Sri U.Satya Rao
I Addl.District Judge
Prl. District and Sessions Court, Srikakulam · Srikakulam · Andhra Pradesh
Based on 15 recent ordersSri U.Satya Rao, I Addl.District Judge, is posted at Prl. District and Sessions Court, Srikakulam, Srikakulam, Andhra Pradesh, India. 15 court orders on record since 2019. 5 judgments with full text available. Primarily handles SC, MVOP, EP cases.
Featured Judgments
IN THE COURT OF 1ST ADDITIONAL DISTRICT JUDGE, SRIKAKULAM.
PRESENT: SRI U. SATYA RAO, 1ST ADDL. DISTRICT JUDGE,
SRIKAKULAM.
TUESDAY, THIS THE 12th DAY OF FEBRUARY, 2019
A.S. No. 12/2014 & A.S.No.7/2015
A.S. No.12/2014
Between:
Kannepalli Chandra Sekhar Rao, S/o Mahadevula Bhuktha, Hindu, Aged 52 years, Accountant, Chandra Fabricators, Door No.249-BH Colony, Peddagantyada, Visakhapatnam. Appellant/Plaintiff And:
1.Gunda Papayya, S/o late Narayana, Hindu, Aged 53 years, Resident of Door No. 0-1-15, Susaram village, Polaki Mandal, Srikakulam District.
2.Kannepalli Krishna Murty Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 64 years, Retired Employee, residing at Door No.9-4-98, Old Bridge Road, Srikakulam.
3.Kannepalli Viswanadha Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 59 years, Incharge Principal Sarada Engineering College, Ampolu village and post, Srikakulam rural mandal and district.
4.Kannepalli Kumara Swamy, S/o late Mahadevula Bhuktha, Hindu, Aged 66 years, Rtd. employee, resident of Flat No.10, Vijaya Apartments, Door No.49-24-53/10, near Sankaramatham, Madhuranagar, Visakhapatnam (DIED)
5.Kannepalli Subbalakshmi, W/o Appalanarasimha Buktha, Hindu Aged 55 years, Household duties, R/at 112-C, Sector II, Ukkunagaram, Visakhapatnam.
6.Kannepalli Sudharao, W/o Bala Bhaskara Rao, Hindu, Household duties, Resident of 301-AO Wing, Balaji Apartments, Poojanagar, Cabin Road, Bhejandar (East), Thane District, Bombay-40
7.Kannepalli Kameswara Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 68 years, Land Lord, Residing Door No.15-16, Priyagraharam village and post, Polaki Mandalam, Srikakulam district.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
8.K. Varalaxmi, W/o Kannepalli Kumara Swamy, Hindu, Aged 64 years, resident of Flat No.10, Vijaya Apartments, Door No.49-24- 53/10, near Sankaramatham, Madhuranagar, Visakhapatnam.
9.K. Krishna Kishore, S/o Kannepalli Kumara Swamy, Hindu, Aged 33 years, resident of Flat No.10, Vijaya Apartments, Door No.49- 24-53/10, near Sankaramatham, Madhuranagar, Visakhapatnam.
The respondents 8 and 9 are added as legal representatives of the deceased 4th respondent, as per orders in IA No.24/2015, dated 12,.06.2015. Respondents/defendants.
Appeal filed against the Decree and Judgment made in OS
No. 255/2007 dated 27.11.2013 on the file of the Court of
Principal Senior Civil Judge, Srikakulam.
Between:
Kannepalli Chandra Sekhar Rao Plaintiff. And:
1.Gunda Papayya
2.Kannepalli Krishna Murty Bhuktha
3.Kannepalli Viswanadha Bhkitha
4.Kannepalli Kumara Swamy (DIED)
5.Kannepalli Sudha Rao
6.Kannepalli Chandra sekhara Rao
7.Kannepalli IKameswara Bhuktha Defendants.
A.S.No.7/2015
Between:
Kannepalli Subbalakshmi, W/o Appalanarasimha Bhuktha, Hindu, Aged 55 years, Household duties, Residing at 112-C, Sector II, Ukkunagaram, Visakhapatnam.
Appellant/Plaintiff.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
And:
1.Gunda Papayya, S/o late Narayana, Hindu, Aged 53 years, Resident of Door No. 0-1-15, Susaram village, Polaki Mandal, Srikakulam District.
2.Kannepalli Krishna Murty Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 64 years, Retired Employee, residing at Door No.9-4-98, Old Bridge Road, Srikakulam.
3.Kannepalli Viswanadha Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 59 years, Incharge Principal Sarada Engineering College, Ampolu village and post, Srikakulam rural mandal and district.
4.Kannepalli Kumara Swamy, S/o late Mahadevula Bhuktha, Hindu, Aged 66 years, Rtd. employee, resident of Flat No.10, Vijaya Apartments, Door No.49-24-53/10, near Sankaramatham, Madhuranagar, Visakhapatnam (DIED)
5.Kannepalli Sudha Rao, W/o Bala Bhaskara Rao, Hindu, Household duties, Resident of 301-AO Wing, Balaji Apartments, Poojanagar, Cabin Road, Bhejandar (East), Thane District, Bombay-40
6.Kannepalli Chandra Sekhara Rao, S/o Mahadevula Bhuktha, Hindu, Aged 52 years, Accountant,Chandra Fabricators, Door No.249-BH Colony, Peddagantyada, Visakhapatnam.
7.Kannepalli Kameswara Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 68 years, Land Lord, Residing Door No.15-16, Priyagraharam village and post, Polaki Mandalam, Srikakulam district.
8.K. Varalaxmi, W/o late Kumara Swamy, Hindu, Aged 64 years, resident of Flat No.10, Vijaya Apartments, Door No.49-24-53/10, near Sankaramatham, Madhuranagar, Visakhapatnam.
9.K. Krishna Kishore, S/o late Kumara Swamy, Hindu, Aged 33 years, resident of Flat No.10, Vijaya Apartments, Door No.49-24- 53/10, near Sankaramatham, Madhuranagar, Visakhapatnam.
The respondents 8 and 9 are added as legal representatives of the deceased 4th respondent, as per orders in IA No.1299/2015, dated 22.03.2016. Respondents/defendants …4…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
Appeal filed against the Decree and Judgment made in OS
No. 256/2007 dated 27.11.2013 on the file of the Court of
Principal Senior Civil Judge, Srikakulam.
Between:
Kannepalli Subbalakshmi Plaintiff.
And:
1.Gunda Papayya
2.Kannepalli Krishna Murty Bhuktha
3.Kannepalli Viswanadha Bhkitha
4.Kannepalli Kumara Swamy (DIED)
5.Kannepalli Sudha Rao
6.Kannepalli Chandra sekhara Rao
7.Kannepalli Kameswara Bhuktha Defendants.
