judge, Family Court – Cum - VIII-Additional District Judge

FAC:: V-Addl. District & Sessions Judge, (FTC) Ongole. Friday, this the 2nd day of August, 2013.

ORIGINAL SUIT No. 41/2011

Between:

1. Kanumuri Annapurnamma, W/o Gopala Krishna Raju, Aged 46 years, Hindu, Housewife, R/o D.No.2-137, Chinna Ogirala village, Vuyyuru Mandal, Krishna District.

......Plaintiff

And

1. Medaramitla Ravi Kiran S/o Krishnaiah, Aged 42 years, Hindu, Business, R/o Medaramitla, Korisipadu Mandalam, Prakasam District.

2. Medaramitla Karunakara Rao, S/o Sitharamaiah, Aged 44 years, Hindu, Employee, R/o Medarametla, Korisipadu Mandalam, Prakasam District

3. Medaramitla Srinivasarao, S/o Sitharamaiah, Aged about 40 years, Hindu, Employee, R/o Medarmetla, Korisapadu Mandalam, Prakasam District. …Defendants

This Suit coming on 24-07-2013 for final hearing before me in the presence of Sri.W.L.Prasad, Advocate for Plaintiff and of Sri.B.L.Narayana Rao, Advocate for Defendants 1 to 3; and having stood over for consideration till this day, this court delivered the following:-

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

1.The sole Plaintiff filed Suit seeking Permanent Injunction restraining the Defendants and their men, in any manner, interfering with her peaceful possession and enjoyment of an extent of Ac.4-50 cents of dry land in S.No.788/1 situated in Medarmetla village hamlet of Bodduvanipalem village of Korisapadu Mandal, Prakasam District.

(Hereinafter called as Item no.1 of suit property) and for a direction to

D1 to D3 to deliver the possession of an extent of Ac.2-50 cents of land in S.No.788/1 of Medarametla village hamlet of Bodduvanipalem of

Korisapadu Mandal (hereinafter called as item no.2 of suit schedule property) and also for a direction to the defendants to pay an amount of 2 Rs.8,00,000/- to the plaintiff towards damages caused in item No.2 of suit schedule property by doing illegal mining operations and for costs.

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

The plaintiff is the absolute owner of the plaint schedule properties. Originally one Mokkapati Lakshminarayana sarma

S/o.Visweswara Sarma was owner of the plaint schedule property. He inherited the same from his father Viseswara Sarma. The said

Viseswara Sarma has got Ac.13-00 of land in S.No.788 as one of the items in the capacity of 12th defendant as per the Final Decree passed in I.A.482/45 in O.S.No.64/29 and I.A.483/45 in O.S.22/1935 on the file of Subordinate Judge, Bapatla dt.26-4-1959.

3.After inheritance of the said Ac.13-00 of land the said Mokkapati

Lakshminarayana Sarma was in possession and enjoyment of the same.

Except Mokkapati Lakshminarayana Sarma no other person got right over the land of Ac.13-00 in S.No.788. Out of it, he sold Ac.6-00 of land in the year 1999 and retained the balance Ac.7-00 of land which is the suit schedule property. The plaintiff purchased the suit schedule property for a valuable consideration from the said M.Lakshminarayana

Sarma under a registered sale deed dt.03-05-2010 and she was put in possession of the suit schedule property. The Plaintiff filed Registration

Extract of the said sale deed as she pledged its original with the bank for loan purpose. Plaintiff also filed title deed and pattadar pass book issued in her favour.

4.The suit schedule property is a rocky soil and not fit for cultivation. It was only useful for mining purpose. The plaintiff was resident of Krishna District. Taking advantage of the fact that the plaintiff was residing at a far off place from the suit schedule property the defendants, who have nothing to do with the suit schedule 3 property, forcibly tress-passed into item no.2 of schedule property about 2 months prior to filing of the suit and excavated the land and extracted valuable material like granite stones and earth without consent and knowledge of the plaintiff. The plaintiff made representation to the Mining authorities and other officials complaining about the illegal activities of the defendants, but no action was taken against the defendants. The defendants have excavated valuable material from item. No.2 of the suit schedule property worth

Rs.8,00,000/- and caused damage to item no.2 of the schedule property. They have also proclaimed that they will do mining operations in item No.1 of the schedule property. The plaintiff estimated the damage caused in item no.2 of the schedule property at Rs.8,00,000/-.

The Plaintiff being lady and residing at a far off place, is not able to resist the un-lawful acts of the defendants and hence she filed the present suit.

5.On behalf of D1 written statement was filed and on behalf of D2 &

D3 adaption memo was filed adapting the written statement of D1. In his written statement D1 denied the material allegations and averments made in the plaint. According to D1, plaintiff or her vendor had no right, title and possession over the suit schedule property and they also do not know about the identity of suit schedule property. D1 alleged that the plan referred in the plaint schedule and boundaries given in the sale deed of the plaintiff are not correct. He also alleged that the final decree passed in O.S.64/1929 and O.S.22/1935 in between father of plaintiff's vendor and their family members was a collusive one. They have obtained the said collusive decree by including properties of 3rd parties. Except the alleged final decree there is no other document to 4 show that the properties referred in the plaint schedule belong to the family of the vendor of the plaintiff.

6.D1 contended that by taking advantage of the said collusive final decree the vendor of the plaintiff managed the revenue officials and obtained pattadar passbook behind the back of D1. According to D1 he did not obtain pattadar passbook and title deed because the land is not agricultural land and no pattadar pass book and title deed will be issued by the revenue authorities for non agricultural land. The very fact that the vendor of the plaintiff obtained pattadar pass book and title deed for non agricultural land itself is sufficient to suggest that he had managed the revenue authorities to gain wrongfully.

7.D1 contented that an extent of Ac.7-00 situated in S.No.788 belongs to him and it is his ancestral property. The R.S.R discloses that his forefathers are the absolute owners of the property situated in

S.No.788 of Bodduvanipalem village. The R.S.R was prepared in or about 1905. According to D1 one Pisupati Venkata Ramanaiah filed

O.S.143/1944 on the file of District Munsif Court, Ongole and later it

was transferred to District Munsif Court, Bapatla and was renumbered as O.S.233/1945 against the family members of D1 in respect of the property situated in S.No.788 of Bodduvanipalem village. O.S233/1945 was decreed. Later the family members of D1 preferred appeal before

Subordinate Judge, Bapatla in A.S.17/1947. The said appeal was allowed and the suit was remanded to lower court for fresh disposal with the following observations:

“It is a fundamental rule of law of pleading that a party, who comes to court to establish this title a certain property must ever in his plaint clearly and in unambiguous terms, how became entitled to it and must also trace the source of his title. The plaintiff herein has 5 not done so. The plaint is baled and un-instructive whereas the documents filed on behalf of parties reveal that these properties have been the subject matter of litigation since over a century and half. The learned

District Munsif will call upon the plaintiff to file a rejoinder setting fourth how his alleged predecessor in title Chinna

Seshaiah became entitled to the suit properties. The defendant will file their additional written statement and the meet the case of the plaintiff and after framing fresh issues and the parties are at liberty to adduce evidence if necessary.”

8.However, the plaintiff in the said suit did not choose to contest the case in spite of several adjournments. Hence, O.S.233/1945 was dismissed for default on 06-10-1948. D1 contended that the Judgment and decree in O.S.233/1945 operates as resjudicata for this suit. The plaintiff in O.S.233/1945 is the 2nd defendant in O.S.64/1929 and

O.S.22/1935.

9.O.S.233/1945 was filed claiming half share out of Ac.13-00 in

S.No.788, whereas in the present suit the plaintiff is claiming that his vendor got right over the entire extent of Ac.13-00 of land and hence the same cannot be accepted. The alleged sale of Ac.6-00 of land in the year 1999 is also a collusive sale. D1 further alleged that the sale deeds and pattadar passbook produced by the plaintiff are created documents. D1 claimed that except himself and other defendants no others have got any right, title, interest and possession over the suit schedule property. D1 also stated that his forefathers have excavated gravel from the disputed property since decades and the act of excavation was not a recent one as alleged by the plaintiff in

O.S.233/1945. The grievance of the plaintiff in the said suit was that

the forefathers of the defendants were excavating hill rocks and gravel from the disputed property since 1900 and as such the allegation in the 6 present suit that the defendants were excavating gravel and minerals from the disputed property since a few days before filing the present suit, is a false one. D1 also contended that the plaintiff is not entitled for recovery of Rs.8,00,000/- as damages for removing gravel and minerals from the disputed property. In fact, there is no scientific data furnished by the plaintiff for claiming said damages. D1 further contented that the plaintiff does not know the identity of the suit schedule property and she was a spoon in the hands her vendor and the allegation that the original sale deed was deposited before the bank is not correct. D1 further contended that the plaintiff has no primafacie case or balance of convenience in her favour. Whereas, primafacie case and balance of convenience are in their favour. He contented that the suit for bare injunction is not maintainable without the relief of declaration. It is also the contention of D1 that the court fee paid is not correct. D1 alleged that the plaintiff suppressed the material facts and came to the court with unclean hands and hence, she is not entitled for the equitable relief of injunction. It is also his contention that the relief of injunction cannot be granted against true owner. D1 reserved his right to file additional written statement and prayed to dismiss the suit with exemplary costs.

10.Basing on the above pleadings, the following issues were framed for trial:-

1) Whether the plaintiff is entitled for permanent injunction with regard to item No.1 as prayed for?

2) Whether the plaintiff is entitled for delivery of possession of item No.2 of the suit schedule property?

3) Whether the plaintiff is entitled for damages as prayed for?

4) To what relief?

11.In support of her case the plaintiff examined her husband as P.W1 and four others as P.Ws 2 to 5 and got marked Exs.A1 to A12. On behalf of Defendants, D1 was examined as D.W1 and one K. Srinivasa Rao was 7 examined as D.W2 and Exs. B1 to B11 were marked. During the course of arguments the learned advocate for the plaintiff was absent and no arguments were advanced on behalf of the plaintiff. Hence, right of the plaintiff to submit arguments was forfeited.

Heard the learned Advocate for the defendants. The three issues are interlinked to each other and therefore they are being decided together.

12. Issues: 1 to 3:-

The case of the plaintiff is that she purchased items 1 & 2 of the suit schedule properties from her vendor M.Lakshminarayana sarma under a registered sale deed dt.3-5-2010 and pledged original sale deed with bank for loan. She alleged that taking advantage of her residence in Krishna District the defendants have forcibly trespassed into item No.2 of the schedule property about 2 months prior to the date of filing of the suit and excavated land by extracting valuable material like granite stones and earth worth Rs.8,00,000/- without her consent and knowledge and thereby caused damages in item No.2 of the suit schedule property and inspite of her complaint made to the concerned authorities, no action was taken against the defendants. The defendants were also proclaiming to do excavation work in item no.1 of the suit schedule property. As such she was constrained to file the present suit. In the plaint schedule, the plaintiff has given the schedule of items 1 & 2 as under:

“Item No.1:-

Prakasam District Registration -Addanki Sub Registration – Korisapadu

Mandalam village H/o Bodduvanipalem – Survey No.788/1 – Extent -Ac.4-50 Dry land bounded by:

East: land of Karnati people

South: Item No.2 8 West: Land of Karnati Venkateswarlu

North: Lands of Chava Ravi & Others” “Item No.II

Prakasam District Registration -Addanki Sub Registration –

Korisapadu Mandalam- Medaremetla village H/o Bodduvanipalem –

Survey No. 788/1 Extent: Ac.2-50 cents bounded by:

East: Land of Karnati people

South: Land of Thathiparthy Raghavareddy and others

West: Karnati Venkateswarlu

North: Item No.1”

13.The case of the defendants is that they are absolute owners of the suit schedule property and plaintiff and her vendor have no right, title and interest over the suit schedule property and they also do not know the identify the suit schedule property. According to the defendants as per R.S.R their forefathers are the absolute owners of the property including suit schedule property situated in S.No.788 of

Bodduvanipalem village.

14.The plaintiff claimed that the father of her vendor by name

Viseswara Sarma got Ac.13-00 of land including suit schedule land in

S.No.788 as 12th defendant as per the final decree passed in I.A.482/45 in O.S.64/29 and I.A.483/45 in O.S.22/1935 on the file of Subordinate

Judge, Bapatla dt. 26-04-1959 and her vendor inherited the said 13-00

Acres of land from his father and he sold Ac.6-00 of land in the year 1999. and sold the remaining Ac.7-00 of land i.e., suit schedule land to her as per the registered sale deed dt.03-05-2010. On the other hand the defendants alleged that the said final decree obtained in O.S.64/29 and O.S.22/1935 is a collusive decree between father of the vendor of the plaintiff and their family members and taking advantage of the said collusive decree the vendor of the plaintiff managed the revenue officials and obtained pattadar pass book and title deed though no such 9 documents will be issued for non agricultural land. According to the defendants the suit schedule land is farming part of rock and hill area and it is a non-agricultural land and no pattadar pass book and title deed will be issued for the same by the revenue authorities.

15.It is also the case of the defendant that one Pisupati Venkata

Ramanaiah filed O.S.No.143/1944 on the file of District Munsif Court,

Ongole and later it was transferred to the District Munsif Court, Bapatla and was renumbered as O.S.235/1945 and the said suit was decreed against the family members of the defendants in respect of property situated in S.No.788 of Bodduvanipalem village. Later, the family members of the defendants preferred an appeal A.S.17/47 before

Subordinate Judge, Bapatla and the same was allowed and the matter was remanded to lower court with a direction to frame fresh issues and do trial by giving liberty to the parties to adduce evidence. But after the suit was remanded to the trial court, the plaintiff therein did not choose to contest the case in spite of several adjournments and hence

O.S.233/45 was dismissed on 06-10-1948 and the plaintiff in the said

suit was D2 in O.S.64/1929 and O.S.22/35 and hence Judgment and decree in O.S.233/1945 operates as resjudicata for the present suit.

16.During the course of arguments, the learned Advocate for the defendants contended that neither the plaintiff nor her vendor are having any knowledge about the identity of suit schedule property and the plan and the plaint schedule property referred in the plaint are not correct and on that ground itself this suit is liable to be dismissed. It is also contended that during pendency of the suit a court commissioner was appointed to inspect the physical features of the suit schedule property and after visiting the suit schedule property the commissioner could not locate the same as the plaintiff and her vendor failed to 10 identify the same and hence commissioner returned the warrant to the court with a report that inspite of his best efforts he was not able to identify the suit schedule property. In view of the said report of the

Advocate commissioner the learned advocate for the defendants contended that in the absence of any evidence regarding identity of the suit schedule property, the plaintiff is not entitled for grant of any of the reliefs sought for by her.

