IN THE COURT OF I ADDL. JUNIOR CIVIL JUDGE: AT VIJAYAWADA
Present: - Sri T.V.S.S. Prakash, III Addl. Junior Civil Judge, FAC/ I Addl. Junior Civil Judge Vijayawada.
Tuesday, this the 28th day of March, 2017
ORIGINAL SUIT No.68/2016
Between: Gondhesi Pushpalatha, W/o. Late Krishna Reddy, Hindu, aged 50 years, housewife and properties, R/o.D.No.9-8-19(2),Kothapeta,Vijayawada, Krishna District.
..PLAINTIFF.
And
1. Makka Naga Durgamba, W/o. Chalamareddy, Hindu, aged about 60 years, housewife, R/o.D.No. 9-9-11, Near Post Office, Brahmin St, Marupilla Chitti Street, Kothapet, Vijayawada-1.
2. Puthi Satyavathi, W/o. Illapareddy, Hindu, aged about 52 years, housewife, R/o.D.No.30-1-97, Puthi Vari Street, Vivekananda Road, Visakapatnam-20.
..DEFENDANTS.
This suit is coming before me on 31-01-2017 in the presence of Sri. K. Chandra Sekhara Rao, Advocate for the Plaintiff, and of Sri. P. Ravi, Advocate for the Defendants No.1 and 2; and upon hearing both sides, having perused the entire material on record and the matter having stood over till this date for consideration, the Court delivered the following:-
J U D G M E N T
This suit is filed by the plaintiff against the defendants 1 and 2 under
Order VII rules 1 and 2 read with section 26 C.P.C for specific performance of agreement of sale.
The facts of the plaint are:
2. The contentions of the plaintiff that she is resident of Vijayawada. The 1st defendant is also resident of Vijayawada and the 2nd defendant is permanent resident of Visakhapatnam. The defendants are Sisters-in-Law of the plaintiff and both the defendants and the plaintiff are co-sharers of the property in an extent of 96.8 sq.yds in R.S.No.387/23 situated in Kothapeta, Vijayawada with
R.C.C. building bearing D.No.9-8-19 with Assessment No.1764[Old], 21597[New] in ward No.10 of Vijayawada Municipal Corporation area which is described as plaint schedule herein. The plaintiff is having undivided 3/4th [75%] share and both the defendants having undivided 1/8th [12.5%] share in the plaint schedule property. The plaintiff is residing in the plaint schedule property and she is having physical possession and enjoyment of the said property. Originally the plaint schedule property is the ancestral property of Gondhesi Pothana Reddy [Father of the defendants and Father-in-Law of the plaintiff]. During his life time on 23-01-1987, the husband of the plaintiff by name Krishna Reddy died in a road accident. Subsequently, the plaintiff filed a suit vide O.S.No.429/1987 on the file of Hon’ble I Addl. Senior Civil Judge’s Court, Vijayawada seeking partition of the plaint schedule property for her undivided ¼ share as legal heir of her husband. The Hon’ble Court was pleased to pass preliminary decree in the above said suit on 06-04-1995 and aggrieved by the same the Father-in-Law of the plaintiff by name Gondhesi Pothana Reddy preferred appeal vide
A.S.No.1040/2001 before the Hon’ble High Court at Hyderabad. While the
matter is pending before the Hon’ble High Court, unfortunately Gondhesi
Pothana Reddy died intestate on 01-11-2004. The above said appeal was dismissed on 23-06-2011 confirming the decree and judgement of the Hon’ble I
Addl. Senior Civil Judge’s Court, Vijayawada vide O.S.No.429/1987. As such the plaintiff is having 1/4th share, Smt. Gondhesi Achayamma [Mother-in-Law of the plaintiff] is having undivided 1/4th share and Gondhesi Pothana Reddy is having undivided ½ share in the plaint schedule property. As Gondhesi Pothana Reddy died intestate his undivided ½ share devolved upon the plaintiff, defendants,
Smt. Gondhesi Achayamma [each 1/8th share in the property] as such the plaintiff and the defendants and the Mother-in-Law of the plaintiff is having following shares in the plaint schedule property:
Plaintiff is having 1/4th + 1/8th = 37.5% 1st Defendant is having 1/8th = 12.5% 2nd Defendant is having 1/8th = 12.5%
Gondhesi Achayamma is having 1/4th + 1/8th = 37.5% share in the plaint schedule property according Hindu Succession.