Both these appeals coming on 29.01.2019 for final hearing
before me in the presence of Sri P.V.S.Seetharamayya, learned
Advocate for the appellant in both the appeals and of Sri Palli Rama Rao, learned Advocate for the 1st respondent and Sri K. Suresh, learned Advocate for Respondents No.8 and 9, and the Respondents No.2, 3 and 5 to 7 remained ex parte in both the appeals and having heard both sides and stood over till this day for consideration, this court made the following:
COMMON JUDGMENT
01. A.S. No.12/2014
This is an appeal preferred by the unsuccessful plaintiff assailing the decree and judgment dated 27.11.2013 in OS No.
255/2007 passed by the Principal Senior Civil Judge, Srikakulam.
02. The present appeal stems from the common judgment passed by the Principal Senior Civil Judge, Srikakulam in OS
No.255/2007 and OS 256/2007.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
03. The parties are arrayed as depicted in the suit for the sake of convenience.
04. The suit was filed for declaration of title of the plaintiff regarding the extent of Ac.2.03 cents out of the suit schedule property i.e. his 1/8th share and for partition and separate possession of the said extent from the suit property.
05. The provenance of the case facts is, the plaintiff, defendants 2 to 4, husband of the 5th defendant and the defendants 6 and 7 are the consanguine brothers and sons of late Mahadevula
Bhuktha. The properties were divided among Mahadevula Bhuktha and his 7 sons way back in the year 1969 and partition list was prepared on 26.05.1969. The properties were divided into 8 lots shown as "ABCDEFG and H" and the lands were not physically divided since they were under the cultivation of tenants by then.
06. While so, Mahadevula Bhuktha died in the year 1974. 7th defendant herein filed suit for partition and separate possession of his share and it was numbered as OS 31/1993 on the file of Principal
Senior Civil Judge, Srikakulam. The suit was preliminary decreed on
28.12.1998. The plaintiff was allotted Ac.2.03 cents of land in Survey
No. 238 of Dandu Lakshmipuram village of Polaki mandal out of
Ac.16.24 cents and it was not divided by metes and bounds.
07 The 1st defendant obtained an agreement of sale in respect of Ac.10.00 of land in Survey No.238 of Dandu Lakshmipuram village said to have been executed by the 2nd defendant where under the 2nd …6…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 defendant agreed to sell the land for consideration of Rs.65,000/- and received earnest money of Rs.30,000/-. It was a collusive transaction and it is not binding on the plaintiff and other co-sharers. It appears a suit was filed and it was numbered as OS No.158/1996 by the 1st defendant for specific performance of agreement of sale mentioned above. The learned Additional Senior Civil Judge, Srikakulam passed the decree in the suit in favour of 1st defendant and against the 2nd defendant. 1st defendant has been making efforts to execute the decree. The said decree is not binding on the plaintiff regarding her share of land extending Ac.2.03 cents situated in the aforementioned survey number.
08. While so, the 1st defendant filed E.P.20/2011 and EA
No.160/2011 for execution of the sale deed against the 2nd defendant and it was pending enquiry. If it is allowed, the 2nd defendant would execute the sale deed in which event the matter would lead to unnecessary and unavoidable expenses and litigations. The 2nd defendant is not competent to execute such sale deed regarding the share of the plaintiff.
09. The property was not divided by metes and bounds in the year 1969 and thus the present suit for partition and separate possession of the plaintiff's share of Ac.2.03 cents out of Ac.16.24 cents. Hence, the suit.
10. 1st defendant filed written statement admitting the consanguine relationship as averred in the plaint and denying all the material averments of the plaint. The joint family properties were …7…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 partitioned way back in the year 1969 and ever since each sharer has been enjoying his separate share and some properties remained undivided to discharge some of the family debts and to perform the marriage of the female members of the family. The suit in OS No.
31/1993 was filed on the file of Principal Senior Civil Judge,
Srikakulam for partition of those undivided properties and for other reliefs and the plaintiff is one of the parties to the suit and thus the decree and judgment in OS No.31/1993 is binding on the plaintiff.
11. The plaintiff's contention that OS No.31/1993 was filed by the 7th defendant herein for partition of his father's share, is not correct. The plea of the plaintiff that she was allotted Ac.2.03 cents out of total Ac.16.24 cents in Survey No.238 of Dandu Lakshmipuram village and it was not specifically delivered, is false.
12. The 2nd defendant's brother executed general power of attorney vide Document No. 3/1974, dated 7.3.1974 at Sub Registrar
Office, Narasannapeta in favour of the 2nd defendant and basing on the said general power of attorney, the 2nd defendant executed sale agreement and registered the sale deed in favour of 1st defendant and others. 2nd defendant intentionally suppressed the said fact in the agreement executed in favour of the 1st defendant. All the brothers of the 2nd defendant knew about the said fact and falsely filed the suits against the 1st defendant and to harass him.
13. The decree was passed in favour of 1st defendant in OS No.
158/1996 i.e., suit filed for specific performance of agreement of sale dt.30.05.1993 executed by the 2nd defendant herein for extent of …8…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
Ac.11.96 cents in Survey No. 238 of Dandu Lakshmipuram village. He filed E.P.20/2001 and EA No.160/2001 in pursuance of the decree passed in OS No.158/1996.
14. The 1st defendant cultivated the suit land as a tenant prior to the execution of the agreement of sale by the 2nd defendant and used to pay the lease premium to the 2nd defendant.
15. The frame of the suit for partition and for declaration of title of the plaintiff is bad. The plaintiff cannot seek partition of the plaint schedule property since partition was done on 25.06.1969. The suit for partition of a bit of land i.e., the suit schedule land, is not maintainable. The court fee paid is incorrect and the suit is bad for non-joinder of necessary parties.
16. The rest of the defendants remained ex parte.
17. On the strength of the aforementioned pleadings, the following issues were settled for trial:
1.Whether the plaintiff is entitled to declaration of title over 1/8th share of suit schedule property?
2.Whether the plaintiff is entitled to partition and separate possession of said property?
3.To what relief?
18. AS 7/2005:
This is an appeal preferred by the unsuccessful plaintiff assailing the decree and judgment dated 27.11.2013 in OS No.
256/2007 passed by the Principal Senior Civil Judge, Srikakulam.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
19. The present appeal stems from the common judgment passed by the Principal Senior Civil Judge, Srikakulam in OS
No.255/2007 and OS 256/2007.