17.In order to decide whether the plaintiff was able to identify the suit schedule property, it is necessary to go into the oral and documentary evidence produced by her. The plaintiff examined her husband as P.W1 and marked Exs.A1 to A12 through him. In his chief affidavit P.W1 has reiterated the averments made in the plaint and marked the following documents as Exs.A1 to A12. In his cross examination P.W1 stated that his wife, who is plaintiff, is healthy and she can give evidence. He, however, asserted that his wife will not give evidence. It was elicited from P.W1 that appeal was preferred against the Judgment and Decree passed in O.S.143/1944 (O.S.233/1945) and in the appeal the matter was remanded to the lower court. P.W1 stated that he had no knowledge about the result of the said suit after it was remanded to the lower court. He however admitted that after the suit was remanded to the lower court the same was dismissed for default.

He also admitted that the said suit was filed for partition of Ac.13-00 of land in S.No.788 and they got sale deed registered without any registration regarding the minerals. Though he denied that the land which is part of the hill is not fit for cultivation, he stated that they have not cultivated the land. He also denied that S.No.788 is a hill. The said denial made by P.W1 is quite contrary to the plea taken in para (c) of the plaint. It was pleaded in para “c” of the plaint that the suit schedule 11 property is a rocky soil and was not fit for cultivation and it is only useful for mining purpose. Therefore, P.W1 deliberately chose to make false denials. Regarding the nature of the suit schedule property P.W1 admitted that earlier their vendor sold Ac.6-00 of land and in the RSR seen by him the names of the grandfathers of the defendants were mentioned. Though P.W1 claimed that they have filed 1-B Account with report, no such documents were, in-fact, filed by the plaintiff. He denied the suggestion that the name of their vendor was inserted in 1-A

Account and that the 1-A account filed by them was created for the purpose of the suit.

18.P.W1 produced true copy of 1-A account issued by the Tahsildar,

Korisapadu village as Ex.A10. The Plaintiff has examined V.R.O of the office of the Tahsildar, Korisapadu by name P.V.Koteswara Rao as P.W4 and through him got deposed that the name of her vendor

M.Lakshminarayana sarma was recorded in Ex.A10 in respect of

S.No.788/01. At the same time P.W4 also stated that the name of vendor of the plaintiff was not recorded in 1-B Account.

19.P.W1 got marked pattadar pass book and title deed under patta

No. 2101 in the name of M.Lakshminarayana sarma as Exs.A3 & A4.

However in his cross examination P.W4 has categorically stated that katha no.2101 mentioned in 1-B account belongs to Regula Kotamma

W/o Pothuraju. In this connection it is also relevant to refer to the evidence of D1 as D.W1. He had marked attested copy of 1-B extract standing in the name of Regula Kotamma and the certificate of extract standing in the name of Regula kotamma issued by the Tahsildar,

Korisapadu Mandal as Exs.B10 & B11 respectively. In his cross examination D1 admitted that the suit schedule property belongs to him. However no other significant points were elicited from the cross 12 examination of D1 with regard to the entries made in Ex.B10 & B11. In this regard, the cross examination of P.W4 shows that Katha no.2101 mentioned in 1-B extract belongs Regula Kotamma W/o Pothuraju and the names of plaintiff and her vendor were not mentioned in 1-B account. P.W4 admitted that the name of M.Lakshminarayana sarma was inserted in between two lines in Ex.A10 and Ex.A10 does not contain any recitals about the some of title or any other relevant proceedings on the basis of which the name of M.Lakshminarayana sarma was inserted in Ex.A10. P.W4 further admitted that insertion of said name in Ex.A10 was not attested by the concerned revenue officer.

According to P.W4, in the year 1989, 1-A account came into force after canceling 10(1) account. He also stated that the insertion in Ex.A10 might have been in the year 1994. It was elicited from P.W4 that if any sub division is made the same has to be carried out in FMB, No.3, 1-A, 1-B accounts. P.W4 categorically admitted the suggestion that there was no sub division to extent of Ac.13-00 of land out of total extent of

Ac.217.86 cents in S.No.788/1. It is also his admission that S.No.788 is a hill and it is not agricultural land and pattadar pass book will not given to the non agricultural land. He also stated that the extent of

S.No.788/2 is Acres 4-50 cents.

20.From Ex.A10 it is seen that the name of M.Lakshminarayana

Sarma was inserted in between two lines in the columns of “pattadar” and “owner.” The said insertion of the name of M.Lakshmi Narayana

Sarma in Ex.A10 i.e., 1-A account copy, was not attested or certified by the concerned revenue officials. The said fact is admitted by P.W4 in his cross examination. Therefore, the denial of P.W1 that they got created Ex.A10 for the purpose of the suit, is also held to be a false denial. Admittedly 1-B account i.e., to abstract and certificate were 13 filed and marked as Ex.B10 & B11 do not contain the name of vendor of plaintiff. As per the evidence of P.W4 katha No.2101 mentioned in 1-B account belongs to Regula Kotamma W/o Pothuraju that the name of plaintiff and her vendor were not mentioned in 1-B account. P.W1 produced title deed, and pattadar pass book showing patta No.2101 in the name of M.Lakshmi Narayana Sarma as Exs.A3 & A4. In his cross examination P.W1 denied that the pattadar passbook and title deed filed by him were created. However on the basis of evidence of P.W4, it can safely be concluded that Katha No.2101 mentioned in Exs.B10 &

B11 is in the name of Regula Kotamma W/o Pothuraju and the names of plaintiff or her vendor were not recorded in 1-B Account and in such a case the entries shown in Exs.A3 & A4 showing the name of M.Lakshmi

Narayana Sarma in respect of patta No.2101 are nothing but manipulated entries got recorded for the purpose of this case. Hence the said entries in Exs.A3 & A4 cannot be relied upon.

21.In his cross examination P.W1 denied the suggestion that they could not to show the suit schedule property to the advocate commissioner when he visited the same. At the same time, P.W1 claimed that he could say boundaries of the suit schedule property.

Again he stated that he cannot say about the location of the suit schedule property. P.W1 admitted that the grandfathers and fore grandfathers of the defendants were not parties in O.S64/2009 and

O.S.22/35. He denied that Ex.A1 was created to harass the defendants.

and that they were never in possession of the suit schedule property.

22.The plaintiff examined her vendor M.Lakshmi Narayana Sarma as

P.W2. In his chief affidavit he stated that the suit schedule property of

Ac.13-00 in S.No.788/1 originally belonged to his father by way of partition. Pisupati Venkata Rangaiah, his sons and grandson Pisupati 14 Venkata Ravanaiah were the original owners of the suit schedule property and other properties and they have effected partition on 15- 12-1921, however, one Pisupati Venkata Subbamma who is the daughter-in-law of Pisupati Venkata Rangaiah filed partition suits in

O.S.64/29 and O.S.22/1935 on the file of Subordinate Judge, Bapatla

and the same were decreed on 26-04-1959 and final decrees in both the suits were passed in I.A.482/1945 and I.A.483/1945 and F-Schedule

Properties were allotted to D12, by name, Makkapati Visweswara

Sarma. As per partition the suit schedule property and other properties were devolved on Makkapati Visweswara sarma. The extent of Ac.13-00 is situated in Medarametla village. The father of P.W2 died in the year 1974 and after his death P.W2 entered into the said extent of Ac.13-00 of land, became absolute owner and possessed the same and obtained pattadar passbook and title deed from the Tahsildar, Korisipadu in the year 1998. He had applied Sub division to the M.R.O, Korisipadu and the same was effected and S.No.788/1 was allotted to the said extent of

Ac.13-00 of land with specific boundaries. Later he sold Ac.6-00 of land to Chava Ravi Babu in the year 1999 and the said Chava Ravi Babu was doing business of crusher of stones as it is a hill area. He sold the remaining extent of Ac.7-00 to the plaintiff in the year 2010 and since then the plaintiff was in peaceful possession and enjoyment of the same as absolute owner. But, in his cross examination P.W2 admitted that they have filed a suit against grandfather of D1 even before executing the sale deed in favour of the plaintiff. He also admitted that father of D1 was not a party to the earlier suits and the boundaries were not mentioned in the partition deed. He denied that the earlier suits were collusive suits. He admitted that grandfather of D1 preferred the appeal against the decree and the matter was remanded to lower 15 court. Later, the suit was dismissed for default. He denied that Pisupati

Venkata Ramanaiah claimed half share in Ac.13-00 of land in S.No.788 and that no sub division was made. He admitted that the suit schedule property is a hill area and an extent of Ac.200-00 is situated in between

Medarametla and Bodduvanipalem villages. He denied that S.No.788/1 is situated on the northern side of Bodduvanipalem village. According to him, the suit schedule property is in two bits at different places and he cannot say the boundaries of the suit schedule property. He admitted that he gave a statement to the M.R.O on 1-6-2012 and the said statement is true and correct. The same was confronted to P.W2 and was marked as Ex.B1. P.W2 denied that in the said statement given to M.R.O he stated that he was not in a position to identify the property.

He denied that Katha No.2101 mentioned in the pass book is created.

He, however, stated that he does not know whether the said katha number was given to Regula Kotamma W/o Pothuraju. P.W2 denied that pattadar pass book and title deed issued in his name were created and that he got mentioned his name in 1-A account by managing the revenue authorities and that he had no right, title and possession over the suit schedule property and that, he does not know the location of the suit property. He claimed that on his application his name was entered in 1-A account in the year 1997. It was already noted above that in Ex.A10 i.e., copy of 1-A account. The insertion of the name of

P.W2 in between two lines was neither attested nor certified by the concerned revenue authorities. P.W2 did not produce any evidence to show that he made any such application and in his application his name was entered in 1-A account in the year 1997.

23.P.W3 was examined to show that P.W2 sold Ac.6-00 of land out of

Ac.13-00 of land in S.No.788/1 in the year 1999 to him and the 16 remaining extent of Ac.7-00 was sold by P.W2 to the plaintiff and she was in possession and enjoyment of the same. But in his cross examination P.W3 admitted that the suit schedule property is a hill.

According to him, he purchased the property on the southern side of the hill. He denied that S.No.788/1 is situated on northern side of the hill. He stated that he has no knowledge about the suit filed against the grandfather of D1. He claimed that he purchased the said extent of

Ac.6-00 after verifying pass book and 1-A account and making enquirers with the revenue officials.

24.He admitted that he belongs to Telugu Desam party and D1 belongs to Congress party and that he signed on registered sale deed, and that there were disputes between D1 and his brother-in-law. It was elicited from him that they used to look after the affairs of the plaintiff.

He admitted that he filed Writ Petition before the Hon'ble High Court alleging that D1 being owner of neighbouring land was interfering with his possession. When the copy of the said writ petition was shown to

P.W3, he admitted the same and the same was marked as Ex.B2. He also stated that he gave statement before M.R.O and the same is true.

The said statement given by him to M.R.O was confrontedto him and he admitted it and the same was marked as Ex.B3. But, in fact, Ex.B3 is the copy of settlement of D1.

25.The evidence of P.W4 was already referred to above. The plaintiff examined P.W5 to show that she purchased the suit land from

M.Lakshminarayana Sarma in the year 2009 for a valuable consideration under a registered sale deed and that she was put in possession and enjoyment of the same. In his cross examination P.W4 stated that he does not know whether Lakshmi Naraya Sarma died or alive. He admitted that disputed land is a hill and it is situated to the 17 southern side of the hill. He stated that he does not know the plaintiff and knows D1. He denied that the suit schedule property is in possession of D1, and that, he does not know parties to the suit.

According to him at the request of P.W1, he came to the court to give evidence.

26.In his affidavit in chief D1 as D.W1 has reiterated the averments of the written statement and marked the following documents:

Ex.B1: Xerox copy of statement given to the M.R.O dt. 01-06-12

Ex.B2: Xerox copy of writ petition copy.

Ex.B3: Xerox copy of statement to the M.R.O.

Ex.B4: C.C of Judgment in A.S.17/1947.

Ex.B5: C.C of Decree in O.S.233/1945 dt 6-10-1948.

Ex.B6: C.C of decree in O.S.233/1945 dt.10-12-1945.

Ex.B7: Family tree of R1.

Ex.B8: C.C of R.S.R dt. 11-04-2011.

Ex.B9: C.C of 10(1) Account.

Ex.B10: Attested copy of 1-B abstract in the name of R.Kotamma.

Ex.B11: Certificate of 1-B abstract in the name of R.Kotamma.

27.Ex.B1 is the xerox copy of the statement given by P.W2 to the

M.R.O, Korisipadu Mandal on 1-6-2012 and in the said statement P.W2 has categorically stated that he was not in a position to identify Ac.6-00 of land sold by him to P.W3 and the Ac.7-00 of land sold by him to the plaintiff. However, in his cross examination P.W2 denied that in the said statement he stated that he was not in a position to identify the said two properties. It means that P.W2 is not in a position to identify or locate the suit schedule property in S.No.788/1. It was already noted above that in his cross examination P.W1 has categorically stated that he cannot say the location and identification of the suit schedule property.

28.Ex.B2 is the xerox copy of writ petition No.1804/12. It was filed by P.W3 before Hon'ble High Court of A.P and in the said writ petition

P.W3 alleged that D1 being owner of the neighbouring land was interfering with his possession in his land of Ac.6-00 in S.No.788/1 purchased from P.W2 and therefore prayed to give a direction to the

Tahsildar and the Mandal Surveryor of Korisipadu Mandal to conduct survey and fix the boundaries to his land of Ac.6-00 in S.No.788/1 situated in Medarametla village.

29.Ex.B3 is the Xerox copy of the statement given by D1 to the

M.R.O. But during the cross examination of P.W3 the said statement i.e., Ex.B3 was confronted to him and got marked the same as his statement. In fact Ex.B3 is the xerox copy of the statement given by

D1 to the M.R.O. Though in Ex.B2, P.W3 claimed that on his application for grant of lease and for road metal to an extent of two hectares the

Assistant Director of Mines and Geology, Ongole. the Tahsildar,

Korispadu Mandal inspected his land along with the Mandal Surveyor and sent a report to the Assistant Director of Mines & Geology, Ongole recommend to grant lease for quarrying road metal vide letter dated 28-02-2007 and after completion of the procedure and formality, the

Deputy Director of Mines and Geology, Guntur granted lease vide proceedings No.9371/Q/AD(ONG)/2006 dt.1-11-2007 to an extent of two

Hectares for quarrying road metal and pursuant to the grant of lease he had entered into an agreement dt.20-06-2008 and started quarrying road metal as per the conditions. He did not produce any such evidence in this case to show that his land of Ac.6-00 in S.No.788/1 of

Bodduvanipalem village was located and identified with specific boundaries. At the same time P.W3 did not state that the suit schedule 19 property of Ac.7-00 in S.No.788/1 sold by P.W2 to P.W1 under Ex.A1 was located and identified with specific boundaries.