3.The plaintiff submits that disputes between the plaintiff and her Mother- in-Law [Smt. Gondhesi Achayamma] were adjusted and living with the plaintiff in the plaint schedule property. The plaintiff arrange food, medicines etc., to her Mother-in-Law and maintained her with love and affection. At that juncture the defendants offered to sell their share in the plaint schedule property and the plaintiff agreed to purchase the 1/4th share in the suit schedule for a valuable sale consideration of Rs.3,00,000/- and the plaintiff entered into an agreement of sale with the defendants, in respect of their undivided 1/4th share in the plaint schedule property on 09-09-2015 and the defendants executed the agreement of sale in favour of the plaintiff in respect of aforesaid undivided 1/4th share and the plaintiff paid a sum of Rs.2,80,000/- to the defendants as advance cum part payment by way of cash in the presence of scribe and attestors of the said agreement of sale. The defendants agreed to execute a regular registered sale deed with the expenses of the plaintiff, in respect of their undivided 1/4th share in the suit schedule by receiving the balance sale consideration on or before 31- 12-2015 without any interest on the said balance sale consideration. The defendants further agreed to execute a regular registered sale deed by receiving the said balance sale consideration together with interest @ 18% p.a., on the balance consideration, if the plaintiff pays the said balance sale consideration after due date i.e., 31-12-2015 without any time limit. The aforesaid agreement of sale came into existence with the above said terms and condition. Subsequently, Smt. Gondhesi Achayamma executed a Will dated 22- 10-2015 about her Properties. The said will is the last testament of the testatrix. Subsequently, Smt. Gondhesi Achayamma died on 24-10-2015.
According to the afore said Will, the 37.5% share of Smt. Gondhesi Achayamma devolved upon the plaintiff. As such the plaintiff is having 75% share in the plaint schedule property. As the plaintiff is having particular share in the property, she agreed to purchase the share of the defendants in the suit schedule.
4.The plaintiff contends that since the date of agreement, inspite of repeated oral demands made by the plaintiff and on her behalf, the defendants did not choose to comply with the demands of the plaintiff and giving evasive replies. It is further contended by the plaintiff, since the date of agreement of sale, the plaintiff is ready and willing to pay the balance sale consideration and request the defendants to come forward to execute a regular registered sale deed in respect of their undivided 1/4th share in the plaint schedule property, by receiving the balance sale consideration and inspite of the same the defendants postponed to perform their part of contract on one pretext or the other and in the said circumstances the plaintiff is constrained to file the suit.
5.Therefore, it is prayed by the plaintiff to decree the suit in her favour and against the defendants directing the defendants to execute regular registered sale deed in pursuance of the suit agreement of sale in favour of the plaintiff in respect of undivided 1/4th share of the defendants after receiving balance sale consideration of Rs.20,000/- and in case the defendants fails to do so within the stipulated period granted by this Court, this Court may be pleased to execute the sale deed on behalf of he defendants in favour of the plaintiff in respect of their share in the plaint schedule property at the expenses of the plaintiff according to Law or in alternative pass a decree directing the defendants to return the advance amount of Rs.2,80,000/- together with interest @ 12% p.a., to the plaintiff by creating charge over the share of the defendants in the plaint schedule property.
6.After issuance of summons the defendants 1 and 2 made their appearance through their counsel and filed written statement denying the averments of the plaint except the relationship between the parties to the suit and contended that the suit is not maintainable either under law or on facts and it has to be dismissed.
7.The defendants submits that they never executed the alleged sale agreement dated 09-09-2015 in favour of the plaintiff on receiving the alleged sale consideration of Rs.3,00,000/-. The signature of the 1st defendant and the
Thumb impression of the 2nd defendant on the alleged agreement of sale does not belongs to them. The scribe and attestors are the henchmen of the plaintiff.