20. The suit was filed for declaration of title of the plaintiff regarding the extent of Ac.2.03 cents out of the suit schedule property i.e. her 1/8th share and for partition and separate possession of the said extent from the suit property.
21. The provenance of the case facts is, in OS No.255/2007, the plaintiff's husband, the defendants 2 to 4, 5th defendant's husband and the defendants 6 and 7 are the consanguine brothers and sons of late Mahadevula Bhuktha. The properties were partitioned in the year 1969 among Mahadevula Bhuktha and his 7 sons and in that context partition deed was prepared on 26.05.1969. All the landed properties were divided into 8 lots shown as "ABCDEFG and H" and they were not physically divided since most of the lands were in the cultivation of the tenants by then. Whileso, Mahadevula Bhuktha died in the year 1974. 7th defendant filed a suit for partition and possession of his share and it was numbered as OS No. 31/1993 on the file of Principal Senior Civil Judge, Srikakulam and it was preliminary decreed on 28.12.1998. The plaintiff herein was allotted an extent of Ac.02.03 cents in Survey No. 238 (Old Survey No.1046) in
Dandu Lakshmipuram village of Polaki mandal out of total extent of
Ac.16.24 cents and it was not divided by metes and bounds.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
22. The 1st defendant obtained an agreement of sale in respect of Ac.10.00 of land in Survey No.238 of Dandu Lakshmipuram village said to have been executed by the 2nd defendant where under the 2nd defendant agreed to sell the land for consideration of Rs.65,000/- and received earnest money of Rs.30,000/-. It was a collusive transaction and it is not binding on the plaintiff and other co-sharers. It appears a suit was filed and it was numbered as OS No.158/1996 by the 1st defendant for specific performance of agreement of sale mentioned above. The learned Additional Senior Civil Judge, Srikakulam passed the decree in the suit in favourof 1st defendant and against the 2nd defendant. 1st defendant has been making efforts to execute the decree. The said decree isnot binding on the plaintiff regarding her share of land extending Ac.2.03 cents situated in the aforementioned survey number.
23. While so, the 1st defendant filed E.P.20/2011 and EA
No.160/2011 for execution of the sale deed against the 2nd defendant and it was pending enquiry. If it is allowed, the 2nd defendant would execute the sale deed in which even the matter would lead to unnecessary and unavoidable expenses and litigations. The 2nd defendant is not competent to execute such sale deed regarding the share of the plaintiff.
24. The property was not divided by metes and bounds in the year 1969 and thus the present suit for partition and separate possession of the plaintiff's share of Ac.2.03 cents out of Ac.16.24 cents. Hence, the suit.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
25. 1st defendant filed written statement admitting the consanguine relationship as averred in the plaint and denying all the material averments of the plaint. The joint family properties were partitioned way back in the year 1969 and ever since each sharer has been enjoying his separate share and some properties remained undivided to discharge some of the family debts and to perform the marriage of the female members of the family. The suit in OS No.
31/1993 was filed on the file of Principal Senior Civil Judge,
Srikakulam for partition of those undivided properties and for other reliefs and the plaintiff is one of the parties to the suit and thus the decree and judgment in OS No.31/1993 isbinding on the plaintiff.
26. The plaintiff's contention that OS No.31/1993 was filed by the 7th defendant herein for partition of his father's share, is not correct. The plea of the plaintiff she was allotted Ac.2.03 cents out of total Ac.16.24 cents in Survey No.238 of Dandu Lakshmipuram village and it was not specifically delivered, is false.
27. The 2nd defendant's brothers executed general power of attorney vide Document No. 3/1974, dated 7.3.1974 at Sub Registrar
Office, Narasannapeta in favour of the 2nd defendant and basing on the said general power of attorney, the 2nd defendant executed sale agreement and registered the sale deed in favour of 1st defendant and others. 2nd defendant intentionally suppressed the said fact in the agreement executed in favour of the 1st defendant. All the brothers of the 2nd defendant knew about the said fact and falsely filed the suits against the 1st defendant and to harass him.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
28. The decree was passed in favour of 1st defendant in OS No.
158/1996 i.e., suit filed for specific performance of agreement of sale dt.30.05.1993 executed by the 2nd defendant herein for extent of
Ac.11.96 cents in Survey No. 238 of Dandu Lakshmipuram village. He filed E.P.20/2001 and EA No.160/2001 in pursuance of the decree passed in OS No.158/1996.
29. The 1st defendant cultivated the suit land as a tenant prior to the execution of the agreement of sale by the 2nd defendant and used to pay the lease premium to the 2nd defendant.
30. The frame of the suit for partition and for declaration of title of the plaintiff is bad. The plaintiff cannot seek partition of the plaint schedule property since partition was done on 25.06.1969. The suit for partition of a bit of land i.e., the suit schedule land, is not maintainable. The court fee paid is incorrect and the suit is bad for non-joinder of necessary parties.
31. The rest of the defendants remained ex parte.
32. On the strength of the aforementioned pleadings, the following issues were settled for trial:
1.Whether there was an earlier partition in between the husband of the plaintiff, the defendants and their brothers as contended?
2.Whether the registered general power of attorney executed in favour of the 2nd defendant in respect of the schedule property is true and correct and binding on the plaintiff?
3.Whether the decree is passed in OS No. 158/1996 on the file of this court is binding on the plaintiff?
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
4.Whether the plaintiff is entitled for declaration as prayed for?
5.Whether the plaintiff is entitled to partition of the schedule property and for separate possession as contended?
6.To what relief?
33. As seen from the material available on record, a memo was filed by the parties to both the suits mentioned above and common evidence was let in both the suits.
34. The plaintiffs in OS No.255/2007 and 256/2007 are examined as PW.1 and PW.2 respectively. Exs.A.1 to A.5 were exhibited on behalf of the plaintiffs. The general power of attorney was exhibited as Ex.X.1. The son of 1st defendant and one
T.Jagannadham were examined as D.W.1 and D.W.2 respectively and
Exs.B.1 to B.3 were marked on behalf of the 1st defendant?
35. Given the evidence let in by the parties to the suits, the lower court dismissed the suits against which the present appeals were preferred by the unsuccessful plaintiffs in OS No.255/2007 and
OS No.256/2007.
36. As seen from the appeal grounds of both the appeals, the lower court ought to have decreed the suit for declaration of title of the plaintiffs for an extent of Ac.2.03 cents each, the lower court ought to have observed that the decree in OS 158/1996 is not binding on them, the lower court ought to have seen that the 1st defendant preferred the appeal challenging the decree and judgment passed in OS 86/2001 and it is an impediment for the 1st defendant to establish his claim.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
37. Given the appeal grounds and contentions of the parties to the appeals, the points for determination are:
1.Whether the plaintiffs are entitled for declaration of their title as prayed for?