30.Ex.B4 is the certified copy of Judgment in A.S.17/1947 and

Exs.B5 & B6 are the certified copies of decree dt.06-10-1948 and

Judgment dt.10-12-1945 in O.S.233/1945 respectively. There is no dispute about the said litigation between Pisupati Venkata Ramanaiah and the forefathers of D1 and other defendants.

Ex.B7 is the family Pedigree (Tree) of the defendants.

Ex.B8 is the certified copy of R.S.R. dt. 11-04-2011 showing the names of the forefathers of the defendants as absolute owners of the property situated in S.No.788 of Bodduvanipalem village.

31.Ex.B9 is the certified copy of 10(1) account showing the name of

Medarametla Hanumayya who is the grandfather of D1 as one of the owners of the land to an extent of Ac.222-36 cents in S.No.788 of

Bodduvanipalem village. With regard to Exs.B10 & B11 it was already noted above that Katha No.2101 was given to Regula Kotamma W/o

Pothuraju but not to P.W2 as shown in Exs.A3 & A4.

32.During the cross examination of D1, he admitted that P.W3 was doing mining business in his land of Ac.6-00. According to him, his grandfathers Medarmetla Hanumayya, Medarametla Kanakayya,

Medarametla Janakiramayya and Medarametla Subbaramayya were having Ac.26-00 of land in S.No.788/1 and the same is located in two places. He also stated that he is the grandson of Medarametla

Hanumaayya. According to him, but of the said Ac.26-00, Ac.12-00 of land is situated on the southern side and the remaining land is situated on the northern side. He denied that his grandfathers were having only

Ac.14-00 of land and it was situated on the western side. He also denied that in the absence of plaintiff, himself and other defendants 20 occupied the land of plaintiff and earned about Rs.50,00,000/- by doing illegal mining. He, however, denied that he had no right over the land situated in S.No.788/1, and that, in the absence of plaintiff, D2 & D3 entered into item No.2 of the schedule property and took away minerals worth Rs.8,00,000/-.

33.D.W2 is the 3rd party. In his chief-affidavit he stated that he got

Ac.1-50 cents of land on the southern side of land of D1 and to his knowledge, since times immemorial the family members of D1 were in possession and enjoyment of Ac.14-00 of land in hill area in S.No.788/1 of Medarametla village and the same was known to one and all. He also stated that property described in the sale deed i.e., Ex.A1 and in the plaint schedule and plan cannot be identified on the ground. In his cross examination, D.W2 stated that Karnati people got land on eastern side and Medarmetla people got land on southern side and he got his land in S.No.132/4. He also stated that he knows the suit land. No other significant points were elicited from his cross examination.

34.The plaintiff produced Registration extract of the registered sale deed dt.03-05-2010 as Ex.A1 with the following boundaries for an extent of Ac.7-00 in S.No.788/1 of Bodduvanipalem hamlet of

Medarametla village.

“East: Land of Karnati people South: Land of Thatiparthi Raghavareddy and others West: Land of Karnati Venkateswarlu North: Land of Chava Ravi (P.W3) and others”

35.In the plaint schedule Item No.1 that is Ac.4-50 cents dry land in

S.No.788/01 of Medarametla village hamlet of Bodduvanipalem was shown with the following boundaries.

“East : Land of Karnati people South: Item No.2 West : Land of Karnati Venkateswarlu North: Land of Chavi Ravi and others” 21

The boundaries of item No.2 consisting of Ac.2-50 cents in

S.No.788/01 of Medarmetla village hamlet of Bodduvanipalem village were shown as under:

“East : Land of Karnati people South: Lands of Thatiparthy Raghavareddy and others West : Land of Karnati people North : Item No.1.”

Along with the plaint the plan was also enclosed showing item-1 as plot No.A and Item-2 as Plot No.A1.

36.Ex.A2 is the certified copy of final decree dt. 26-04-1959 passed in I.A.No.482/1945 in O.S.64/29 and I.A.483/1945 in O.S.22/1935 on the file of Addl. Sub Judge, Bapatla. From Ex.A2, no material can be gathered to ascertain the level with specific boundaries that was allotted to the share of D12 therein, who is the father of P.W2. No doubt, it shows that F-Schedule of the said suit was allotted to the share of father of P.W2 herein. However, the plaintiff did not produce the schedule of properties attached to Ex.A2. In the absence of any such documents, it is difficult to hold that the father of P.W2 was allotted Ac.13-00 of land in S.No.788/1 of Bodduvanipalem village towards his share in the said final decree. The burden is on the plaintiff to produce the evidence relating to the recitals of the property allotted to father of P.W2 in the said final decree. But she did not do so.

37.Though the plaintiff has produced certified copies of consolidated lists of properties available for partition and the certified copies of schedules in the said final decree as Ex.A7 & A8 respectively and the certified copies of said final decree dt.26-04-1959 as Ex.A9, the same do not disclose the specific boundaries of the land allotted to the share of the father of P.W2 while passing the said final decree.

38.As far as Ex.A3 & A4 are concerned it was already held that patta

No.2101 mentioned therein belongs to one Regula Kotamma as per

Exs.B10 & B11 which was spoken to by P.W4. Therefore, Exs.A3 & A4 are not helpful to the plaintiff to prove her case.

39.Ex.A5 is the copy of letter given by the plaintiff dt. 16-12-2010 to the Assistant Mining Director, Ongole dt.16-12-2010 complaining against the defendants about the alleged illegal mining in Ac.7-00 of land in S.No.788/01 of Bodduvanipalem village.

40.Ex.A6 is the copy of letter dt.18-12-2010 issued by the plaintiff to the Tahsildar of Korisipadu Mandal complaining about the alleged illegal mining done by the defendants in AC.7-00 of land in S.No.788 of

Bodduvanipalem village. Exs.A7 to A9 were already referred to above and it was held that they are also not helpful to the plaintiff to identify the suit schedule land as per the boundaries mentioned in Ex.A1 and the plaint schedule and also on ground with regard to Ex.A10 true copy of 1-A Adangal it was already noted above that name of P.W2 was entered in between two lines in Ex.A10 without attestation or certification by the concerned revenue officials. Therefore, no reliance can be placed on the said entry relating to P.W2 in Ex.A10

41.Ex.A11 is the certified copy of schedule and Ex.A12 is certified copy of Judgment dt.10-12-1945 in O.S.233/1945. As per Ex.A11 item-1 is the Ac.6-00 of land and item No.2 is the Ac.7-00 of land in S.No.788 and certain boundaries were given to the said two items in Ex.A11. But the oral evidence of P.ws 1 to 5 and also the report of the advocate commissioner filed in this case clearly indicate that the suit schedule property with the boundaries shown in Ex.A1 plaint schedule and in

Ex.A11, could not be identified on ground in S.No.788/1 of

Bodduvanipalem village. The plaintiff failed to produce any reliable 23 evidence to show the specific and exact location and identity of the suit schedule property on ground in S.No.788/1 of Bodduvanipalem village.

The oral and documentary evidence of plaintiff is not helpful to her locate and identify the suit schedule property on ground. In such a case the plaintiff is not entitled for the equitable relief of permanent injunction in respect of item No.1 of the suit schedule property and for delivery of possession of item No.2 of the suit schedule property and also for damages of Rs.8,00,000/- as claimed by her. Accordingly the three issues are decided against the plaintiff.

42. Issue No.4:-

In the result, the suit is dismissed with costs.

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

pronounced by me in Open Court, this the 2nd day of August., 2013.

Judge, Family Court

FAC:: V ADDITIONAL DISTRICT JUDGE,

(FAST TRACK COURT) ONGOLE

Appendix of Evidence

Witness Examined

For Plaintiff: For Defendants:

PW.1: Gopala Krishnam RajuDW.1: M.Ravi Kiran P.W2: M.L.Narayana SarmaDW.2: K.Srinivasa Rao P.W3: Ch.Ravi Babu P.W4: P.V.Koteswara Rao P.W5: N.Audi Narayana

DOCUMENTS MARKED

FOR PLAITNIFF:

Ex.A1:Registration extract of the Regd sale deed dt.03-05-2010 Ex.A2:C.C of O.S.64/1929 in I.A.482/1945 and I.A.483/1945 in

O.S.22/1935 on the file of Subordinate Judge Court, Bapatla

Ex.A3:The Original Pattadar Pass book under patta No. 2101 Ex.A4:The Original pattadar pass book/Title deed under patta No. 2101. Ex.A5: The letter given to Assistant Director, Mines Department dt. 16-12-2010 by Plaintiff Ex.A6: The letter to Tahsildar of Korisipadu Mandal, Prakasam District dt. 18-12-2010 by plaintiff Ex.A7: C.C of consolidated list of properties available for partition 24 Ex.A8:C.C of schedules in I.A.482/45 in O.S.64/29 and I.A.483/45 in O.S.22/1935 Ex.A9:C.C of final Decree Order dt. 26-04-1959 Ex.A10:True copy of A1 Adangal copy Ex.A11 :C.C of schedules in suit properties in O.S.233/1945 Ex.A12 :C.C of Judgment copy in O.S 233/1945 dt. 10-12-1945

FOR DEFENDANTS:-

Ex.B1: Xerox copy of statements to the M.R.O dt. 01-06-12 Ex.B2: Xerox copy of writ petition copy. Ex.B3:Xerox copy of statement to the M.R.O Ex.B4: C.C of Judgment in A.S.17/1947 Ex.B5: C.C of Decree in O.S.233/1945 dt 6-10-1948 Ex.B6: C.C. of decree in O.S.233/1945 dt.10-12-1945 Ex.B7: Family tree of the R1 Ex.B8: C.C of R.S.R dt. 11-04-2011 Ex.B9: C.C of 10(1) Account Ex.B10: Attested copy of 1-B abstract in the name of R.Kotamma Ex.B11: Certificate of 1-B abstract in the name of R.Kotamma

Judge, F.C

FAC::V-ADJ 25

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

(Before the V-Addl. District Judge, (FTC) Ongole)

Present:- Sri T.Surya Narayana B.Com., B.G.L.,

Judge, Family Court – Cum - VIII-Additional District Judge

FAC:: V-Addl. District & Sessions Judge, (FTC) Ongole. Friday, this the 2nd day of August, 2013.

ORIGINAL SUIT No. 41/2011

Between:

1. Kanumuri Annapurnamma, W/o Gopala Krishna Raju, Aged 46 years, Hindu, Housewife, R/o D.No.2-137, Chinna Ogirala village, Vuyyuru Mandal, Krishna District.

......Plaintiff

And

1. Medaramitla Ravi Kiran S/o Krishnaiah, Aged 42 years, Hindu, Business, R/o Medaramitla, Korisipadu Mandalam, Prakasam District.

2. Medaramitla Karunakara Rao, S/o Sitharamaiah, Aged 44 years, Hindu, Employee, R/o Medarametla, Korisipadu Mandalam, Prakasam District

3. Medaramitla Srinivasarao, S/o Sitharamaiah, Aged about 40 years, Hindu, Employee, R/o Medarmetla, Korisapadu Mandalam, Prakasam District. …Defendants

Suit is for permanent injunction restraining the Defendants and their men, in any manner, interfering with plaintiff peaceful possession and enjoyment of item No.1 of plaint schedule property b) directing defendants to deliver possession of item No.2 of plaint schedule property c) directing the defendant to pay Rs.8,00,000/- to plaintiff towards damages caused in item No.2 of plaint schedule property by doing illegal mining operation and for costs of the suit Date of presentation: 22-2-2011 Date of filing: 22-2-2011

Cause of Action:- Cause action for the suit arose when the plaintiff purchased the suit schedule property from M.Lakshminarayana Sarma for a valuable consideration on 3-5-2010 and she was put in possession of the same; about 2 months back when the defendants illegally trespassed into item No.2 and excavated material worth Rs.8,00,000/-; when the plaintiff made representation to mining authorities, who failed to take action; when the defendants began proclaiming that they will do mining operations in item No.1 at Medarametla village where the suit schedule properties are situated and the defendants are residing, within the jurisdiction of this court.

26 Valuation & Court Fee: Value of the suit for the purpose of Court fees and jurisdiction, the relief of permanent injunction for item No.1 is valued at Rs.1,00,000/- notionally, on which a court fee of Rs.3,426/- is paid U/sec.26 (c) of A.C.F.& S.V. Act; for the relief of possession of item No.2 is valued at Rs.2,81,250/- being 3/4th market value of the property out of Rs.3,75,000/- and on which a C.F of Rs.5,326/- is paid U/sec.29 of A.C.F & S.V.Act; the relief of damages over item NO.2 is valued at Rs.8,00,000/- on which a C.F of Rs.10,426/- is paid U/sec.20 of A.C.F & S.V. Act Total Jurisdiction Value of Rs.11,81,250/- total C.F paid is Rs.19,178/- and it is paid vide Challan dt.22-2-2011 in S.B.I, Ongole

This Suit coming on 24-07-2013 for final hearing before me in the presence of Sri.W.L.Prasad, Advocate for Plaintiff and of Sri B.L.Narayana Rao, Advocate for Defendants 1 to 3; and having stood over for consideration till this day, this court doth order and decree:-

i)That the suit be and the same is hereby dismissed; ii)That the plaintiff do pay a sum of Rs. 30,077/- towards costs of the suit.

N.B: Plaint schedule and Plaint plan are hereto attached.

Given under my hand and the seal of the court, this the 2 nd day of August, 2013.

Judge, Family Court

FAC:: V ADDITIONAL DISTRICT JUDGE,

(FAST TRACK COURT) ONGOLE

TABLE OF COSTS

Plaintiff Defendants VakalatCM & FC not filed2-00 Stamp on plaint-- Process75-00 Commissioner Fee-- Advocate Fee 30,000-00 Typing & Writing ---- charges Total 30,077-00

Judge, F.C

FAC::V-ADJ

OS/145/2010

Dhammalapati Venkata Seshamma vs Byrapuneni Koteswara Rao

04 Jul 2013

IN THE COURT OF THE V-ADDITIONAL DISTRICT JUDGE (FTC) ::

ONGOLE

Present: T.Surya Narayana, B.Com., B.G.L.,

Judge, Family Court- Cum – VIII Additional District & Sessions Judge,

Ongole, FAC, V Additional District Judge (FTC), Ongole.

Thursday, this the 4th day of July, 2013

O.S.145/2010

Between:-

Dhammalapati Venkata Seshamma, w/o Venkateswarlu, aged 42 years, Hindu, House Wife, r/o Koppolu village, Ongole Mandal.