The plaintiff, scribe and attestors of the alleged sale agreement colluded together and got fabricated the suit agreement of sale inorder to grab the share of the defendants in the plaint schedule property.
8.The defendants contends that Smt. Gondhesi Achayamma wife of late
Gondhesi Pothana Reddy has not executed the alleged Will dated 22-10-2015 as contended by the plaintiff herein. The plaintiff fabricated the alleged Will with the assistance of scribe and attestors and forged the signature of diseased Smt.
Gondhesi Achayamma. The attestors of the said Will are the henchmen of the plaintiff. The diseased Smt. Gondhesi Achayamma has no cordial relationship with the plaintiff at any point of time and as such there is no possibility or feasibility to execute the alleged Will dated 22-10-2015 by Smt. Gondhesi
Achayamma. The alleged sale agreement dated 09-09-2015 in the name of defendants and the Will in the name of Smt. Gondhesi Achayamma was prepared and fabricated by V.V. Tirumal Rao who is the scribe therein at the instruction of the plaintiff. The thumb impression of 2nd defendant and signature of the 1st defendant on the suit agreement of sale is forged and fabricated.
9.The defendants submits that there is Putta in the schedule property belongs to the defendants and there is a snake hole and snake is moving in the plaint schedule property. The neighbours of the suit schedule are having trust and confidence and praying the snake as god and paying their offerings to the snake.
10.The defendants contends that their father Gondhesi Pothana Reddy died on 01-11-2004 intestate. He got the property by virtue of a Will and his property was devolved into 4 shares. During the life time of Smt. Gondhesi
Achayamma, the defendants and the plaintiff has got each 1/4th share of the
Pothana Reddy.
11.The defendants submits that the plaintiff is wife of diseased Krishna
Reddy and daughter-in-Law of Smt. Gondhesi Achayamma. The plaintiff and
Krishna Reddy has no issues and the said Krishna Reddy died on 23-01-1987.
The said Krishna Reddy’s 1/4th share devolved upon his father Pothana Reddy and mother Smt. Gondhesi Achayamma and his wife i.e., the plaintiff herein.
Thus, Pothana Reddy and Smt. Gondhesi Achayamma and Puspalatha [plaintiff] got 1/3rd in 1/4th share. The Pothana Reddy was expired on 01-11-2004. His 1/3rd share and 1/4th share were devolved upon his wife Smt. Gondhesi
Achayamma and daughter-in-Law i.e., plaintiff herein. Thus, the plaintiff has got the share in the entire property. The defendants have no intention to alienate their respective 1/4th share each in the plaint schedule property to anybody.
The defendants submits that there is no cause of action for the suit and the cause of action averred in the plaint is created for the purpose of filing this suit.
12.Therefore, it is prayed by the defendants 1 and 2 to dismiss the suit with costs.
13.Basing on the above said pleadings of the respective parties to the suit, this Court framed the following issues for trial:
1. Whether the suit agreement of sale dated 09-09-2015 is true, valid and binding on the defendants?
2. Whether the plaintiff is entitled for a decree of specific
performance of agreement of sale against the defendants as
prayed?
3. To what relief?
To substantiate the contentions of the respective parties to the suit, during the course of trial, the plaintiff was examined as P.W.1 and got marked
Exs.A1 to A5 through her. On behalf of the plaintiff P.W.2 and P.W.3 were examined. The defendants 1 and 2 were examined as D.W.1 and D.W.2 respectively and through D.W.1 Exs.B1 to B8 are marked. On behalf of the defendants D.W.3 was examined. After the matter is posted for judgement, the plaintiff filed written arguments in the office of this Court vide G.L.No.581/2017
dated 24-03-2017. The defendants also filed their written arguments in the
office of this Court vide G.L.No.285/2017 dated 13-02-2017.
14.Arguments heard.
15.As the issues 1 and 2 are interrelated to each other, they are answered together.