2.Whether the plaintiffs are entitled for partition and separate possession as prayed for?
3.Whether the brothers of the 2nd defendant executed general power of attorney in favour of the 2nd defendant relating to the suit property and if so whether it is binding on the plaintiffs?
4.Whether the decree passed in OS No.158/1996 in favour of the 1st defendant is binding on the plaintiffs?
5.Whether the decree suffered by the 1st defendant in
OS 86/2001 is a ground to decree the suit filed by the
plaintiffs and to reject the plea of the 1st defendant?
6.Whether the judgment of the lower court needs any interference?
38. The admitted facts are the plaintiff in OS 255/2007, plaintiff's husband in OS No.256/2007, defendants 2 to 4 and the defendants 6 and 7 in OS No. 255/2007 are consanguine brothers and children of Mahadevula Bhuktha, the family properties were partitioned way back in the year 1969, OS No.31/1993 was filed by one of the co-sharers on the file of Principal Senior Civil Judge,
Srikakulam for partition of undivided properties which was kept joint and that suit was decreed. The disputed facts are the properties which were partitioned in the year 1969 were not physically divided since they were in possession of tenants. The 2nd defendant executed an agreement of sale in favour of the 1st defendant and the other brothers of the 2nd defendant executed general power of attorney in …15…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 favour of the 2nd defendant and thus the agreement of sale said to have been executed by the 2nd defendant in favour of the 1st defendant is binding on the plaintiffs in both the suits.
39. Since points 1 to 3 are inter related, I earnestly feel it is propitious to decide the points 1 to 3.
40. POINTS No.1 to 3:
To shore up their contention, the plaintiffs in OS
No.255/2007 and 256/2007 examined themselves as PW.1 and PW.2 respectively. They filed affidavits in lieu of examination in chief affirming all the material averments of the plaint. PW.1 is the plaintiff in OS No.255/2007 and he asserted in the affidavit in lieu of examination in chief that the properties were divided among his father and sons including himself in 1969 and in that context a partition list was prepared on 26.5.1969 and it was signed by all of them. Since brothers have been residing at different and distant places, the lands were in the cultivation of the tenants and each sharer has been collecting his share from the tenants. The 7th defendant filed a suit in
OS 31/1993 for partition consequent to the death of his father in 1974
and for separate possession of his share in the properties of
Mahadevula Bhuktha i.e. his father on the file of Principal Senior Civil
Judge, Srikakulam and the said suit was preliminary decreed on
28.12.1998. He owns an extent of Ac.2.03 cents in Survey No.238 of
Dandu Lakshmipuram village out of total extent of Ac.16.24 cents.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
41. It was elicited in the cross-examination, he could know that 1st defendant filed suit in OS No. 158/1996 on the file of Additional
Senior Civil Judge, Srikakulam against the 2nd defendant for specific
performance of agreement of sale executed by the 2nd defendant in respect of plaint schedule property herein and obtained decree for an extent of Ac.10.00 of land. He did not know whether it was observed in the Judgment in OS 158/1996 in Para - 10 that the 2nd defendant herein represented the entire suit property as his exclusive property and it was in his possession. He did not remember whether he filed the documents evidencing partition in the present suit. The plaintiff in OS
No.256/2007, Appalanarasimha Buktha, Kumara Swamy, Bala
Bhaskara Rao and himself executed general power of attorney in favour of the 2nd defendant regarding the property fallen to their respective shares. It was recited in the general power of attorney dated 07.03.1974 that all the properties are in joint possession and enjoyment and the said general power of attorney is in force as on today. The 1st defendant has been in possession and enjoyment of the suit property. 2nd defendant herein looked after the court matters in
OS No. 86/2001 and OS No.256/2007 and he is resident of the
locality. This is the kernel of the cross-examination.
42. PW.2 filed affidavit in lieu of examination in chief affirming all the material averments of the plaint. It was elicited in the cross- examination that the 2nd defendant was assisting her in giving instructions to his counsel. She signed in the plaint on the instructions given by the 2nd defendant herein. She did not know the …17…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 averments of the plaint. The 2nd defendant brought the plaint and she subscribed her signature therein. The 2nd defendant has been dealing with her property situated in Srikakulam district. The 2nd defendant sold the said property to the 1st defendant. She knew that the 1st defendant filed a suit against the 2nd defendant. The 2nd defendant has been managing her family properties, he has been collecting rents from the tenants and he has been distributing the respective shares collected by him to the co-sharers. The lands situated in Dandu
Lakshmipuram and Priya Agraharam villages are being managed by the 2nd defendant hitherto and they are joint family properties. She admitted that the 2nd defendant executed an agreement of sale relating to the suit property in favour of the 1st defendant in the year 1993. This is the nub of the cross-examination.
43. As seen from the afore mentioned facts elicited in the cross- examination of PW.1 and PW.2, it is discernible that all the consanguine brothers of the 2nd defendant gave general power of attorney to the 2nd defendant relating to the suit property. It was exhibited as Ex.X.1. As seen from the recitals mentioned therein, it is evident that they have given power to manage and to sell the property.
This material fact was not disclosed in the plant by PW.1 and PW.2.