...... Plaintiff

AND 1.Byrapuneni Koteswara Rao, s/o Late Rama Rao, aged 58 years, Hindu, Business, r/o D.No.5-79, Prathibha College Street, Venkateswara Nagar, Opp. Power Office, Kurnool Road, Ongole.

2.Byrapuneni Nageswara Rao, s/o Late Rama Rao, aged 53 years, Hindu, Employee, r/o H.No.40-1-42, Bolinenivari Palem, Khammapalem, Ongole.

3.Vaddella Raghamma, w/o Venkateswarlu, aged 56 years, Hindu, House wife, r/o Thrupu Kamma Palem, Near D.No.42-1-42, Ongole.

4.Itta Ramesh Babu, s/o Venkata Rao, aged 32 years, Hindu, Business, r/o Kothapatnam Bus stand, D.No.42-1-84/1, East Khamma Palem, Ongole.

5.Kapu Prasad, s/o Nageswara Rao, aged 36 years, Hindu, Business, r/o D.No.: 40-3-20, Thangella Khasim Street, Ongole.

6.Bandaru Ananda Kiran, s/o Krupa Rao, aged 27 years, Hindu, Business, r/o D.No.:5-93, Idupulapadu village, Inkollu mandal.

7.Duggusetty Prem Kumar, s/o Chandra Sekharan, aged 40 years, r/o H.No.:37-1-58(92/1), 2nd lane, Mahendra Nagar, Ongole.

........ Defendants.

This suit is coming on 27-6-2013 for final hearing and disposal

before me in the presence of Sri Kareti Srinivasulu, Advocate for Plaintiff,

and Sri A.Ramaiah, Advocate for Defendants No.1 and Defendant No.4 to 7, D.2 and D.3 remained exparte and upon perusal of the plaint, and other material on record, and having stood over for consideration till this day this court delivered the following:- // JUDGMENT //

This suit was filed for partition of the items NO.1 to 5 of the plaint schedule properties into 4 equal shares and to allot one such share to the plaintiff and for mesne profits to be granted on a saparate application to be filed under Order 20 Rule 12 of C.P.C and for costs.

2. The brief averments of the plaint are as follows. The plaint schedule properties are ancestral properties of late Byrapuneni Rama

Rao. Item No.1 consists of 25 cents of wet land in S.No.46/4 and 47/1 situated in Ongole. Item No.2 consists of 60 cents of wet land in S.No.45 situated in Ongole. Item no.3 consists of RCC building and an extent of 24 gadies and an extent of 4 gadies of vacant site bearing door no.41-1- 42, Survey No.826, 13th Block, Ward No.5, situated in Bolineni Vari Street,

Khammapalem, Ongole town. Item No.4 consists of 4 cents of wet land in 90 cents of wet land in S.No.304/A.1 and an extent of 9 cents in

S,.No.304/A.3 of Koppolu village. Item No.5 consists of Ac.2.02 cents of wet land in S.No.224/2B of Koppolu village. The plaintiff and the third defendant are the daughters and D.1 and D.2 are the sons of late

Byrapuneni Rama Rao. The marriage of the plaintiff was solemnized in the year 1987. Byrapuneni Rama Rao died in the year 1994 and his wife predeceased him. Byrapuneni Rama Rao died intestate leaving behind 3 the plaintiff and D.1 to D.3 as his Legal Heirs. As such, the plaint schedule properties vested in them. After the death of Byrapuneni Rama

Rao D.2 acted as Kartha of Joint Family and he paid profits up to 2008 to the plaintiff and D.1 to D.3. Thereafter, he did not furnish accounts with regard to the income derived from the joint family properties. The suit schedule properties are in joint and constructive possession of the plaintiff and D.1 to D.3. The plaintiff wants to take separate steps for claiming mesne profits. Byrapuneni Rama Rao succeeded the schedule properties by virtue of the documents filed along with the plaint. During his life time, he sold some extent of item No.6 and settled some extent in favour of D.3. However, the plaintiff did not show or describe item

No.6 in the schedule attached to the plaint.

3. The plaintiff claimed that she is entitled for 1/4th share in the plaint schedule properties which are in joint and constructive possession of herself and D.1 to D.3 She came to know that D.1 executed a registered sale deed in favour of D.7 in respect of item no.2 under document no.9431/2007 and D.1 also executed General Power of

Attorney along with agreements of sale without possession in favour of

D.4 to D.6 on 22/4/2010 , 18/3/2010 and 18/3/2010 respectively. The plaintiff is not party to the said documents. The defendants have created the said documents as sham documents with a view to defeat the right of share of the plaintiff in the suit schedule properties.

4. The plaintiff demanded D.1 to D.3 for partition of the plaint schedule properties and to deliver possession of her share to her. But the defendants evaded to give any reply. On 25-8-2010 the plaintiff got 4 issued legal notice to D.1 to D.7 and the same was served on D.1 to D.6 but they failed to give any reply. However, D.7 gave reply with false allegations, in response to paper publication dated 28.9.2010 got published by the plaintiff in Eeenadu daily by the plaintiff. Hence the suit.

5. D.1 filed written statement and D.4 to D.6 filed adoption memo adopting the written statement of D.1. D.7 filed a separate written statement. D.2 and D.3 remained exparte. In his written statement D.1 denied the allegations and averments made in the plaint and put the plaintiff to strict proof of the same. According to D.1, the plaint schedule properties are the joint family properties and they devolved upon him and D.2 from their father who died in the year, 1994. After the death of their father, partition took place between him and D.2. 12 ½ cents of western side agricultural land in item no.1 fell to his share. After partition D.2 relinquished his right over his share i.e. 12 ½ cents in item no.1 under a document dated 22.6.1994. As such, D.1 became the absolute owner of extent of item no.1 of plaint schedule property. The total extent of item no.1 is 50 cents of land and out of which an extent of 25 cents was given to the daughter's daughter of D.3 under registered settlement deed dated 15.2.1993.

6. According to D.1, the extent of item no.2 is only 56 cents but not 60 cents as shown in plaint schedule. Out of the 56 cents, 28 cents of western side land fell to the share of D.1 and the eastern side 28 cents of land fell to the share of D.2. Item no.3 is a residential house. D.1 got southern half of it and D.2 got northern half of it. Item No.4 was also 5 partitioned and D.1 got western half, extent of 49 ½ cents and D.2 got eastern half of 49 ½ cents. Subsequent to the partition, the name of D.1 was mutated in the revenue records and pattadar pass book and title deed were also issued in his favour in respect of item no.1 and 2 of the plaint schedule properties. Likewise D.2 also got pattadar pass book and title deed in respect of his share of properties.

7. D.1 also stated that at the time of marriage of the plaintiff, item no.5 was given to her and she was in possession and enjoyment of the same and as such, the suit for partition is not maintainable. D.1 further stated that at the instance of D.3 an extent of 25 cents of land was given to her grand daughter. D.1 alleged that the plaintiff pleaded joint and constructive possession with a view to avoid payment of court fee and contended that there was no joint and constructive possession and as such the court fee paid is not correct and the plaintiff is not entitled to 1/4th share in the suit schedule properties. According to D.1, out of his share of properties he sold an extent of 28 cents of land in favour of D.7 under a registered sale deed and D.7 is in possession of the property purchased by him. Likewise, D.4 to D.6 purchased separate plots from D.1 and D.4 to D.7 are in possession and enjoyment of the properties purchased by them. D.1 reserved his right to file Additional

Written Statement and contended that there are no merits and bonafides in filing the suit. D.1 also alleged that the plaintiff filed the suit in collusion with D.2 in order to harass him and prayed to dismiss the suit with costs.

8. In the written statement of D.7 he had also denied the averments and allegations made in the plaint and put the plaintiff to 6 strict proof of the same. In his written statement, D.7 had almost reiterated the pleadings taken by D.1 in his written statement. He also stated that D.1 offered to sell his share in item no.2 of the plaint schedule property and he agreed to purchase the same for a sum of

Rs.7,85,000/- as a bill contract. On 15.10.2007 he (D.7) paid total sale consideration and D.1 received it and executed registered General Power of Attorney-cum-Sale agreement in respect of his share of 27 cents of land in item no.2. D.7 contended that the suit is not maintainable in respect of item no.2 of the suit schedule property and prayed to dismiss the suit with costs.

9. The following issues were framed.

1.Whether the plaintiff is entitled for partition as prayed for?

2.Whether the suit schedule properties were already partitioned as pleaded by D.1?

3.Whether the plaintiff is entitled for mesne profits? And

4. To what relief?

10. In support of her case, the plaintiff examined herself as P.W.1 and marked Ex.A.1 to Ex.A.19. She has also examined one B.Srinivasa rao, who is a third party, as P.W.2. In support of his case, D.1 examined himself as D.W.1 and marked Ex.B.1 and Ex.B.2. On behalf of D.7 no evidence was let in.

11. Heard the Learned Advocates for both sides.

12. ISSUE NO.1 :- In her affidavit-in-chief the plaintiff, as P.W.1, has reiterated the averments of the plaint and marked the following 7 documents. Ex.A.1 is Certified Copy of Relinquishment Deed dated 12.5.1922 executed by B.Narasamma in plaintiff's father's mother in respect of item no.3 and 4 of suit schedule. Ex.A.2 is Certified copy of sale deed dated 24.5.1946 executed by plaintiff's grand father in favour of plaintiff's father and paternal aunts regarding item no.3 and 4.

Ex.A.3 is Certified Copy of Sale deed dated 27/4/1951 executed by

B.Narasamma in favour of plaintiff's grand father in respect of item no.3.

Ex.A.4 is Certified Copy of Sale deed dated 16.5.1956 executed by

C.Krishnaiah and other in favour of plaintiff's father in respect of item no.5. Ex.A.5 is Certified Copy of Sale deed dated 15.2.1993 executed by plaintiff's father and his brothers in favour of V.Lalitha Kumari in respect of part of item no.1. Ex.A.6 is Certified Registered Agreement of sale

dated 15.10.2007 without possession with General Power of Attorney

executed by first defendant in favour of 7th defendant. Ex.A.7 is

Certified Copy of Registered Agreement of sale dated 18.3.2010 without possession with General Power of Attorney executed by D.1 in favour of

D.5. Ex.A.8 is Certified copy of registered agreement of sale dated 18-3- 2010 without possession with Generla Power of Attorney executed by D.1 in favour of D.6. Ex.A.9 is Certified Copy of registered Agreement of sale

dated 22/4/2010 without possession with General Power of Attorney

executed by D.1 in favour of D.4. Ex.A.10 is Office Copy of Legal Notice got issued by plaintiff to D.1 to D.7 dt.25.8.2010. Ex.A.11 is Returned

Registered Post Cover of D.1 dated 9.9.2010. Ex.A.12 is

Acknowledgment of D.2. Ex.A.13 is Acknowledgment of D.3. Ex.A.14 is

Acknowledgment of D.4. Ex.A.15 is Acknowledgment of D.5. Ex.A.16 is

Acknowledgment of D.6 .Ex.A.17 is Returned Registered Post Cover of

D.7 dt.30/8/2010. Ex.A.18 is Reply Notice got issued by the D.7 to 8 plaintiff's counsel. Ex.A.19 is Original Paper Publication in Eenadu

Telugu Daily News Paper. In her cross-examination, the plaintiff admitted that an extent of 25 cents of eastern extent in item no.1 was given to the grand daughter of D.3 at the instance of D.3 under a settlement deed and the said extent of 25 cents is the share of D.3 and the same was not shown in plaint schedule in item No.1. She also admitted that eastern half of item no.3 is in occupation and enjoyment of D.2 and western half of Item No.3 is in occupation and enjoyment of

D.1. It was elicited from her that her marriage was performed 23 years ago and before filing of the suit she never demanded for partition. The said version of plaintiff is not in accordance with the pleadings taken by her in para (d) of page 4 of plaint, wherein she pleaded that before filing the suit she demanded D.1 to D.3 for partition of plaint schedule properties and for delivery of possession of her share and D.1 to D.3 evaded to give a reply and hence she got issued legal notice dated 25.8.2010 to D.1 to D.7 and also got published paper publication on 28.9.2010 in Eenadu Telugu Daily.

13. It was also elicited from the plaintiff that she was native of

Koppolu village and was residing at Chennai by the date of her cross- examination, which was done on 10-7-2012. She stated that her parents told her that they would give 2 acres of land situated at Koppolu village at the time of her marriage, but the same was not given to her and hence she has shown the said property as item no.5 of the plaint schedule. She denied that item no.5 of the suit schedule was given to her at the time of her marriage and she was enjoying the same. At the same time, she stated that D.2 is cultivating item no.5 and admitted that 9

D.2 is her second brother and he is cultivating item no.5 on lease and giving lease amount to her and D.1 never objected for the same. She denied the suggestion that item no.5 of the plaint schedule was given to her and hence she has no right to ask for a share in the suit schedule properties, and that, she filed the present suit at the instance of D.2, who is not in good terms with D.1. According to her, D.2 is residing in a part of item no.3. She admitted that the remaining part of item no.3 is in a dilapidated condition. She denied that D.1 was residing at the outskirts of the village due to harassment caused by D.2.

14. The contention of the Learned Advocate for the defendants is that the plaintiff was given more than her share out of suit schedule properties at the time of her marriage and since then she is in possession and enjoyment of the same and hence now she is not entitled to seek partition and share in the suit schedule properties. On the other hand, the Learned Advocate for the plaintiff relied upon the admissions made by D.1 in his cross-examination and contended that suit schedule properties are ancestral properties and the plaintiff is entitled for a share therein. In his affidavit in chief, D.1, as D.W.1, also reiterated the averments of his written statement and marked the following documents.

Ex.B.1 is Pattadar Pass Book dated 21.9.1998 issued by the then MRO

Ongole in favour of D.1. Ex.B.2 is Title Deed dt.21.9.1998 issued by the then MRO Ongole in favour of D.1. In his cross-examination, D.1 admitted that the southern side owner of item no.2 filed O.S.94/2011 on the file of 1 AJCJ, Ongole and he was contesting the said suit and he got mentioned in the Written Statement filed in O.S.94/2011 that there were no boundaries stones in item no.1 and 2. But, at the same time, no other 10 suggestions were put to D.1 to show that O.S.94/2011 has got any connection with the subject matter of the present suit. Therefore, the pendency of O.S.94/2011 between D.1 and the southern side owner of item no.2 of plaint schedule property, is of no significance to the merits of the present case.

15. In his cross-examination, D.1 also admitted that D.2 was residing in item no.3 and house tax receipt and electricity receipts were in the name of his father in respect of item no.3. It was also admitted by D.1 that item no.4 and 5 are in the name of his father. According to him, he did not apply for issuing pass books to him in respect of item no.1 and 2.