ISSUES 1 AND 2:
16.This suit is filed by the plaintiff who was examined as P.W.1 against the defendants 1 and 2 who were examined as D.W.1 and D.W.2 respectively for specific performance of agreement of sale. It is clear that the plaintiff is the sister-in-law of the defendants 1 and 2 who is none other than the wife of the brother of the defendants. The plaint schedule property is a residential site in an extent of 96.8 sq.yds in R.S.No.387/23 situated in Kothapet, Vijayawada having R.C.C. building bearing D.No.9-8-19/2 with Assessment No.1765[Old], 21597[New] in ward No.10 of Vijayawada Municipal Corporation area. The aforesaid property is a ancestral property and the Father-in-Law of the plaintiff by name Gondhesi Pothana Reddy got the said property from his ancestors.
The said Gondhesi Pothana Reddy having a wife by name Smt. Gondhesi
Achayamma and they were blessed with 2 daughters i.e., the defendants herein and one son by name Gondhesi Krishna Reddy. The said Krishna Reddy got married the plaintiff herein and he died in a road accident way back on 23-01- 1987 and thereafter the plaintiff herein filed a suit vide O.S.No.429/1987 on the file of Hon’ble I Addl. Senior Civil Judge’s Court, Vijayawada for partition of the plaint schedule property and after elaborate trial a preliminary decree was passed awarding 1/4th share to the plaintiff in the said property. Aggrieved by the said judgement and decree, the father-in -law of the plaintiff by name
Gondhesi Pothana Reddy preferred appeal No.1040/2001 on the file of Hon’ble
High Court of judicature at Hyderabad and while the said appeal is pending the said Pothana Reddy died intestate on 01-11-2004 and nobody has pursued the said appeal and the same was dismissed and the decree and judgement passed in O.S.No.429/1987 on the file of Hon’ble I Addl. Senior Civil Judge’s Court,
Vijayawada has become final. So far the said aspects are concerned it is admitted by both parties and the plaintiff after the death of her husband she is residing alone in the plaint schedule property and she is issue less according to her evidence as P.W.1. While the matter stood thus, it is the contention of
P.W.1 that the defendants who are the sisters-in-law of the plaintiff wanted to sell away their share in the plaint schedule property which is to an extent of 1/4th share for both the defendants and they offered to the plaintiff and accordingly after negotiations the plaintiff has agreed to purchase the said property by the plaintiff for a sale consideration of Rs.3,00,000/- and the plaintiff and defendants entered into an agreement of sale vide Ex.A1 dated 09-09-2015 by paying Rs.2,80,000/- as advance amount and the remaining balance amount of Rs.20,000/- has to be paid on or before 31-12-2015 and obtain regular registered sale deed from the defendants to the extent of their share and in the event the plaintiff is not ready and willing to perform her part of contract, the plaintiff has to pay interest over the remaining balance sale consideration @18% p.a., without any time limit and obtain a regular registered sale deed. It is also contended by P.W.1 that her Mother-in-Law i.e., Smt. Gondhesi
Achayamma executed a unregistered Will regarding her share of property in the plaint schedule on 22-10-2015 vide Ex.A2 bequeathing the same in the name of the plaintiff and the said Will came into force as the testatrix of the said Will died on 24-10-2015 and therefore the plaintiff got 3/4th share in the plaint schedule property and the remaining 1/4th share which devolved upon the defendants herein has been purchased by the plaintiff for a valuable sale consideration under a agreement of sale vide Ex.A1. As can be seen from the evidence placed before this Court by the plaintiff that she has lost her husband way back on 23-01-1987 and since then the plaintiff is at logger heads with the in-laws including the defendants herein. Till the date of death of Mother-in-Law of the plaintiff no litigation has been crept between the parties and all of a sudden, the plaintiff has brought into existence Exs.A1 and A2. This Court does not comment upon the Will vide Ex.A2 styled to be executed by Smt. Gondhesi
Achayamma according to the contention of the plaintiff, as this suit is for limited purpose of specific performance of agreement of sale under Ex.A1. Now it has to be seen whether the agreement of sale vide Ex.A1 is true, valid and binding on the defendants has to be evaluated by the evidence that is placed by respective parties to the suit. The plaintiff and her parents-in-Law are litigating each other since 1987 and after the death of the Father-in-Law of the plaintiff, the plaintiff has waited for an opportunity to grab the plaint schedule property in toto and hatched a plan by creating certain document in her name inorder to deprive the rights of the defendants. A glance of Ex.A1 clearly shows that it has been prepared by fabricating the said document and the executants therein signatures appears that they were adjusted on the said papers inorder to see that the defendants should not claim any share in the plaint schedule property.