The learned Advocate for the respondents adroitly argued considering for arguments sake that they were not aware of the sale agreement said to have been executed by the 2nd defendant in favour of the 1st defendant, they are estopped from contending that it is not binding on them since the 2nd defendant sold away the said property by …18…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 projecting himself as ostensible owner. I find substance in the contention of 1st defendant since 2nd defendant by virtue of general power of attorney executed by the remaining co-sharers has got right to sell away the property under the agreement of sale and he knew about his right and title over the property on the date he entered into agreement with the 1st defendant. He is, therefore, estopped from reneging on the ground that his brothers did not give consent subsequently. As seen from the copy of judgment and discussion made in OS No.158/1996 filed by the 1st defendant for specific performance against the 2nd defendant herein, it was discussed in
Para-9 by highlighting the material aspects elicited in the examination of the 2nd defendant herein examined as D.W.1 therein. As seen from the said discussion in Paras 9 and 10 that he executed an agreement of sale on behalf of his brothers who have been residing in different places and he could not execute the said deed since his brothers withdrew their consent. But as seen from the evidence of PW.1 who is one of the brothers and who executed the general power of attorney in favour of the 2nd defendant and so also the evidence of PW.2 who is the wife of one of the brothers of the 2nd defendant, the power of general attorney is still in force and it was not revoked. It is, therefore, manifest that the brothers of D.W.2 never revoked the power of attorney and there is no material whatsoever to show that they withdrew the consent subsequently as stated in the evidence of D.W.1 i.e., 2nd defendant herein.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
44. Since PW.1 and PW.2 unequivocally admitted about the giving power of attorney i.e., Ex.X.1 to the 2nd defendant and in view of the admissions made by PW.2 that she subscribed her signatures in the plaint and the plaint was drafted on the information given by the 2nd defendant, I hold that the suit is a collusive one and it vindicates the 1st defendant's contention that the plaintiffs herein and the 2nd defendant are hand in glove. All these aspects were discussed at length in the judgment in OS 158/1996 and I, therefore, hold that the plaintiffs herein are estopped to contend that they were not aware of the agreement executed by the 2nd defendant and the 2nd defendant is not competent nor authorized to sell away the rest of the lands belonging to them under the said agreement. The very factum that they never made any endeavour hitherto to get Ex.X.1 general power of attorney revoked and still it is the 2nd defendant who has been managing the properties graphically makes it clear that they never come in the way of the 2nd defendant to deal with the property belonging to them as he likes. It is discernible in the sale deed executed by the 2nd defendant on behalf of his brothers and exhibited as Ex.B.1 and Ex.B.2. As seen from Exs.B.1 and B.2 sale deeds, the 2nd defendant executed the sale deed by selling away the properties belonging to his brothers and himself by virtue of the general power of attorney in his favour. This is another weighing circumstance improbablizing the plaintiffs' contention that they were not aware of the sale agreement said to have been executed by the 2nd defendant in favour of the 1st defendant.
…20…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
45. As seen from the pleadings of the plaint and the evidence of
PW.1 and PW.2, it is evident that there was partition of large chunk of property way back in the year 1969 and during the life time of
Mahadevula Bhuktha and the partition list was prepared. Some of the properties were kept joint to perform the marriages of unmarried daughters and consequent to the death of Mahadevula Bhuktha in 1974, one of the sons filed a suit i.e., OS 31/1993 for partition and it was preliminary decreed in part. But the plaintiffs herein did not file final decree petition nor they made any endeavour to get their respective shares engrossed in order to obtain physical delivery of their respective shares of properties allotted to them. Conversely, the plaintiffs herein filed present suits for partition of the properties again and for declaration of their title. It cannot be lost sight and the 1st defendant never challenged their title to the property and also the alleged partition way back in the year 1969. Per contra, he has been relying on the said partition. As seen from the judgment and decree exhibited as Exx.A.1 and A.2 passed in OS No.31/1993, the undivided joint family property which was left for marriages of the unmarried daughters of Mahadevula Bhukthawas partitioned and preliminary decree was passed. But the plaintiffs herein who filed the suits never pursued the matter after the preliminary decree for partition of the properties was passed. By virtue of the partition list way back in the year 1969 and also the preliminary decree for partition of the properties passed in 1998 in OS No. 31/1993, the partition of the properties becomes absolute and there remained nothing to partition …21…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 the properties. But the plaintiffs sought for partition of those properties again knowing fully well. It is redundant and amounts to set the clock back after the process of partition became absolute. I, therefore, find substance in the contention of the 1st defendant that the relief of partition again is preposterous and superfluous and it is not maintainable. Moreover, having given power of attorney and having knowledge that the 2nd defendant suffered decree in OS No.
158/1996 filed for specific performance on the strength of agreement of sale executed by the 2nd defendant, the plaintiffs herein did not take steps in the Execution Petition filed by the 1st defendant i.e.,
E.P.20/2001 and E.A.160/2001 filed for execution of the sale deed. As
seen from Ex.B.3, the sale deed was executed by the court. As seen from the evidence of PW.1, 1st defendant has been in possession of the property and they did not seek for recovery of the possession nor they filed the petition under Order XXI Rule 99 of C.P.C. for recovery of the possession setting up their title. A separate suit is not maintainable in view of the provisions enshrined under Order XXI Rule 101 of C.P.C.
46. The over all evidence of PW.1 and PW.2 and the admissions elicited and discussed supra bespeak that the suits are filed at behest of the 2nd defendant and that is the reason why the plaintiffs herein maintained supine in difference without making efforts to revoke the power of attorney consequent to the decree suffered by the 2nd defendant in OS 158/1996 or at least before filing the present suits. It denudes the incognito of the plaintiffs and 2nd defendant. I, therefore, hold the plaintiffs did not approach the court with clean hands and the …22…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 present suit is a subterfuge to gloss over the decree suffered by the 2nd defendant in OS No. 158/1996.
47. As far as the title of the plaintiffs is concerned undoubtedly they got title over the property. But in view of Ex.X.1 power of attorney, they authorized the 2nd defendant to deal with the property and in case of necessity to sell it away. The lower court made threadbare discussion by reproducing the recital of power of attorney regarding the power of the 2nd defendant to sell away the property and any further discussion on the said aspect amounts to repetition.
48. Though the agreement of sale is silent about the power of attorney given to the 2nd defendant by other owners, it was admitted by the 2nd defendant in his evidence as D.W.1 in OS No.158/1996 that he executed the agreement and later his brothers withdrew the consent. It implies that his brothers initially gave consent to execute the agreement and though the agreement is silent about the power of attorney, it is implied that he executed the agreement of sale on behalf of all the brothers and himself or dissimulating that he was the absolute owner of the entire land. Whatever it may be and viewed from any angle, the plaintiffs and the 2nd defendant are estopped from contending that the agreement of sale does not bind the plaintiffs and others. The said aspect was discussed threadbare in the judgment in
OS No. 158/1996 and it was not challenged and it has become final.
Of course, the plaintiffs herein are not parties to the said suit, it does not absolve them from their liability to challenge the judgment or to file a separate suit for cancellation of the said agreement regarding their …23…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 respective shares since they gave power of attorney to the 2nd defendant to manage their properties and to sell their properties if necessary even before execution of the agreement by the 2nd defendant or filing of the suit by the 1st defendant.