However, the village munsif gave pattadar pass book and title deed to him. He also stated that there was no documentary evidence to show that item no5 was given to the plaintiff. He admitted that D.2 is cultivating the suit schedule properties except item no.3. He denied that the suit schedule properties were not partitioned. He asserted that the suit schedule properties were partitioned orally. D.1 gave the name of the plaintiff in O.S.94/2011 as B.Krishnamurthy . He admitted that the suit schedule properties are ancestral properties and his sisters are also entitled for a share. It was elicited from him that the property which was sold in favour of D.7 got more value and Ex.A.6 was not a possessory

Agreement executed in favour of D.7 because possession was with D.2 and possession was not given to D.7. Similarly, no documents were executed in favour of D.4 to D.6. D.1 stated that D.7 gave an amount of

Rs.50,000/- to him. He admitted that item no.1 and 2 are valuable properties and cost of one acre of land will be Rs.3 crores and cost of one acre of land in item no.4 is 1 ½ crores and cost of one acre of land in 11 item no.5 is Rs. one crore.

16. In his affidavit-in-chief P.W.2 supported the case of the plaintiff. In his cross-examination P.W.2 stated that D.1 got own house and was residing near RTC depot, Ongole and he got two portions and

D.2 was residing in one portion and the other portion was vacant.

According to him, the father of D.1 and D.2 gave item no.3 equally to D.1 and D.2 and he also settled some property in the name of daughter of

D.3. He also stated that the father of D.1 to D.3 and plaintiff owned only three items. He denied that the plaintiff was given item no.5 situated at

Koppolu at the time of her marriage and she was in possession of the same. He stated that he does not know whether D.2 was cultivating the item no.5 as tenant of plaintiff and paying maktha to her. He again stated that D.2 did not give any amount to the plaintiff in respect of suit schedule property. He denied that he does not know anything about the family affairs of plaintiff and D.1 to D.3. From the said version of P.W.2, it is quite clear that he was not having full knowledge of the subject matter of the suit and he came to the court to give evidence at the request of the plaintiff. Therefore, it is not safe to rely on the evidence of P.W.2.

17. From the cross-examination of P.W.1, it is quite clear that as per the convenience of the parties they were in possession and enjoyment of some parts of the suit schedule properties. There is no reliable evidence to show that there was a oral partition between D.1 and

D.2 after the death of their father. The plaintiff has produced Ex.A.1 to

A.4 to show the ownership of her father over the plaint schedule properties. Ex.A.5 is Certified Copy of sale deed dated 15/2/1993 12 executed by her father and his brothers in favour of V.Lalitha Kumari in respect of part of item no.1. The said Lalitha Kumari is daughter's daughter of D.3. Admittedly the property covered by Ex.A.5 is not part of suit schedule properties. Ex.A.6 to Ex.A.9 are the agreements of sales- cum-General Power of Attorneys executed by D.1 in favour of D.4 to D.7.

Ex.A.10 is Office Copy of Legal Notice got issued by the plaintiff to D.1 to

D.7dated 25.8.2010. Ex.A.11 is returned postal cover of D.1dt.9.9.2010.

Ex.A.12 to Ex.A.16 are the acknowledgments of D.2 to D.6. Ex.A.17 is the returned postal cover of D.7. Ex.A.18 is the reply notice got issued by D.7 to the counsel of plaintiff. Ex.A.19 is the paper publication in

Eenadu Telugu daily News Paper.

18. Ex.B.1 is Pattadar Pass Book dated 21.9.1998 issued by the then MRO Ongole in favour of D.1. Ex.B.2 is Title Deed dt.21.9.1998 issued by the then MRO Ongole in favour of D.1. In his cross- examination, D.1 stated that he did not apply for pattadar pass book for items no.1 and 2, but the village munsif gave the same to him. At the same time, the defendants did not produce any evidence before the court to show as to how and on what basis ex.B.1 and Ex.B.2 were given in favour of D.1. Ex.B.1 and Ex.B.2 do not disclose or indicate source of title to D.1 in respect of items No.1 and 2 of plaint schedule property. If really, there was oral partition between D.1 and .2 by metes and bounds as claimed by the defendants, definitely such an entry would have been made in Ex.B.1 and Ex.B.2. But no such entry is found in Ex.B.1 and

Ex.B.2. Therefore, there can be no hesitation to come to the conclusion that the parties were in possession and enjoyment of some parts of the suit schedule properties as per their convenience and understanding.

It ;is also born out from the evidence on record that D.2 was cultivating all the plaint schedule landed property and was paying some amounts to plaintiff and D.1 towards their share of income. Therefore, the admission of plaintiff in her cross-examination that D.2 is cultivating item no.5 on lease and giving lease amount to her and D.1 did not object for the same, can-not be a basis to hold that there was oral partition of the plaint schedule properties by metes and bounds. On the other hand, in his cross-examination, D.1 has categorically admitted that his father did not execute any documents before his death and all the suit schedule properties are ancestral properties and his sisters are also entitled for their respective shares. In such a case, it must be held that the plaintiff is entitled for partition of the suit schedule properties as prayed for.

Accordingly, the first issue is answered in favour of the plaintiff.

19. ISSUE NO.2:- While dealing with the issue no.1 it was found that there was no earlier partition of suit schedule properties by metes and bounds as pleaded by the defendants. Hence, the second issue is also decided in favour of the plaintiff and against the defendants.

20. ISSUE NO.3:- In her cross-examination, plaintiff has categorically admitted that D.2 was cultivating item no.5 of suit schedule property as her tenant and paying maktha to her. Her case is that she was not paid any income from out of the suit schedule properties towards her share.

But she did not produce any evidence regarding the income being derived from the suit schedule properties. In the absence of such evidence, the plaintiff can-not be granted any mesne profits, particularly when she has admitted that she was receiving maktha from D.2 in 14 respect of item no.5 of the suit schedule properties. Accordingly third issue is decided against the plaintiff.

21. In the result, the suit is decreed partly for partition of the suit schedule properties into 4 equal shares and for allotment of one such share to the plaintiff with good and bad qualities. However, the suit is dismissed with regard to prayer for grant of mesne profits. Both parties are directed to bear their own costs. Issue Preliminary decree accordingly.

Dictated to the Personal Assistant of this court, transcribed by

her corrected and pronounced by me in the open court, this the 4th day of July, 2013.

JUDGE, FAMILY COURT, ONGOLE,

FAC, V ADDL. DISTRICT JUDGE(FTC), ONGOLE.

APPENDIX OF EVIDNECE WITNESSES EXAMINED

FOR PLAINTIFF:- FOR DEFENDANTS:-

P.W.1 : D.Venkata Seshamma. D.W.1 :B.Koteswara rao P.W.2 : B.Srinivasa rao.

DOCUMENTS MARKED

For Petitioners:-

Ex.A.1 : Certified Copy of Relinquishment Deed dated 12.5.1922 executed by B.Narasamma in plaintiff's father's mother in respect of item no.3 and 4 of suit schedule.

Ex.A.2 : Certified copy of sale deed dated 24.5.1946 executed by plaintiff's grand father in favour of plaintiff's father and paternal aunts regarding item no.3 and 4.

Ex.A.3 :Certified Copy of Sale deed dated 27/4/1951 executed by B.Narasamma in favour of plaintiff's grand father in respect of item no.3.

Ex.A.4 :Certified Copy of Sale deed dated 16.5.1956 executed by C.Krishnaiah and other in favour 15 of plaintiff's father in respect of item no.5.

Ex.A.5: Certified Copy of Sale deed dated 15.2.1993 executed by plaintiff's father and his brothers in favour of V.Lalitha Kumari in respect of part of item no.1.

Ex.A.6 : Certified Registered Agreement of sale dated 15.10.2007 without possession with General Power of Attorney executed by first defendant in favour of 7th defendant.

Ex.A.7 : Certified Copy of Registered Agreement of sale

dated 18.3.2010 without possession with General

Power of Attorney executed by D.1 in favour of D.5.

Ex.A.8 : Certified Copy of registered Agreement of sale dated 18/3/2010 without possession with General Power of Attorney executed by D.1 in favour of D.6.

Ex.A.9 : Certified Copy of Registered Agreement of Sale

dated 22/4/2010 without possession with General

Power of Attorney executed by D.1 in favour of D.4.

Ex.A.10: Office Copy of Legal Notice got issued by plaintiff to D.1 to D.7 dt.25.8.2010.

Ex.A.11 : Returned Registered Post Cover of D.1 dated 9.9.2010.

Ex.A.12 : Acknowledgment of D.2.

Ex.A.13 : Acknowledgment of D.3.

Ex.A.14 : Acknowledgment of D.4.

Ex.A.15 : Acknowledgment of D.5.

Ex.A.16 : Acknowledgment of D.6 .

Ex.A.17 : Returned Registered Post Cover of D.7 dt.30/8/2010.

Ex.A.18 : Reply Notice got issued by the D.7 to plaintiff's counsel.

Ex.A.19 : Original Paper Publication in Eenadu Telugu Daily News Paper

For Defendants:-

Ex.B.1 : Pattadar Pass Book dated 21.9.1998 issued by the then MRO Ongole in favour of D.1. Ex.B.2 : Title Deed dt.21.9.1998 issued by the then MRO Ongole in favour of D.1.

Judge,F.C.,Ongole,

FAC,V ADJ (FTC),Ongole.

IN THE COURT OF THE V-ADDITIONAL DISTRICT JUDGE (FTC) :: ONGOLE

Present: T.Surya Narayana, B.Com., B.G.L.,

Judge, Family Court- Cum – VIII Additional District & Sessions Judge, Ongole,

FAC, V Additional District Judge (FTC), Ongole.

Thursday, this the 4th day of July, 2013

O.S.145/2010

Between:- Dhammalapati Venkata Seshamma, w/o Venkateswarlu, aged 42 years, Hindu, House Wife, r/o Koppolu village, Ongole Mandal.

...... Plaintiff

AND 1.Byrapuneni Koteswara Rao, s/o Late Rama Rao, aged 58 years, Hindu, Business, r/o D.No.5-79, Prathibha College Street, Venkateswara Nagar, Opp. Power Office, Kurnool Road, Ongole.

2.Byrapuneni Nageswara Rao, s/o Late Rama Rao, aged 53 years, Hindu, Employee, r/o H.No.40-1-42, Bolinenivari Palem, Khammapalem, Ongole.

3.Vaddella Raghamma, w/o Venkateswarlu, aged 56 years, Hindu, House wife, r/o Thrupu Kamma Palem, Near D.No.42-1-42, Ongole.

4.Itta Ramesh Babu, s/o Venkata Rao, aged 32 years, Hindu, Business, r/o Kothapatnam Bus stand, D.No.42-1-84/1, East Khamma Palem, Ongole.

5.Kapu Prasad, s/o Nageswara Rao, aged 36 years, Hindu, Business, r/o D.No.: 40-3-20, Thangella Khasim Street, Ongole.

6.Bandaru Ananda Kiran, s/o Krupa Rao, aged 27 years, Hindu, Business, r/o D.No.:5-93, Idupulapadu village, Inkollu mandal.

7.Duggusetty Prem Kumar, s/o Chandra Sekharan, aged 40 years, r/o H.No.:37-1-58(92/1), 2nd lane, Mahendra Nagar, Ongole.

........ Defendants.

This suit is filed for partition of Plaint Schedule Properties into 4 (four) equal shares and for allotment of one such share to the plaintiff with good and bad qualities and for grant of mesne profits on a separate application to be filed u/o 20, Rule 12 of C.P.C and for costs of the suit.

Plaint Presented on: 20/11/2010 and filed on : 09/12/2010 17

Valuation and Court fee:- Value of item No.1 : Rs. 24,20,000/- Value of item No.2 : Rs.58,08,000/- Value of item No.3 : Rs.19,44,000/- Value of item No.4 : Rs.52,70,760/- Value of item No.5 : Rs.20,20,000/- Total Value of the properties : Rs.1,74,62,760/- Plaintiff's 1/4th shares value is : Rs. 43,65,690/- 3/4th Market Value of the Plaintiff's Share : Rs.32,74,267/- Jurisdiction value is : Rs.32,74,267/-

Court fee of Rs.200/- is paid u/s 34(2) of APCF & SV Act as plaintiff and D.1 to D.3 are in joint and constructive possession of the Plaint Schedule Properties.

This suit is coming on 27-6-2013 for final hearing and disposal before me in the presence of Sri Kareti Srinivasulu, Advocate for Plaintiff, and Sri A.Ramaiah, Advocate for Defendants No.1 and Defendant No.4 to 7, D.2 and D.3 remained exparte and upon perusal of the plaint, and other material on record, and having stood over for consideration till this day this court doth order and decree:-

1) that the suit be and the same is hereby Preliminarily decreed partly,

2) that the suit be and the same is hereby decreed for partition of Plaint Schedule Properties into 4 equal shares for allotment of one such share to the plaintiff with good and bad qualities,

3) that the suit be and the same is hereby dismissed with regard to prayer for grant of mesne profits,

4) that each party do bear their own costs.

( Plaint Schedule is attached herewith the decree)

Given under my hand and the seal of this court, this the 4th day of July, 2013.

JUDGE, FAMILY COURT, ONGOLE,

FAC, V ADDL. DISTRICT JUDGE(FTC), ONGOLE.

TABLE OF COSTS

-nIL-

Judge,F.C.,Ongole,

FAC,V ADJ (FTC),Ongole.

ADVANCE RECEIPT

I received an amount of Rs.450/- (Rupees Four Hundred and

Fifty only) towards my conveyance charges for the month of March, 2013 for attending dictation at the residence of Officer for 9 trips @ Rs.50/- Per trip.

(A.V.SULOCHANA)

PERSONAL ASSISTANT.

ADVANCE RECEIPT

I received an amount of Rs.550/- (Rupees fFive Hundred and

Fifty only) towards my conveyance charges for the month of April and

May, 2013 for attending dictation at the residence of Officer for 11 trips @ Rs.50/- Per trip.

(A.V.SULOCHANA)

PERSONAL ASSISTANT.

MVOP/108/2012

Vemulapati Narayanaswamy vs T.Pavankumar

28 Jun 2013

IN THE COURT OF THE V-ADDITIONAL DISTRICT JUDGE (FTC) :: ONGOLE

Present: T.Surya Narayana, B.Com., B.G.L.,

Judge, Family Court- Cum – VIII Additional District & Sessions Judge, Ongole,

FAC, V Additional District Judge (FTC), Ongole.

Friday, this the 28th day of June, 2013

O.P.108/2012

Between:- 1.Vemulapati Narayana Swamy, s/o Raghavulu, aged 55 years.

2.Vemulapati Narasimha Swamy, S/O Narayana Swamy, aged 30 yrs,

Both are residents of Santhanuthalapadu village and mandal, Prakasam District.