The 1st defendant is resident of Vijayawada and 2nd defendant is resident of
Visakhapatnam and the plaintiff according to her is in possession and enjoyment over the plaint schedule property since decades and what made her not to file a scrap of paper inorder to show that she is in exclusive possession and enjoyment over the plaint schedule property since decades is un-answered.
No doubt, prior to filing of this suit, the plaintiff got issued Ex.A3 legal notice calling upon the defendants to perform their part of contract under Ex.A1 agreement of sale by receiving the balance sale consideration and come forward to execute a regular registered sale deed either in the name of the plaintiff or her nominee at the expenses of the plaintiff or her nominee and the 1st defendant received the notice which is evident from Ex.A4 postal acknowledgment and the notice of the 2nd defendant was returned with a postal endorsement as intimation which is evident from Ex.A5. Immediately after the said notice and within a gap of 2 months, the plaintiff filed this suit and since then, the plaintiff is trying hectically to grab the plaint schedule property by showing some document or the other. It is contended by the defendants that the plaintiff got remarried to one Vallepu Lakshmi Prasad after the death of her husband Krishna Reddy which has been denied by the plaintiff. Whatever may be the circumstances, this Court is of least bothered of the Marital Status of the plaintiff as on date and it has to be seen that Ex.A1 is genuine and the defendants have executed the same by receiving the advance sale consideration of Rs.2,80,000/- and the defendants are under obligation to execute a regular registered sale deed regarding their share of property over the suit schedule is the paramount consideration to be decided in this suit. The evidence of P.W.1 shows that she inspite of living else where tried to project
before this Court that she is in possession and enjoyment over the plaint
schedule property and during the last days of her Mother-in-Law, P.W.1 has provided her food, medicines etc., with love and affection and out of the said love and affection the Mother-in-Law of the plaintiff by name Smt. Gondhesi
Achayamma executed Ex.A2 Will bequeathing her share in the plaint schedule property to the plaintiff and the defendants are also come forward to alienate their share in the plaint schedule property to an extent of 1/4th by both the defendants under Ex.A1 is not trust worthy. The plaintiff is working as a lecturer and she knows the intricacies of Law and she while obtaining any deed she has to take all precautionary measures and see that she should not land in any litigation as the plaintiff is fighting out the litigation since 1987 to her legitimate share in the plaint schedule property and could succeed in the Original Suit on 06-04-1995 and thereafter the appeal was preferred by Father-in-Law and the said appeal was dismissed vide A.S.No.1040/2001 due to the death of her
Father-in-Law by the Hon’ble High Court of Hyderabad on 23-11-2011 according to the plaint averments. When there is long spell of litigation between the plaintiff and her in-laws, all of a sudden the defendants has come forward to alienate their share in the plaint schedule property and execute Ex.A1 agreement of sale is not trust worthy. It can be clearly understood from the evidence of P.W.1 that she is vindictive towards defendants and their parents and by hook or crook she wanted to grab the entire schedule property in one way or the other and in the said circumstances the plaintiff hatched a plan by creating Ex.A1 agreement of sale.