49. The plaintiffs contended that the 1st defendant did not tender himself as a witness and his son was examined and thus his defence was not proved though pleaded and consequently the suit is liable to be decreed. I regret my inability to accept the said contention for it is a suit for declaration, irrespective of the contentions of the defendants, the plaintiff has to fall or stand on his/her legs. But the plaintiffs failed to prove that they got right to seek partition again and also failed to prove that they revoked the power of attorney given to the 2nd defendant nor established that the sale agreement was executed behind their back and they never consented for the sale transactions covered by the agreement to sell executed by the 2nd defendant. In view of the aforementioned circumstances, I find no substance in the contention of the plaintiffs that non-examination of the 1st defendant is fatal to the case of the defendants. His son was examined as D.W.1 and he stood the test of cross-examination for nothing concrete was elicited in the cross-examination of D.W.1 to spurn his evidence. He was emphatic about the sale agreement transaction, the advance amounts given and the sale price fixed and his knowledge about the said transaction. He has also given chronicles of events happened subsequent to the execution of agreement and about filing of the suit by 7th defendant OS 31/1993. By and large his evidence reflects …24…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 documentary transaction. I, therefore, find no infirmity whatsoever to shelve his evidence. D.W.2 was examined to show the possession of the suit property by the 1st defendant. Since the plaintiffs i.e., PW.1 himself admitted the possession of the property by the 1st defendant, I do not find any reason to disdain his evidence. I, therefore, hold the evidence of D.W.1 and D.W.2 fillips the 1st defendant's contention.
In view of the aforementioned discussion, I answer the Points 1 and 2 in the negative, against the plaintiffs and in favour of the 1st defendant and I answer the Point No.3 in favour of the 1st defendant and the general power of attorney is binding on the plaintiffs.
50. POINT No.4:
In view of the aforementioned discussion on Points No.1 to 3, I hold the decree passed in OS No.158/1996 is binding on the plaintiffs since the 2nd defendant was authorized to manage their properties and to sell the property if necessary.
This point is answered accordingly.
51. POINT No.5:
As seen from the judgment and discussion on Issue No.4 in
Para 21 of the judgment in OS 86/2001 i.e., Ex.A.5, the agreement of sale was executed by the 2nd defendant only and the suit in OS 158/1996 was filed against the 2nd defendant. Though PW.1 i.e., plaintiff deposed that he executed power of attorney in favour of the 2nd defendant, he categorically explained that the said general power of attorney was only for the purpose of managing the lands belonging …25…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 to him. He also admitted that the husbands of defendants No.4 to 6 also executed general power of attorney and the general power of attorney holder i.e., 2nd defendant was not authorized to execute the sale deed regarding the property covered by agreement of sale i.e.,
Ex.A.3. In that context it was held that it is the burden of the 1st defendant to prove the execution of general power of attorney in favour of the 2nd defendant authorizing him to sell away the property. But, 1st defendant failed to exhibit the general power of attorney. But in the present suits, the general power of attorney was exhibited as
Ex.X.1 and as seen from the recitals therein, the general power of attorney holder was authorized even to sell the property and those recitals confute the evidence of plaintiff in OS 86/2001. That suit was decreed on the ground the 1st defendant herein could not prove the execution of the general power of attorney authorizing the 2nd defendant to sell away the property. The court relied on the oral evidence of PW.1 that the general power of attorney was executed for a limited purpose to manage the property. But as seen from Ex.X.1, the general power of attorney was executed even to sell away the property.
I, therefore, hold the finding in the said judgment could have been different if the power of attorney were exhibited by the 1st defendant herein in the said suit. I, therefore, hold that the said judgment is not conducive in any way to establish the contention of the plaintiffs herein or to subvert the contention of the 1st defendant. I, therefore, hold that the decree suffered by the 1st defendant herein under OS …26…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
No. 86/2001 cannot be a ground to establish the title of the plaintiffs and to reject the claim of 1st defendant.
This point is answered accordingly.
52. POINT No.6:
In view of the discussion on Points 1 to 3, I hold the judgment of the lower court needs no interference.
This point is answered accordingly.
53. AS No.12/2014:
In the result, the appeal is dismissed with costs confirming the judgment and decree dated 27.11.2013 in OS No. 255/2007 on the file of the Court of Principal Senior Civil Judge, Srikakulam.
54. AS No. 7/2015:
In the result, the appeal is dismissed with costs confirming the judgment and decree dated 27.11.2013 in OS No. 256/2007 on the file of the Court of Principal Senior Civil Judge, Srikakulam.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in open court this the 12th day of February, 2019.
1st Additional District Judge, Srikakulam.
Copy to the Principal Senior Civil Judge, Srikakulam.
IN THE COURT OF 1ST ADDITIONAL DISTRICT JUDGE, SRIKAKULAM.
PRESENT: SRI U. SATYA RAO, 1ST ADDL. DISTRICT JUDGE,
SRIKAKULAM.
TUESDAY, THIS THE 12th DAY OF FEBRUARY, 2019
A.S. No. 12/2014 & A.S.No.7/2015
A.S. No.12/2014
Between:
Kannepalli Chandra Sekhar Rao, S/o Mahadevula Bhuktha, Hindu, Aged 52 years, Accountant, Chandra Fabricators, Door No.249-BH Colony, Peddagantyada, Visakhapatnam. Appellant/Plaintiff And:
1.Gunda Papayya, S/o late Narayana, Hindu, Aged 53 years, Resident of Door No. 0-1-15, Susaram village, Polaki Mandal, Srikakulam District.
2.Kannepalli Krishna Murty Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 64 years, Retired Employee, residing at Door No.9-4-98, Old Bridge Road, Srikakulam.
3.Kannepalli Viswanadha Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 59 years, Incharge Principal Sarada Engineering College, Ampolu village and post, Srikakulam rural mandal and district.
4.Kannepalli Kumara Swamy, S/o late Mahadevula Bhuktha, Hindu, Aged 66 years, Rtd. employee, resident of Flat No.10, Vijaya Apartments, Door No.49-24-53/10, near Sankaramatham, Madhuranagar, Visakhapatnam (DIED)
5.Kannepalli Subbalakshmi, W/o Appalanarasimha Buktha, Hindu Aged 55 years, Household duties, R/at 112-C, Sector II, Ukkunagaram, Visakhapatnam.
6.Kannepalli Sudharao, W/o Bala Bhaskara Rao, Hindu, Household duties, Resident of 301-AO Wing, Balaji Apartments, Poojanagar, Cabin Road, Bhejandar (East), Thane District, Bombay-40
7.Kannepalli Kameswara Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 68 years, Land Lord, Residing Door No.15-16, Priyagraharam village and post, Polaki Mandalam, Srikakulam district.
…2…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
8.K. Varalaxmi, W/o Kannepalli Kumara Swamy, Hindu, Aged 64 years, resident of Flat No.10, Vijaya Apartments, Door No.49-24- 53/10, near Sankaramatham, Madhuranagar, Visakhapatnam.
9.K. Krishna Kishore, S/o Kannepalli Kumara Swamy, Hindu, Aged 33 years, resident of Flat No.10, Vijaya Apartments, Door No.49- 24-53/10, near Sankaramatham, Madhuranagar, Visakhapatnam.