...... Petitioners

AND 1.T.Pavan Kumar, s/o Srinivasa Rao, Aged 25 years, D.No.10-76-2, Pernamitta village, Santhanuthalapadu mandal, Prakasam Dt.

2.Taneeru Narasimha Rao, s/o Brahmaiah, aged 50 years, resident of Pernamitta village, Santhanuthalalpadu Mandal, Prakasm Distrct.

(owner of tractor AP 27 V 0775 with ICICI policy No.300814/63434913/00800) 3.Branch Manager, ICICI Lambard General Insurance Company Limited, Ongole.

........ Respondents.

This petition is coming on 20-6-2013 for final hearing and disposal

before me in the presence of Sri A.Hari Babu, Advocate for Petitioner and Sri

I.Mallikharjuna Reddy, Advocate for Respondents No.1 and 2, Sri S.Raghuntatha Reddy, Advocate for R.3 and upon perusal of the petition, and other material on record, and having stood over for consideration till this day this court delivered the following:- // A W A R D //

The two petitioners filed this petition u/s 166 of M.V.Act claiming a compensation of Rs.4,00,000/- together with interest and costs for the 2 death of the deceased-Vemulapati Narayanamma, who is the wife of 1st petitioner and mother of 2nd petitioner, in a road traffic accident which took place on 28-11-2011 at about 1.30 P.M. in Santhanuthalapadu village. On 28.11.2011 at about 1.30 P.M. the deceased was grazing she buffaloes along with the first petitioner on the eastern side of her village by the side of Podili-Ongole road in the vacant agricultural fields. While so, the deceased was standing in the left side margin of the fields. At that time, the driver of tractor bearing no. AP 27 V 0775 along with tanker drove the same at a high speed while going towards

Santhanuthalapadu. As a result, the tanker got separated from the tractor and the iron rod of the tanker fell on the road and was dragged to some distance and the same hit to the deceased and as a result she fell down and sustained injuries and died on the spot. The first petitioner gave report to police of Santhanuthalapadu police station and the same was registered as Crime No.98/2011 u/s 304-A of IPC and the police shifted the dead body of the deceased to RIMS hospital, Ongole for Post

Mortem Examination.

2. The deceased was the sole bread winner of her family. By doing milk business, the deceased used to earn Rs.5,000/- P.M. She was hale and healthy by the date of accident and was aged 50 years. The two petitioners were depending upon her income by the date of her death in the accident. R.1 is the driver of the crime vehicle, R.2 is its owner and

R.3 is insurer of the same as per policy no.300814/63434913/00800. As such, all the respondents are jointly and severally liable to pay the compensation of Rs.4,00,000/- together with interest and costs.

3. R.2 filed a counter and R.1 filed a memo adopting the same. In his counter R.2 stated that he is the owner of the crime vehicle and the same was insured with R.3 and the policy was in force by the date of accident and R.1, driver was having valid driving licence. R.2 also claimed that he had settled the case out of court and paid Rs.50,000/- to the petitioners towards full and final settlement of compensation. He contended that himself and R.1 are not liable to pay compensation to the petitioners.

4. R.3 filed a written statement denying the averments and allegations made in the petition and put the petitioners to strict proof of the same. R.3 contended that the driver of crime vehicle was not holding an effective driving licence at the time of accident and was also not qualified for holding or obtaining a valid driving licence and hence R.3 is not liable to pay compensation. It also contended that R.2 knowingly and willfully entrusted the crime vehicle to the driver who had no valid and effective driving licence as on the date of accident and thus violated the terms of the policy and hence R.3 is not liable to pay the compensation.

R.3 also contended that there was no negligence on the part of the driver of the crime vehicle in causing the accident. R.3 alleged that the petitioners and their relatives colluded with R.1 and R.2 and managed the police and fabricated the criminal case against the driver of the crime vehicle for the purpose of getting compensation. R.3 further alleged that

R.2 being the owner of crime vehicle failed to furnish the details relating to the accident and the insurance policy as required u/s 134(c) of M.V.Act and the concerned police also failed to furnish the information relating to 4 accident as required u/s 158(6) of the M.V.Act and hence R.3 is not liable to pay the compensation. R.3 contended that the rate of interest claimed by the petitioners is highly excessive and the claim for compensation for

Rs.4,00,000/- is also highly excessive and exorbitant. R.3 sought protection u/s 148, 149 and 170 of M.V.Act and reserved its right to file

additional counter and prayed to dismiss the petition with costs.

5. The following issues were framed.

1) Whether the accident occurred due to the rash and negligent driving of the Tractor bearing No. AP 27 V 0775 by its driver?

2) Whether the petitioners are entitled for compensation, if so, to what amount and from whom?

3) To what relief?

6. In support of their case the petitioners have examined, the first petitioner as P.W.1 and through him marked Ex.A.1 to Ex.A.3. In support of his case R.2 examined himself as R.W.1 and he got marked the agreement executed by the petitioners as Ex.B.1. On behalf of R.3 its legal Manager, by name, U.Bharani Kumar was examined as R.W.2 and the attested copy of Insurance Policy and Extract copy of driving licence of R.1 issued by the additional licensing authority, Ongole, was marked as Ex.B.2 and Ex.B.3, respectively. On behalf of R.3, the Junior Assistant working in RTO Office, Ongole, by name, Ch.Srinivasarao was examined as R.W.3 and the authorisation letter given to him was marked as Ex.B.4.

7. Heard the Learned Advocates of both sides. Written arguments were filed on behalf of R.3.

8. ISSUE NO.1:- In his affidavit in-chief P.W.1 has reiterated the averments and allegations made in the petition and marked the C.C. Of

FIR in Cr.No.98/2011 of Santhanuthalalapadu Police station as Ex.A.1,

C.C. Of charge sheet in C.C.36/12 on the file of Special Judicial Magistrate of Ist Class (Excise) Ongole as Ex.A.2 and the Post Mortem Certificate issued by RIMS hospital, Ongole in Cr.No.98/2011 of Santhanuthalapadu

Police station as Ex.A.3. In his cross-examination done on behalf of R.1 and R.2, P.W.1 admitted that R.2 is owner of the crime vehicle and he paid an amount of Rs.50,000/- to him towards compensation for the death of his wife, under the agreement i.e., Ex.B.1, in the presence of elders. He denied that the accident took place due to fault of the deceased, and that, there was no fault on the part of the driver of the crime vehicle. He also denied that the age of the deceased was 60 years by the date of accident, and that, she was not an earning member, and that, the 2nd petitioner was not dependent on the earnings of the deceased, and that, he filed this petition to harass R.1 and R.2 though he received Rs.50,000/- towards full and final settlement.

9. When cross-examined on behalf of R.3, P.W.1 stated that he has got one acre land and was getting an amount of Rs.5,000/- per month from his land. He denied that the deceased was aged more than 60 years, and that, the agreement under Ex.B.1 was created. He also denied that the driver of the tractor-tanker was not holding valid licence 6 and hence R.3 is not liable to pay the compensation. He further denied that the deceased was not an earning member and that she was dependent upon his children, and that, his claim is excessive.

10. In his chief affidavit, R.2, as R.W.1, stated that he is the owner of the crime vehicle bearing no. AP 27 V 0775 and R.1 was an experienced driver and was having valid driving licence and the crime vehicle was insured with R.3. He contended that the driver was not guilty of rash and negligent driving of the crime vehicle at the time of accident. According to him, as per the advice of the elders he paid Rs.50,000/- to the petitioners on 5-1-2012 and the petitioners have executed an agreement i.e., Ex.B.1. The said amount was paid in full and final settlement of the claim of the petitioners. He contended that he need not pay any compensation to the petitioners. In his cross-examination done on behalf of R.3, he denied that R.1 was not holding valid driving licence to drive the water-tanker, and that, knowing fully well the said fact, he had entrusted the crime vehicle to R.1 and thereby violated the terms and conditions of the policy. When cross-examined on behalf of petitioners, he denied that the petitioners did not execute Ex.B.1, and that Ex.B.1 is not valid, and that, he along with R.1 and R.3 are liable to pay the compensation.

11. In his affidavit in chief of R.W.2 reiterated the averments made by R.3 in its counter and marked Ex.B.2 and Ex.B.3. When cross- examined on behalf of R.1 and R.2, he denied that R.1 was holding the valid and effective driving licence, and that R.2 did not violate the terms 7 of the policy and hence R.3 is liable to pay the compensation. When cross-examined on behalf of petitioners, he denied that R.3 is liable to pay the compensation.

12. In his chief-examination R.W.3 stated that on receipt sumons from the court, the RTO, Ongole deputed him to give evidence in this case as per the authorisation letter i.e., Ex.B.4. According to him, he was working as Junior Assistant in RTO office, Ongole since 2009. He certified that Ex.B.3 was issued from their office and as per Ex.B.3 the driver T.Pavan Kumar (R.1) was holding driving licence to drive light motor vehicle-non transport and he was not competent to drive tractor along with water tanker. He also stated that in order to drive tractor along with water tanker, the driver should possess T & T Transport driving licence. In his cross-examination R.W.3 admitted that LMV non- transport licence was in force. He denied that he was not authorised to give evidence.

13. From the evidence of P.W.1, it is clear that the accident took place on 28.11.2011 at about 1.30 P.M. on the eastern side of

Santhanuthalapadu village while the deceased was standing in the left side margin of the vacant agricultural fields while grazing the she buffaloes. It is also clear from his evidence that at the time of accident the driver (R.1) of the crime vehicle drove it at a high speed while going towards Santhanuthalapadu and as a result the connecting rod between the tanker and the tractor got separated and the same was hit to the deceased and as a result she fell down and sustained fatal injuries and 8 died at the spot. From the cross-examination of P.W.1 no material was elicited to show that accident took place due to fault of the deceased but not due to negligence on the part of the driver of the crime vehicle.

Similarly, there is no material in the versions of R.W.1 to R.W.3 to show that the accident took place due to negligence on the part of the deceased, but not due to negligence on the part of the driver of the crime vehicle. In fact, R.1 did not enter into box to give evidence to prove that he was not guilty of rash and negligent driving of the crime vehicle at the time of accident. As such, on the basis of evidence of

P.W.1 and Ex.A.1 to Ex.A.3 it is held that the accident of this case took place due to rash and negligent driving of the crime vehicle by its driver (R.1) at the time of accident. Ex.A.2 is the C.C. Of charge sheet filed against R.1 for the offence u/s 304-A of IPC for causing the death of the deceased in the accident of this case due to his rash and negligent driving of the crime vehicle at the time of accident. The said charge sheet was taken cognizance by the concerned Learned Magistrate in

C.C.36/2012. Therefore, it is held that the accident of this case took place due to rash and negligent driving of the crime vehicle by its driver at the time of accident. Accordingly, the first issue is decided in favour of the petitioners.

14. ISSUE NO.2:- The case of the petitioners is that the deceased was aged about 50 years by the date of accident and she was earning

Rs.5,000/- Per Month by doing milk business and they were dependent upon her earnings and due to her sudden death in the accident they have lost their maintenance and thus prayed for grant of compensation 9 of Rs.4,00,000/- together with interest and costs. In the complaint attached to the F.I.R., the age of the deceased was shown as 50 years.

Even in the charge sheet i.e., Ex.A.2 her age was shown as 50 years. In the Post Mortem Report i.e., Ex.A.3 also her age was shown as 50 years.

On behalf of respondents, the contents of Ex.A.1 to Ex.A.3 were not challenged. Therefore, it is held that the age of the deceased was 50 years by the date of accident. It is settled law that in case of agricultural coolies, artisans and other labourers, it is difficult to prove their income.

As such , as per the decision of the Supreme Court reported in 2011 (6)

ALD 75 SC, the income of the deceased can be treated as Rs.4,500/- Per

Month. As far as, the dependency of the petitioners on the income of the deceased is concerned, the respondents have not produced any material to show that the petitioners were earning members by the date of accident and were not dependent on the income of the deceased. In such a case, it must also be held that the petitioners were dependent on the income of the deceased by the date of the accident.

15. Once it is held that the deceased was aged 50 years by the date of accident, the multiplier applicable is '13' as per the second schedule of the M.V.Act. Out of the monthly income of Rs.4,500/- of the deceased 1/3rd has to be deducted towards her personal expenses and in such case it comes to Rs.3000/- Per Month. If that be so, the calculation would be 3000 X 12 X 13 = 4,68,000/-. Whereas, the petitioner have claimed a compensation of Rs.4,00,000/- under all the heads. Hence, it is held that the petitioners are entitled to get a compensation of Rs.4,00,000/- for the death of the deceased together with interest at the rate of 7% Per Annum 10 from the date of petition to the date of deposit.

16. On behalf of R.3, it was contended in its written arguments that the driver of the crime vehicle was not holding valid and effective driving licence at the time of accident and R.2 being owner of the crime vehicle, knowing fully well the said fact entrusted the crime vehicle to the driver and thus violated the terms and conditions of the insurance policy i.e., Ex.B.2 and hence R.3 is not liable to pay the compensation. In support of its case, R.3 examined R.W.2 and R.W.3 and marked Ex.B.2 to

Ex.B.4. Ex.B.2 is the attested copy of Insurance Policy of crime vehicle.

It is not in dispute that R.3 insured the crime vehicle owned by R.2 and the same was in force by the date of accident. Ex.B.3 is the extract copy of driving licence of R.1. R.W.3 certified that it was issued by their office and as per Ex.B.3 R.1 driver was not eligible to drive tractor along with water tanker. Ex.B.2 shows that it was issued to R.1 for driving LMV non- transport on 16.11.2010 and the same was valid up-to 15.11.2030. In support of the contention of R.3, its Learned Advocate relied upon the following decisions:

1) NATIONAL INSURANCE COMPANY LIMITED VS KAKI VENKATA VENKATA RAMANA AND ANOTHER in MACMA No.5482/2008,

dated 24-6-2010 of the High Court of Andhra Pradesh.

2) NEW INDIA ASSURANCE COMPANY LIMITED VS PRABHU LAL reported in ACJ 2008 Page No.627 SC

3) NATIONAL INSURANCE COMPANY LIMITED VS KUSUM RAI reported in ACJ 2006 Page No.1336 SC

4) NEW INDIA ASSURANCE COMPANY LIMITED VS ROSHANBEN RAHEMANSHA FAKIR AND ANOTHER reported in ACJ 2008 Page No.2161 11

5) SURINA DURVASULA VS BHAVA NARAYANA MURTY AND OTHERs reported in 2008 ACJ Page No.654 of High Court of A.P.

6) NATIONAL INSURANCE COMPANY VS DHUPATI SINGAIAH AND OTHERS reported in ALT 2009 (3) Page 121 of High Court of A.P.

7) SARDARI VS SUSHEEL KUMAR reported in ACJ 2008 page 1307 of Supreme Court.