17.On behalf of the plaintiff P.W.2 who is the 1st attestor of Ex.A2 Will was examined and his evidence is to the affect that he is running a Jewellery shop under the name and style Sri. Rama Jeweller’s, Sivalayam street, Vijayawada and the testatrix of Ex.A2 Will is customer for him since 25 years and in the said circumstances when the testatrix of Ex.A2 requested him to attest the said will he has readily accepted and it has been executed in his presence. As already commented in the earlier paragraph that this Court does not comment on the
Will styled to be executed by Smt. Gondhesi Achayamma on 22-10-2015 as the ambit of the suit does not cover the same. The plaintiff out of over enthusiasm has tried to project the Will vide Ex.A2 inorder to show before this Court that she got 3/4th right over the plaint schedule property and the remaining 1/4th share which belongs to the defendants has been sold to her vide Ex.A1 agreement of sale. The evidence of P.W.2 does not give much credence to the suit on hand and therefore his evidence need not be taken into consideration.
18.The plaintiff has examined the 1st attestor of Ex.A1 as P.W.3 and he is a distant relative to the plaintiff. It is the contentions of P.W.3 that Ex.A1 has been executed in his presence by the defendants 1 and 2 and during the course of cross-examination of P.W.3 it has been elicited by the defendants that he has not seen his evidence affidavit or gone through the same. The evidence of
P.W.3 is not trust worthy and he was brought before this Court who is the henchmen of the plaintiff to substantiate her case.
19.In contra to the contentions of the plaintiff the defendants 1 and 2 were examined as D.W.1 and D.W.2 and through D.W.1 Exs.B1 to B8 are marked.
The defendants has categorically pleaded and deposed before this Court that they never executed Ex.A1 agreement of sale at any point of time and they never received the alleged part of sale consideration of Rs.2,80,000/- from the plaintiff and never agreed to sell their share for a sale consideration of
Rs.3,00,000/- and the agreement of sale vide Ex.A1 is cooked up document brought into existence by the plaintiff by forging and fabricating the signature and thumb impression of the defendants on the same. The documents that are filed by D.W.1 shows that the original Patta issued by Vijayawada village Munsif vide Ex.B1 and Will executed by Smt. Gondhesi Appayamma who is the grand mother of the father of D.W.1 vide Ex.B2 and the family member certificate of
Gondhesi Pothana Reddy vide Ex.B3 and the endorsement issued by Municipal office, Vijayawada mutated the name of Grand Mother of D.W.1 i.e., Gondhesi
Appayamma in place of Gondhesi Pothana Reddy vide Ex.B4 and the house tax and water tax payment receipts issued by Municipal Corporation Vijayawada in the name of father of D.W.1 vide Ex.B5 and electricity bills vide Ex.B7 for the service connections in the name of father of D.W.1 vide Ex.B7 clearly shows that at no point of time the plaintiff is in possession and enjoyment of the plaint schedule property and the son of D.W.1 by name Mokka Venkatesh is residing along with her grand mother by name Smt. Gondhesi Appayamma and the last rites of Appayamma was performed by son of D.W.1 and the Aadhar Card of the son of D.W.1 by name Mokka Venkatesh is filed vide Ex.AB6 which shows that he is residing in the plaint schedule property. The above said document clearly and clinchingly shows that the plaintiff is creating litigation in one way or the other right from the death of her husband Krishna Reddy and since 3 decades the plaintiff is litigating with her in-laws and this suit is the 2nd round of litigation brought by the plaintiff inorder to grab the plaint schedule property in toto. So far the final decree petition has not been filed by the plaintiff in pursuance of the preliminary decree vide O.S.No.429/1987 on the file of Hon’ble I Addl. Senior
Civil Judge’s Court, Vijayawada. The evidence of D.W.1 and D.W.2 clearly and
clinchingly shows that they never executed Ex.A1 agreement of sale and never received any part of sale consideration as alleged by the plaintiff.
20.On behalf of the defendants D.W.3 was examined and he is none other than the friend of the 2nd son of D.W.1 and he deposed that the plaintiff inorder to grab the schedule property has created this litigation. The evidence of D.W.3 will not have much credence as already stated that the plaintiff herself could not establish her case regarding the execution of Ex.A1 by the defendants.