The respondents 8 and 9 are added as legal representatives of the deceased 4th respondent, as per orders in IA No.24/2015, dated 12,.06.2015. Respondents/defendants.
Appeal filed against the Decree and Judgment made in OS
No. 255/2007 dated 27.11.2013 on the file of the Court of
Principal Senior Civil Judge, Srikakulam.
Between:
Kannepalli Chandra Sekhar Rao Plaintiff. And:
1.Gunda Papayya
2.Kannepalli Krishna Murty Bhuktha
3.Kannepalli Viswanadha Bhkitha
4.Kannepalli Kumara Swamy (DIED)
5.Kannepalli Sudha Rao
6.Kannepalli Chandra sekhara Rao
7.Kannepalli IKameswara Bhuktha Defendants.
A.S.No.7/2015
Between:
Kannepalli Subbalakshmi, W/o Appalanarasimha Bhuktha, Hindu, Aged 55 years, Household duties, Residing at 112-C, Sector II, Ukkunagaram, Visakhapatnam.
Appellant/Plaintiff.
…3…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
And:
1.Gunda Papayya, S/o late Narayana, Hindu, Aged 53 years, Resident of Door No. 0-1-15, Susaram village, Polaki Mandal, Srikakulam District.
2.Kannepalli Krishna Murty Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 64 years, Retired Employee, residing at Door No.9-4-98, Old Bridge Road, Srikakulam.
3.Kannepalli Viswanadha Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 59 years, Incharge Principal Sarada Engineering College, Ampolu village and post, Srikakulam rural mandal and district.
4.Kannepalli Kumara Swamy, S/o late Mahadevula Bhuktha, Hindu, Aged 66 years, Rtd. employee, resident of Flat No.10, Vijaya Apartments, Door No.49-24-53/10, near Sankaramatham, Madhuranagar, Visakhapatnam (DIED)
5.Kannepalli Sudha Rao, W/o Bala Bhaskara Rao, Hindu, Household duties, Resident of 301-AO Wing, Balaji Apartments, Poojanagar, Cabin Road, Bhejandar (East), Thane District, Bombay-40
6.Kannepalli Chandra Sekhara Rao, S/o Mahadevula Bhuktha, Hindu, Aged 52 years, Accountant,Chandra Fabricators, Door No.249-BH Colony, Peddagantyada, Visakhapatnam.
7.Kannepalli Kameswara Bhuktha, S/o late Mahadevula Bhuktha, Hindu, Aged 68 years, Land Lord, Residing Door No.15-16, Priyagraharam village and post, Polaki Mandalam, Srikakulam district.
8.K. Varalaxmi, W/o late Kumara Swamy, Hindu, Aged 64 years, resident of Flat No.10, Vijaya Apartments, Door No.49-24-53/10, near Sankaramatham, Madhuranagar, Visakhapatnam.
9.K. Krishna Kishore, S/o late Kumara Swamy, Hindu, Aged 33 years, resident of Flat No.10, Vijaya Apartments, Door No.49-24- 53/10, near Sankaramatham, Madhuranagar, Visakhapatnam.
The respondents 8 and 9 are added as legal representatives of the deceased 4th respondent, as per orders in IA No.1299/2015, dated 22.03.2016. Respondents/defendants …4…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
Appeal filed against the Decree and Judgment made in OS
No. 256/2007 dated 27.11.2013 on the file of the Court of
Principal Senior Civil Judge, Srikakulam.
Between:
Kannepalli Subbalakshmi Plaintiff.
And:
1.Gunda Papayya
2.Kannepalli Krishna Murty Bhuktha
3.Kannepalli Viswanadha Bhkitha
4.Kannepalli Kumara Swamy (DIED)
5.Kannepalli Sudha Rao
6.Kannepalli Chandra sekhara Rao
7.Kannepalli Kameswara Bhuktha Defendants.
Both these appeals coming on 29.01.2019 for final hearing
before me in the presence of Sri P.V.S.Seetharamayya, learned
Advocate for the appellant in both the appeals and of Sri Palli Rama Rao, learned Advocate for the 1st respondent and Sri K. Suresh, learned Advocate for Respondents No.8 and 9, and the Respondents No.2, 3 and 5 to 7 remained ex parte in both the appeals and having heard both sides and stood over till this day for consideration, this court made the following:
COMMON JUDGMENT
01. A.S. No.12/2014
This is an appeal preferred by the unsuccessful plaintiff assailing the decree and judgment dated 27.11.2013 in OS No.
255/2007 passed by the Principal Senior Civil Judge, Srikakulam.
02. The present appeal stems from the common judgment passed by the Principal Senior Civil Judge, Srikakulam in OS
No.255/2007 and OS 256/2007.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
03. The parties are arrayed as depicted in the suit for the sake of convenience.
04. The suit was filed for declaration of title of the plaintiff regarding the extent of Ac.2.03 cents out of the suit schedule property i.e. his 1/8th share and for partition and separate possession of the said extent from the suit property.
05. The provenance of the case facts is, the plaintiff, defendants 2 to 4, husband of the 5th defendant and the defendants 6 and 7 are the consanguine brothers and sons of late Mahadevula
Bhuktha. The properties were divided among Mahadevula Bhuktha and his 7 sons way back in the year 1969 and partition list was prepared on 26.05.1969. The properties were divided into 8 lots shown as "ABCDEFG and H" and the lands were not physically divided since they were under the cultivation of tenants by then.
06. While so, Mahadevula Bhuktha died in the year 1974. 7th defendant herein filed suit for partition and separate possession of his share and it was numbered as OS 31/1993 on the file of Principal
Senior Civil Judge, Srikakulam. The suit was preliminary decreed on
28.12.1998. The plaintiff was allotted Ac.2.03 cents of land in Survey
No. 238 of Dandu Lakshmipuram village of Polaki mandal out of
Ac.16.24 cents and it was not divided by metes and bounds.
07 The 1st defendant obtained an agreement of sale in respect of Ac.10.00 of land in Survey No.238 of Dandu Lakshmipuram village said to have been executed by the 2nd defendant where under the 2nd …6…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 defendant agreed to sell the land for consideration of Rs.65,000/- and received earnest money of Rs.30,000/-. It was a collusive transaction and it is not binding on the plaintiff and other co-sharers. It appears a suit was filed and it was numbered as OS No.158/1996 by the 1st defendant for specific performance of agreement of sale mentioned above. The learned Additional Senior Civil Judge, Srikakulam passed the decree in the suit in favour of 1st defendant and against the 2nd defendant. 1st defendant has been making efforts to execute the decree. The said decree is not binding on the plaintiff regarding her share of land extending Ac.2.03 cents situated in the aforementioned survey number.