In all said decisions, it was held that the Insurance company is not liable to pay compensation if the driver of the crime vehicle had no valid and effective driving licence at the time of accident and the owner of the vehicle knowingly and willfully entrusted the crime vehicle to the driver who had no valid and effective driving licence.

17. The Learned Advocate for R.3 also relied upon a decision of High

Court of Bombay in UNITED INDIA INSURANCE COMPANY LIMITED VS

ANUBAI COPI CHAND THAKERE AND OTHERS reported in ACJ 2008 Page 213, wherein it was held that the tribunal has no statutory power to direct the insurance company to pay the amount of compensation for which it is to be exonerated from liability in view of fundamental breach of policy and direct that it may recover the amount from the insured.

18. On the other hand, the Learned Advocate for the petitioners relied upon two decisions of High Court of A.P. in NATIONAL INSURANCE

COMPANY LIMITED, vISAKHAPATNAM VS KARIBILLI APPALANARASA AND

OTHERS reported in 2012 (6) ALD 425 and E.RAJESWARI AND OTHERS

VS T.S.SEKHAR AND ANOTHER reported in 2011 (1) ALD 48.

19. In the first decision (supra), High Court of A.P. has held that even 12 though a driver holding licence to drive a tipper i.e., heavy motor vehicle, insurance company can-not plead for exoneration of liability if it fails to produce evidence to prove that owner of vehicle knowingly entrusted the vehicle to the driver. In the second decision (supra), the High Court of

A.P. has held that the holder of LMV licence issued to a driver enables him to drive vehicle of that category and it is immaterial whether such vehicle is being used as purely for private purpose or as a transport vehicle and where the vehicle involved in the accident is a light motor vehicle, the insurance company is liable to pay compensation.

20. In the present case, the respondents did not produce any evidence to prove that R.2 being owner of the crime vehicle knowingly and willfully entrusted the crime vehicle to its driver i.e., R.1 at the time of accident. In the absence of such evidence, it can-not be said that the terms and conditions of the policy i.e., Ex.B.2 were violated by R.1 and

R.2 at the time of accident. In the light of the said decision of the High

Court of A.P. reported in 2011 (6) 425, it is held that the decisions relied upon on behalf of R.3 can-not be applied to the facts of this case. In such a case, all the respondents are jointly and severally liable to pay the compensation of Rs.4,00,000/- together with interest at the rate of 7%

Per Annum from the date of petition to the date of deposit. It is on record that as per Ex.B.1 agreement the petitioners have received Rs.50,000/- as compensation from R.2. In this regard, P.W.1 admitted in his cross- examination that he received Rs.50,000/- from R.2 towards compensation for the death of his wife in the accident of this case as per Ex.B.1.

Therefore, an amount of Rs.50,000/- is to be deducted from the share of 13 the compensation payable by R.2. Accordingly, the point is decided in favour of the petitioners.

21. In the result, the petition is allowed with costs and the petitioners are awarded compensation of Rs.4,00,000/- together with interest at the rate of 7 % Per Annum from the date of petition till the date of deposit. R.1 to R.3 are jointly and severally liable to pay the same and they are directed to deposit the same within 2 months. R.2 is permitted to deduct Rs.50,000/- from out of his share of compensation payable to the petitioners. First petitioner being the husband and second petitioner being the son of the deceased are entitled to share the compensation in the ratio of Rs. 2 ½ lakhs and 1 ½ lakhs, respectively.

On deposit of the compensation amount both the petitioners are permitted to withdraw Rs.1,00,000/- each and the balance compensation amount shall be kept in fixed deposit in any National Bank for a period of one year. Advocate fee is fixed at Rs.4,000/-.

Dictated to the Personal Assistant of this court, transcribed by

her corrected and pronounced by me in the open court, this the 28th day of June, 2013.

JUDGE, FAMILY COURT, ONGOLE,

FAC, V ADDL. DISTRICT JUDGE(FTC), ONGOLE.

APPENDIX OF EVIDNECE WITNESSES EXAMINED

FOR PETITIONERS:- FOR RESPONDENTS:-

P.W.1 :V.Narayana Swamy R.W.1 :T.Narasimha rao R.W.2 : U.Bharani Kumar. R.w.3 :Ch.Srinivasa Rao.

DOCUMENTS MARKED

For Petitioners:-

Ex.A.1 : C.C. Of F.I.R. Ex.A.2 : C.C. Of Charge Sheet

Ex.A.3 : C.C. Of P.M.Certificate.

For Respondents:-

Ex.B.1 :-Agreement executed by P.W.1 and his son.

Ex.B.2 : Attested copy of Policy

Ex.B.3 : Extract copy of Driving licence of R.1.

Ex.B.4 : Authorisation Letter of R.W.3.

Judge,F.C.,Ongole,

FAC,V ADJ (FTC),Ongole.

IN THE COURT OF THE V-ADDITIONAL DISTRICT JUDGE (FTC) :: ONGOLE

Present: T.Surya Narayana, B.Com., B.G.L.,

Judge, Family Court- Cum – VIII Additional District & Sessions Judge, Ongole,

FAC, V Additional District Judge (FTC), Ongole.

Friday, this the 28th day of June, 2013

O.P.108/2012

Between:- 1.Vemulapati Narayana Swamy, s/o Raghavulu, aged 55 years.

2.Vemulapati Narasimha Swamy, S/O Narayana Swamy, aged 30 yrs,

Both are residents of Santhanuthalapadu village and mandal, Prakasam District.

...... Petitioners

AND 1.T.Pavan Kumar, s/o Srinivasa Rao, Aged 25 years, D.No.10-76-2, Pernamitta village, Santhanuthalapadu mandal, Prakasam Dt.

2.Taneeru Narasimha Rao, s/o Brahmaiah, aged 50 years, resident of Pernamitta village, Santhanuthalalpadu Mandal, Prakasm Distrct.

(owner of tractor AP 27 V 0775 with ICICI policy No.300814/63434913/00800) 3.Branch Manager, ICICI Lambard General Insurance Company Limited, Ongole.

........ Respondents.

This petition is filed by the petitioners U/sec.166 of M.V. Act, and u/s 455 of APMV Rules, 1989 claiming compensation of Rs.4,00,000/- together with interest at 12% P.A. from the date of petition till the date of realization, for the death of the deceased Vemulapati Narayanamma, w/o Narayana Swamy, in a Motor Vehicle Accident occurred on 28-11- 2011 at about 1.30 P.M near Santhanuthalapadu village, near Podili- Ongole road within the limits of Santhanuthalapadu P.S., in Cr.No.98/2011 U/secs.304-A I.P.C and for costs and other reliefs.

Petition presented on : 9-3-2012 And filed on : 18-4-2012

Court Fee:- A Court fee of Rs.3,360/- is paid U/Sec.475 of M.V. Rules for the compensation amount of Rs.4,00,000/- on the account of Prl. District Court. This petition came on 20-6-2013 for final hearing and disposal before me in the presence of Sri A.Hari Babu, Advocate for Petitioner and Sri I.Mallikharjuna Reddy, Advocate for Respondents No.1 and 2, Sri S.Raghuntatha Reddy, Advocate for R.3 and upon perusal of the petition, and other material on record, and having stood over for consideration till this day, this court doth order and decree:-

1. That the Respondents 1 to 3 jointly and severally do pay the compensation amount of Rs.4,00,000/- with interest at 7% P.A. from the date of petition i.e., 09-03-2012 till the date of realization;

2. That the Respondents 1 to 3 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 two months from the date of this award;

3. That the Respondent 2 is permitted to deduct Rs.50,000/- from out of his share of compensation payable to the petitioners.

4. That the respondents 1 to 3 likewise do pay a sum of Rs. 7,572/- towards costs of the petition.

5. That on such deposit, Petitioners 1 & 2 are entitled to share the compensation amount with interest and costs in the ratio of 2 ½ lakhs and 1 ½ lakhs and they are permitted to withdraw an amount of Rs.1,00,000/- each and the remaining amounts of them shall be kept in fixed deposit in any nationalised bank for a period of one year;

6. Advocate fee is fixed at Rs.4,000/-

Given under my hand and the seal of the court, this the 28th day of June, 2013.

JUDGE, FAMILY COURT, ONGOLE,

FAC, Chairman, Motor Accidents Claims Tribunal-cum-

V ADDL. DISTRICT JUDGE(FTC), ONGOLE.

TABLE OF COSTS

For Petitioners:- For Respondents:-

Stamp on Vakalat Rs. 2-00 no CM and F.C. Filed. Court fee RS. 3,360-00 Process Rs. 110-00 Advocate fee Rs. 4,000-00 Type Charges Rs. 100-00 ------------------ Rs.7,572-00 ------------------ 17

Judge,F.C.,Ongole,

FAC,V ADJ (FTC),Ongole.

CMA/3/2012

Peddi Reddy Manikyamma aliaz Manikyam vs Peddi Reddy Venkateswara Reddy aliaz Venkateswarlu

27 Jun 2013

IN THE COURT OF THE V-ADDITIONAL DISTRICT JUDGE (FTC) :: ONGOLE

Present: T.Surya Narayana, B.Com., B.G.L.,

Judge, Family Court- Cum – VIII Additional District & Sessions Judge, Ongole,

FAC, V Additional District Judge (FTC), Ongole.

Thursday, this the 27th day of June, 2013

C.M.A.No.3/2012

Between:-

Peddi Reddy Manikyamma @ Manikyam, wife of Venkateswara Reddy, Hindu, aged about 46 years, House wife, r/o, C/o Ilavala Hanuma Reddy, Vengamukkalapalem village, Ongole Mandal, Prakasam District.

......... Appellant/ Petitioner/plaintiff

A N D

Peddi Reddy Venkateswara Reddy @ Venkateswarlu, s/o Venka Reddy, Hindu, aged about 50 years, cultivation, previously r/o C/o C.Pratap, Kondamitta, Ongole town, Prakasam District, Now r/o Near Kalikaparameswari temple, Emanipalem, Ongole town, Prakasam District.

....... Respondent/Respondent/ Defendant.

CIVIL MISCELLANEOUS APPEAL FILED ON BEHALF OF THE APPELLANT

AGAINST THE ORDER AND DECRETAL ORDER DATED 1.12.2011 IN I.A.NO.233/2011

IN O.S.236/2011, ON THE FILE OF III ADDITIONAL JUNIOR CIVIL JUDGE, ONGOLE

UNDER ORDER 39 RULE 1 AND 2 OF C.P.C.

Between:-

Peddi Reddy Manikyamma @ Manikyam, wife of Venkateswara Reddy, Hindu, aged about 46 years, House wife, r/o, C/o Ilavala Hanuma Reddy, Vengamukkalapalem village, Ongole Mandal, Prakasam District.

......... Petitioner/plaintiff.

A N D

....... Respondent/ Defendant.

This Civil Miscellaneous Appeal coming on 19-6-2013 for final hearing and disposal

before me in the presence of Sri K.Anji Reddy, Advocate for Appellant and Sri S.Siva Rama

Krishna Prasad, 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:- // O R D E R //

This Civil Miscellaneous Appeal was preferred against the Order dated 1-12-2011, passed in I.A.233/2011 in O.S.236/2011 on the file of III Additional Junior Civil Judge, Ongole.

2. The appellant is the petitioner/Plaintiff and the respondent is the respondent/defendant in I.A.233/2011 in O.S.236/2011. For the purpose of convenience, the parties are referred to their array in I.A.233/2011. The Petitioner/Plaintiff filed I.A.233/2011 in O.S.236/2011 under Order 39

Rule 1 and 2 of C.P.C. seeking temporary injunction against the respondent/defendant restraining him from alienating the petition schedule property comprising of items No.1 to 13 situated at

Vengamukkalapalem and Cheruvukommupalem villages and Ongole Muncipality. She filed the main suit for grant of maintenance amount of Rs.5000/- per month and for creating charge over the plaint schedule properties for due realisation of the maintenance amount to be granted to her and for costs. Her case is that the respondent/defendant is her husband and her marriage was performed with him on 4-5-1980 at Vengamukkalapalem village as per Hindu Dharma Sastras and they lived together happily for about two years and during their wedlock she gave birth to a female child by name Bhargavi in the year 1988 and subsequently the respondent/defendant started harassing her by demanding money or to transfer landed properties from the name of her mother and also threatened her. She alleged that on 6.12.1990 the respondent married another woman without obtaining divorce from her as per law. As such, she was forced to live separately from the respondent/defendant. The second wife of the respondent/defendant also left him as he caused unbearable torture to her. According to the petitioner she filed M.C.17/1992 on the file of III

Additional Junior Civil Judge, Ongole for maintenance and an amount of Rs.250/- per month as

maintenance was granted to her daughter and her plea for maintenance was dismissed. She preferred CRP.69/1995 and the District & Sessions Judge, Ongole allowed the same and awarded maintenance to her from the date of order passed in the Maintenance Case. She filed enhancement petition and her maintenance was enhanced to Rs.500/- Per month as per order dated 8-10-2003 in 3

Crl.M.P.No.1633/2002. She alleged that the respondent/defendant did not pay the maintenance to

them regularly and hence on their petition he was committed to civil prison for realisation of the maintenance amount. Even then he was not paying the maintenance amount since last 4 years. Her petitions for enforcement of maintenance order and the enhancement of the maintenance are pending. Her daughter Bharghavi filed partition suit claiming her share in the petition schedule properties after attaining her majority. During pendency of the said partition suit, the respondent/defendant made some allegations and as a result O.S.114/2007 and O.S.20/2008 were transferred to the Senior Civil Judge's Court, Parchur and were renumbered as O.S.30/2009 and

O.S.31/2009 and the same are pending. According to the petitioner, she is not in a position to

maintain herself as she was affected with 'sciatica' and other ailments and she has no money to meet the medical expenses and the respondent is trying to alienate the petition schedule properties to third parties along with his mother by entering into agreements, with a view to deprive her from proceeding against his properties for realisation of the maintenance amount. She claimed that she requires a minimum amount of Rs.5,000/- Per Month towards her livelihood, medical expenses, food and clothing. The respondent/defendant was in possession and enjoyment of about 11 acres of land and getting income of Rs.2,00,000/- by raising subabul, eucalyptus plantations etc. He had no dependents to be maintained by him except his mother. Hence, the petitioner prayed for frant of maintenance amount of Rs.5,000/- Per Month to her and to create charge over the Petition Schedule

Properties by way of temporary injunction.