21.The defendants has filed the Election Identity Card of the plaintiff and inorder to mark the same P.W.1 has been recalled and confronted to her and she denied the said Election Identity card belongs to her. A glance of the said card shows that the photograph and the name of the plaintiff and her husband name is mentioned as Lakshmi Prasad Vallepu and she is residing in D.No.26-2- 20A, Andhra Ratna Road, Gandhi Nagar, Vijayawada urban and the said Election
Identity Card was issued on 29-12-2016. As the said Card has not been marked
before this Court this Court does not comment upon the same and basing upon
the available evidence the issues which were framed can be answered.
22.After commencement of trial, the defendants filed I.A.213/2016 to receive
additional written statement along with certain photographs and the contents of
the said petition are as follows:-
23.This petition is filed by the defendants herein under Order XVII Rule 1 read with Section 151 C.P.C to receive Additional written statement for which the plaintiff has reported no objection.
24.A glance of the additional written statement appended to the aforesaid petition clearly shows that the defendants after commencement of trial has come forward to fill up the lacunas on their side and again they are trying to reiterate certain facts which are already brought on record and the legal possession regarding class 1 heirs are mentioned in the additional written statement. The contents of the additional written statement filed by the defendants herein is well within their knowledge since beginning of this litigation and they failed to mention the same at the earliest point of time in their written statement and now coming forward with this petition is nothing but to procrastinate the mater on one pretext or the other by the defendants inorder to create hurdles to dispose of the matter. The defendants cannot be permitted to file additional written statement at the fag end of the trial and what all they stated in their additional written statement is nothing but repetition and certain new facts are to be brought on record. Therefore, the contents of the additional written statement even though they got knowledge of the same at the earliest point of time,they have not mentioned in their written statement and now they cannot be entertained.
25.Taking into consideration the overall circumstances of the petition, this
Court is of considered opinion that the defendants inorder to bring some more facts before this Court as an after thought filed this petition which cannot be entertained and the same is liable to be dismissed as already adduced evidence is suffice to decide the issues framed.
26.The defendants has also filed another petition vide I.A.No.409/2016 under
Section 45 of Indian Evidence Act to send the agreement of sale dated 09-09- 2015 vide Ex.A1 for expert examination to compare the admitted signatures of the defendants that are available before this Court on Vakalatnama, Written
Statement, evidence affidavits, suit summons for giving his opinion.
27.The plaintiff filed counter denying the averments of the petitioner’s affidavit and the said petition is filed only to procrastinate the matter with all false and frivolous allegations and further contended that she got no objection to allow the petition and pass necessary orders.
28.Taking into consideration the overall contentions of the respective parties to the petition it is obligatory on the part of the plaintiff to prove that Ex.A1 is true, valid and binding on the defendants and the burden heavily rests upon the plaintiff and instead of discharging her burden, the defendants came forward to send the suit document vide Ex.A1 for expert examination to compare the same with that of the admitted signatures and thumb impressions of the defendants shows the genuinity of the defendants. The 1st defendant is a signatory and the 2nd defendant is a marks women and the defendants inorder to show their bonafides has come forward and this petition has to be filed by the plaintiff to prove the agreement of sale vide Ex.A1 is genuine. In any view of the matter the defendants has come forward with the aforesaid petition and the plaintiff has also reported no objection to send the suit document for expert examination.
29.Taking into consideration the overall circumstances of the petition the evidence that is already let in by the respective parties to the suit is suffice to answer the issues framed and the defendants has come up with this application only to procrastinate the matter and the petition cannot be entertained as the genuinity or otherwise Ex.A1 can be culled out by the evidence that is available
before this Court and therefore the petition is liable to be dismissed.