3. In his counter the respondent/defendant denied the allegations made by the petitioner in her affidavit and the petition. According to him the petitioner filed C.C.98/1994 against him for the offence u/s 494 of IPC i.e., bigamy and it ended in acquittal in the year, 1998 as she could not prove her case. Several cases filed by the petitioner against him in many courts are pending. He contended that Peddi Reddy Bhargavi was not born to him as the marital life between him and the petitioner was not conjumated at all and there is no cohabitation between him and the petitioner after the marriage. He also claimed that the family of the petitioner got 3 ½ acres of land at Pelluru village and the Government acquired the same and paid compensation of Rs.7 ½ lakhs in 4

L.A.O.P.123/88 on the file of Prl.Senior Civil Judge's Court, Ongole and the petitioner got 1/5th share i.e., Rs.1,50,000/-. The family of the petitioner sold away the remaining land to third parties and the petitioner got Rs.18 lakhs towards her share from the sale proceeds. As such, the petitioner is financially sound and can maintain her and her daughter. The respondent contended that there was no intention to him to sell the petition schedule properties to third parties along with her mother. He also contended that if the schedule properties are sold to third parties, he becomes a landless poor. As such, there was no ground or necessity to grant temporary injunction against him and prayed to dismiss the petition.

4. During the course of enquiry before the trial court both parties did not adduce any oral evidence. On behalf of petitioner Ex.P.1 to Ex.P.3, namely, C.C. Of order in MC.17/1992, C.C. Of

Judgment in C.C.98/94 and C.C. Of order in Crl.M.P.1633/2002 in M.C.17/92 were produced and the respondent/defendant did not produce any documents.

5. On the basis of said pleadings of both the parties and Ex.P.1 to Ex.P.3 the trial court framed the following point for consideration.

“Now the point for determination is whether the petitioner is entitled for temporary injunction as prayed for?”

6. After taking into consideration the pleadings, Ex.P.1 to Ex.P.3 and the arguments of both parties, the trial court dismissed the petition on the ground that the petitioner failed to prove that she got prima-facie case and balance of convenience in her favour. The finding of the trial is based on the ground that since the respondent/defendant admitted in his counter that he is not alienating any properties to third parties, the question of granting interim injunction in favour of the petitioner does not arise.

7. Aggrieved by the said dismissal order and decretal order passed by the trial court, the petitioner/plaintiff preferred this CMA on the following grounds.

1) The order and the decretal order of the trial court are against law and vontrary to the facts, weight of evidence and probabilities of case.

2) The trial court failed to make proper appreciation of Ex.P.1 to Ex.P.3.

8. For the said grounds and the grounds to be urged at the time of hearing of the appeal the petitioner/plaintiff prayed to allow the appeal with costs and to set aside the order and decretal order of the trial court and to grant temporary injunction in her favour.

9. In the present appeal, both parties did not produce any additional evidence. Heard the

Learned Advocates for both sides.

10. 1. The point for consideration is whether the petitioner proved her prima-facie case and balance of convenience for grant of temporary injunction in her favour as prayed for?

2. Whether the order and decretal order of the trial court suffer from any irregularity or illegality?

11. POINT NO.1:- The contention of the Learned Advocate for the petitioner is that the respondent did not pay the maintenance amount to the petitioner as per the orders passed in

M.C.17/92 and was trying to alienate the petition schedule properties to third parties and therefore

temporary injunction to be granted in favour of the petitioner restraining the respondent from alienating the petition schedule properties to third parties pending disposal of the suit. On the other hand, the contention of the learned Advocate for the respondent is that if the respondent alienates or sells away the petition schedule properties he becomes a landless poor and loses his livelihood and hence it can not be said that the respondent was trying to alienate the petition schedule properties to third parties. He also contended that since the respondent categorically stated in his counter before the trial court that he was not alienating the petition schedule property to third parties, the petitioner can not be granted temporary injunction as prayed by her.

12. In support of her case the petitioner has produced Ex.P.1 to Ex.P.3. They relate to the proceedings in M.C.17/92 and C.C.98/94. The petitioner did not produce any evidence to prove that the respondent has made any attempts or tried to sell away the petition schedule properties to third parties. In the absence of any such evidence it can-not be said that the petitioner succeeded to prove her allegation that the respondent made any attempts to to sell away or to alienate the 6 petition schedule properties to third parties with a view to deprive her right to recover the maintenance amount granted to her in M.C.17/92. Apart from the above, the trial court was right in holding that when the respondent categorically admitted/stated in his counter that he is not going to alienate or sell the petition schedule properties, the petitioner is not entitled for grant of temporary injunction as prayed for by her. When the respondent categorically stated in his counter in I.A.233/11 in O.S.236/11 that he had no intention to sell or alienate the petition schedule property to third parties along with his mother and if he alienates them or sells them to third parties he becomes landless poor, it can-not be said that the petitioner has got prima-facie case and balance of convenience in her favour. As already noted above, Ex.P.1 to Ex.P.3 are not helpful to the petitioner to prove that the respondent has intended to sell or alienate the petition schedule property to third parties. As such, the point is decided against the petitioner.

13. POINT NO.2:- In the light of the finding given in respect of the Point No.1, it is also held that the order and decretal order of the trial court do not suffer from any irregularity or illegality.

Accordingly the 2nd point is also answered against the petitioner.

14. In the result, the Civil Miscellaneous Appeal is dismissed with costs and the order and decretal order of the trial court are confirmed. Advocate fees fixed as Rs.1,000/-.

Dictated to the Personal Assistant of this court, transcribed by her corrected and

pronounced by me in the open court, this the 27th day of June, 2013.

Sd/- T.Surya Narayana.

JUDGE, FAMILY COURT, ONGOLE,

FAC, V ADDL. DISTRICT JUDGE(FTC), ONGOLE.

APPENDIX OF EVIDNECE WITNESSES EXAMINED

-NONE-

DOCUMENTS MARKED

-NIL- Id/- T.S.N.

Judge,F.C.,Ongole,

FAC,V ADJ (FTC),Ongole.

IN THE COURT OF THE V-ADDITIONAL DISTRICT JUDGE (FTC) :: ONGOLE

Present: T.Surya Narayana, B.Com., B.G.L.,

Judge, Family Court- Cum – VIII Additional District & Sessions Judge, Ongole,

FAC, V Additional District Judge (FTC), Ongole.

Thursday, this the 27th day of June, 2013

C.M.A.No.3/2012

Between:-

Peddi Reddy Manikyamma @ Manikyam, wife of Venkateswara Reddy, Hindu, aged about 46 years, House wife, r/o, C/o Ilavala Hanuma Reddy, Vengamukkalapalem village, Ongole Mandal, Prakasam District.

......... Appellant/ Petitioner/plaintiff

A N D

....... Respondent/Respondent/ Defendant.

CIVIL MISCELLANEOUS APPEAL FILED ON BEHALF OF THE APPELLANT

AGAINST THE ORDER AND DECRETAL ORDER DATED 1.12.2011 IN I.A.NO.233/2011

IN O.S.236/2011, ON THE FILE OF III ADDITIONAL JUNIOR CIVIL JUDGE, ONGOLE

UNDER ORDER 39 RULE 1 AND 2 OF C.P.C.

Between:-

Peddi Reddy Manikyamma @ Manikyam, wife of Venkateswara Reddy, Hindu, aged about 46 years, House wife, r/o, C/o Ilavala Hanuma Reddy, Vengamukkalapalem village, Ongole Mandal, Prakasam District.

......... Petitioner/plaintiff.

A N D

....... Respondent/ Defendant.

This Civil Miscellaneous Appeal is filed by the Appellant/Petitioner/Plaintiff to set aside the order and decretal order of the court of III-Addl. Junior Civil Judge, Ongole passed in I.A.233/2011 in O.S.236/2011 on 1-12-2011 and to grant temporary injunction in favour of the 8

Appellant/Petitioner/Plaintiff. The appeal was filed U/O 43 Rule 1 (R) of CPC.

Appeal presented on: 18-01-2012 Appeal filed on : 20-01-2012 Value of the Appeal: A fixed court fee of Rs.3/- is paid as required Under Article 3(i) of Schedule-II read with Sec.49 of APCF & SV Act. This Civil Miscellaneous Appeal coming on 19-6-2013 for final hearing and disposal before me in the presence of Sri K.Anji Reddy, Advocate for Appellant and Sri S.Siva Rama Krishna Prasad, Advocate

for respondent; and having stood over for consideration till this day, this court doth order and decree:-

1) That the appeal be and the same is hereby dismissed by confirming the Lower Court Order and Decretal order passed in I.A.233/2011 in O.S.236/2011 on 1- 12-2011 on the file of III-Addl. Junior Civil Judge, Ongole; and

2) Thatthe Appellant/Petitioner/plaintiffdopaytothe Respondent/Respondent/Defendant a sum of Rs.1,002/- towards costs of the appeal.

Given under my hand and the seal of the court, this the 27th day of June, 2013.

JUDGE, FAMILY COURT, ONGOLE,

FAC, V ADDL. DISTRICT JUDGE(FTC), ONGOLE.

Table of costs

For Appellant:- For Respondent:-

-nill- Stamp on Vakalat : Rs. 2-00 Advocate fee : Rs.1000-00 ....................... Rs.1,002-00 ......................

Judge,F.C.,Ongole,

FAC,V ADJ (FTC),Ongole.

Order Record 22 total

Case No.	Parties	Date	Type	Outcome
G.W.O.P/10/2011	Meerajothu Sobha vs Meerajothu Indira Prriyadarsini	21 Apr 2014	Order	—
A.R.B.O.P/7/2012	Dr. Annu Venkata Sundara Rao vs Ms. Vaatsalya Health Care Solutions Private Limited Rep. by its C.E.O	07 Feb 2014	Order	—
A.R.B.O.P/9/2011	Shaik Babu vs Shriram Transport Finance Company	30 Jan 2014	Order	—
A.R.B.O.P/10/2011	Shaik Babu vs Ms.Shiram Transport Finance Company Limited	30 Jan 2014	Order	—
AS/114/2013	Udumula Kondareddi vs Madarasi Lakshman Naik	02 Sep 2013	Order	—
OS/106/2011	Athota Subbayamma vs Dhullipalla Ramanujamma	08 Aug 2013	Order On Exgibit	Compromised
OS/41/2011	Kanumuri Annapurnamma vs Medaramitala Ravikiran	02 Aug 2013	Order On Exgibit	—
CRLRP/50/2013	Vallabhaneni Renuka vs Vallabhaneni Chitti Babu	10 Jul 2013	Order	—
OS/145/2010	Dhammalapati Venkata Seshamma vs Byrapuneni Koteswara Rao	04 Jul 2013	Order On Exgibit	—
CRLMP.BAIL/763/2013	Meeniga Ramanaiah vs State S.H.O., P.C.palli P.S. rep. by Public prosecutor, Ongole	01 Jul 2013	Order	—
MVOP/108/2012	Vemulapati Narayanaswamy vs T.Pavankumar	28 Jun 2013	Order On Exgibit	—
CRLMP.BAIL/752/2013	Mannam Narasaiah vs S.H.O., P.C.Palli P.S. rep. by Public Prosecutor, Ongole	28 Jun 2013	Order	—
CRLMP.BAIL/753/2013	Velpula China Anjaneyulu vs S.H.O., Martur P.S. rep. by Public Prosecutor, Ongole	28 Jun 2013	Order	—
CRLMP.BAIL/754/2013	Darla Bala Narasaiah vs The State S.H.O., Bestawaripeta P.S. rep. by Public Prosecutor, Ongole	28 Jun 2013	Order	—
CMA/3/2012	Peddi Reddy Manikyamma aliaz Manikyam vs Peddi Reddy Venkateswara Reddy aliaz Venkateswarlu	27 Jun 2013	Order On Exgibit	—
CRLMP.BAIL/745/2013	Marneni Venkata Rao vs The State S.H.O., Maddipadu P.S. Rep. by Public Prosecutor, Ongole	27 Jun 2013	Order	—
CRLRP/49/2013	Kunda Praveen Kumar vs The State Sub-Inspector of Police, N.G.Padu P.S. rep. by Public Prosecutor, Ongole	26 Jun 2013	Order	—
CRLMP.BAIL/737/2013	Shaik Khathija Begum vs SHO, Ongole II-Town P.S. rep. by Public Prosecutor, Ongole	25 Jun 2013	Order	—
CRLMP.BAIL/738/2013	Sontem Venu Gopal Reddy vs State SHO., Markapur Town P.S. rep. by Public Prosecutor, Ongole	25 Jun 2013	Order	—
A.R.B.O.P/7/2013	Ms.Indusind Bank Ltd., vs Ms.Sunshine Exports	17 Jun 2013	Order	—
L.A.O.P/1/2010	Land Acquisition Officer cum R.D.O.,Markapur vs Maddipati Narasimha Murthy	31 May 2013	Order	—
CRLRP/39/2013	State Station House Officer, Singarayakonda Police Station rep. by Public Prosecutor, Ongole vs D.Sreenivasa Rao	15 May 2013	Order	—

Frequently Asked Questions

How many cases has Sri T. Surya Narayana handled?

Sri T. Surya Narayana has handled 23 court orders since 2013 at Prl District Court Ongole. The average disposal rate is 2 orders per month.

What types of cases does Sri T. Surya Narayana hear?

Based on available records, Sri T. Surya Narayana primarily handles Civil matters (Original Suits, Civil Misc. Appeals) and Motor Accident matters (Motor Accident Claims) at Prl District Court Ongole.

Where is Sri T. Surya Narayana currently posted?

Sri T. Surya Narayana is posted as VI-ADDITIONAL DISTRICT AND SESSIONS JUDGE,MARKAPUR at Prl District Court Ongole, Prakasham, Andhra Pradesh.

Are judgments by Sri T. Surya Narayana available online?

Yes. 11 judgments by Sri T. Surya Narayana are available on Legistro with full text, outcome, and sections cited.

How fast does Sri T. Surya Narayana dispose cases?

Sri T. Surya Narayana disposes approximately 2 cases per month, based on 23 orders handled over their tenure at Prl District Court Ongole.

Since when is Sri T. Surya Narayana serving?

Sri T. Surya Narayana has been serving at Prl District Court Ongole since 2013.

Case Types

CRLMP 32%

A 23%

OS 14%

CRLRP 14%

CMA 5%

L 5%

AS 5%

MVOP 5%

Posting History

Mar 2014 — May 2014

VI-ADDITIONAL DISTRICT AND SESSIONS JUDGE,MARKAPUR
Apr 2013 — May 2014

V-ADDITIONAL DISTRICT AND SESSIONS JUDGE, ONGOLE · 5 orders
Apr 2013 — May 2014

JUDGE,FAMILY COURT-CUM-VIII-ADDL.DIST.JUDGE,ONGOLE · 17 orders
Apr 2013 — Feb 2014

VI-ADDITIONAL DISTRICT AND SESSIONS JUDGE,MARKAPUR · 1 orders

Outcomes on Record

Compromised 1

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