30.Taking into consideration the overall pleadings and the evidence let in by the respective parties to the suit, the plaintiff miserable failed to project and prove that the agreement of sale vide Ex.A1 is true, valid and binding on the defendants and the own evidence of P.W.1 falsifies her case and the plaintiff inorder to grab the plaint schedule property to the extent of share of the defendants has cooked up Ex.A1 and there is no transaction took place between the plaintiff and the defendants at any point of time and question of passing of part of sale consideration under Ex.A1 has not been proved and this suit is filed for her selfish ends. As can be seen from the evidence coupled with the pleadings of the respective parties, the plaintiff has severed connections with the family of her in-Laws after death of her husband Krishna Reddy and fighting out the litigation for the property of the joint family pertaining to her in-Laws since 1987 and this litigation is the continuation of earlier litigation which was filed by plaintiff regarding the suit for partition vide O.S.No.429/1987 on the file of Hon’ble I Addl. Senior Civil Judge’s Court, Vijayawada. As already the plaintiff got preliminary decree in the aforesaid suit there is no dispute regarding the 1/4th share of the plaintiff in the suit schedule. So far the 1/4th share of the defendants in the suit schedule the plaintiff hatched a plan and cooked up Ex.A1 which is not trust worthy and this is a vexatious litigation brought by the plaintiff inorder to pin down the defendants to her terms under the guise of this litigation which cannot be entertained under any circumstances and the suit is liable to be dismissed regarding main relief i.e., specific performance of agreement of sale and the alternative relief for return of alleged payment of advance payment made by plaintiff to defendants.
31.In the light of above discussion I answered these issues against the plaintiff.
ISSUE NO.3:
32.In view of answering issues 1 and 2 against the plaintiff, the suit is liable to be dismissed.
33.In the result, suit is dismissed with costs.
Dictated to the Stenographer Gr.III, transcribed by him, corrected and
pronounced by me, in the open Court, on this the 28th day of March, 2017.
Sd/- T.V.S.S. PRAKASH,
III Additional Junior Civil Judge, FAC/ I Addl. Junior Civil Judge, Vijayawada.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF
Plaintiff:
P.W.1: Smt.Gondhesi Pushpalatha.[Plaintiff.] P.W.2: Chaluvadi Leela Nagendra Venkata Narayana Rao. P.W.3: Kolli Sudhakara Reddy.
Defendants: D.W.1: Smt. Mokka Naga Durgamaba.[Defendant No.1] D.W.2: Smt. Puthi Satyavathi.[Defendant No.2] D.W.3: Chandolu Raghavendra Rao. D.W.4: Rampilli Naga Raju.
DOCUMENTS MARKED ON BEHALF OF
Plaintiff:-
Ex.A109.09.2015Original Agreement of Sale executed by the defendants in favour of the plaintiff pertaining to the plaint schedule property.
Ex.A222.10.2015Original Unregistered Will executed by the Gondhesi Achayamma in favour of plaintiff regarding the plaint schedule property.
Ex.A317.11.2015Office copy of the legal notice got issued on behalf of the plaintiff to the defendants.
Ex.A421.11.2015Postal Acknowledgement of 1st defendant for Ex.A3.
Ex.A524.11.2015Returned postal cover of the 2nd defendant with postal endorsement as “intimation” pertaining to Ex.A3 notice.
Defendants:
Ex.B128.12.1948Original Patta issued by Vijayawada Village Munasif for an extent of 1187/9 sq.yds.
Ex.B205.02.1950Will executed by Gondhesi Appayamma, W/o.Pothana Reddy i.e. Grandmother of Defendants. Ex.B322.08.2005Family member certificate issued by MRO, Vijayawada Urban pertaining to the family of G.Pothana Reddy.
Ex.B424.05.1979Endorsement issued by Municipal Office, Vijayawada transferring the assessment No.1764 from the name of G.P.Reddy to Smt. G. Appayamma.
Ex.B503.09.2016Two house tax and water tax payment receipts issued by Mee Seva on behalf of Municipal Corporation, Vijayawada in the name of G.Pothana Reddy.
Ex.B616.12.2012Aadhar Card issued in the name of Mokka Venkatesh who is the son of 1st defendant by the concerned authorities.
Ex.B712.09.2016Two electricity bills issued in the name of G.Pothana Reddy for service connection Nos.6435207256628 and 6435207007679.
Ex.B824.12.1945House tax receipt issued in the name of Smt.G.Appayamma by Village Munasif.
Sd/- T.V.S.S. PRAKASH,
III Additional Junior Civil Judge, FAC/ I Addl. Junior Civil Judge, Vijayawada.