08. While so, the 1st defendant filed E.P.20/2011 and EA
No.160/2011 for execution of the sale deed against the 2nd defendant and it was pending enquiry. If it is allowed, the 2nd defendant would execute the sale deed in which event the matter would lead to unnecessary and unavoidable expenses and litigations. The 2nd defendant is not competent to execute such sale deed regarding the share of the plaintiff.
09. The property was not divided by metes and bounds in the year 1969 and thus the present suit for partition and separate possession of the plaintiff's share of Ac.2.03 cents out of Ac.16.24 cents. Hence, the suit.
10. 1st defendant filed written statement admitting the consanguine relationship as averred in the plaint and denying all the material averments of the plaint. The joint family properties were …7…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 partitioned way back in the year 1969 and ever since each sharer has been enjoying his separate share and some properties remained undivided to discharge some of the family debts and to perform the marriage of the female members of the family. The suit in OS No.
31/1993 was filed on the file of Principal Senior Civil Judge,
Srikakulam for partition of those undivided properties and for other reliefs and the plaintiff is one of the parties to the suit and thus the decree and judgment in OS No.31/1993 is binding on the plaintiff.
11. The plaintiff's contention that OS No.31/1993 was filed by the 7th defendant herein for partition of his father's share, is not correct. The plea of the plaintiff that she was allotted Ac.2.03 cents out of total Ac.16.24 cents in Survey No.238 of Dandu Lakshmipuram village and it was not specifically delivered, is false.
12. The 2nd defendant's brother executed general power of attorney vide Document No. 3/1974, dated 7.3.1974 at Sub Registrar
Office, Narasannapeta in favour of the 2nd defendant and basing on the said general power of attorney, the 2nd defendant executed sale agreement and registered the sale deed in favour of 1st defendant and others. 2nd defendant intentionally suppressed the said fact in the agreement executed in favour of the 1st defendant. All the brothers of the 2nd defendant knew about the said fact and falsely filed the suits against the 1st defendant and to harass him.
13. The decree was passed in favour of 1st defendant in OS No.
158/1996 i.e., suit filed for specific performance of agreement of sale dt.30.05.1993 executed by the 2nd defendant herein for extent of …8…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
Ac.11.96 cents in Survey No. 238 of Dandu Lakshmipuram village. He filed E.P.20/2001 and EA No.160/2001 in pursuance of the decree passed in OS No.158/1996.
14. The 1st defendant cultivated the suit land as a tenant prior to the execution of the agreement of sale by the 2nd defendant and used to pay the lease premium to the 2nd defendant.
15. The frame of the suit for partition and for declaration of title of the plaintiff is bad. The plaintiff cannot seek partition of the plaint schedule property since partition was done on 25.06.1969. The suit for partition of a bit of land i.e., the suit schedule land, is not maintainable. The court fee paid is incorrect and the suit is bad for non-joinder of necessary parties.
16. The rest of the defendants remained ex parte.
17. On the strength of the aforementioned pleadings, the following issues were settled for trial:
1.Whether the plaintiff is entitled to declaration of title over 1/8th share of suit schedule property?
2.Whether the plaintiff is entitled to partition and separate possession of said property?
3.To what relief?
18. AS 7/2005:
This is an appeal preferred by the unsuccessful plaintiff assailing the decree and judgment dated 27.11.2013 in OS No.
256/2007 passed by the Principal Senior Civil Judge, Srikakulam.
…9…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
19. The present appeal stems from the common judgment passed by the Principal Senior Civil Judge, Srikakulam in OS
No.255/2007 and OS 256/2007.
20. The suit was filed for declaration of title of the plaintiff regarding the extent of Ac.2.03 cents out of the suit schedule property i.e. her 1/8th share and for partition and separate possession of the said extent from the suit property.
21. The provenance of the case facts is, in OS No.255/2007, the plaintiff's husband, the defendants 2 to 4, 5th defendant's husband and the defendants 6 and 7 are the consanguine brothers and sons of late Mahadevula Bhuktha. The properties were partitioned in the year 1969 among Mahadevula Bhuktha and his 7 sons and in that context partition deed was prepared on 26.05.1969. All the landed properties were divided into 8 lots shown as "ABCDEFG and H" and they were not physically divided since most of the lands were in the cultivation of the tenants by then. Whileso, Mahadevula Bhuktha died in the year 1974. 7th defendant filed a suit for partition and possession of his share and it was numbered as OS No. 31/1993 on the file of Principal Senior Civil Judge, Srikakulam and it was preliminary decreed on 28.12.1998. The plaintiff herein was allotted an extent of Ac.02.03 cents in Survey No. 238 (Old Survey No.1046) in
Dandu Lakshmipuram village of Polaki mandal out of total extent of
Ac.16.24 cents and it was not divided by metes and bounds.
…10…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
22. The 1st defendant obtained an agreement of sale in respect of Ac.10.00 of land in Survey No.238 of Dandu Lakshmipuram village said to have been executed by the 2nd defendant where under the 2nd defendant agreed to sell the land for consideration of Rs.65,000/- and received earnest money of Rs.30,000/-. It was a collusive transaction and it is not binding on the plaintiff and other co-sharers. It appears a suit was filed and it was numbered as OS No.158/1996 by the 1st defendant for specific performance of agreement of sale mentioned above. The learned Additional Senior Civil Judge, Srikakulam passed the decree in the suit in favourof 1st defendant and against the 2nd defendant. 1st defendant has been making efforts to execute the decree. The said decree isnot binding on the plaintiff regarding her share of land extending Ac.2.03 cents situated in the aforementioned survey number.
23. While so, the 1st defendant filed E.P.20/2011 and EA
No.160/2011 for execution of the sale deed against the 2nd defendant and it was pending enquiry. If it is allowed, the 2nd defendant would execute the sale deed in which even the matter would lead to unnecessary and unavoidable expenses and litigations. The 2nd defendant is not competent to execute such sale deed regarding the share of the plaintiff.
24. The property was not divided by metes and bounds in the year 1969 and thus the present suit for partition and separate possession of the plaintiff's share of Ac.2.03 cents out of Ac.16.24 cents. Hence, the suit.
…11…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
25. 1st defendant filed written statement admitting the consanguine relationship as averred in the plaint and denying all the material averments of the plaint. The joint family properties were partitioned way back in the year 1969 and ever since each sharer has been enjoying his separate share and some properties remained undivided to discharge some of the family debts and to perform the marriage of the female members of the family. The suit in OS No.
31/1993 was filed on the file of Principal Senior Civil Judge,
Srikakulam for partition of those undivided properties and for other reliefs and the plaintiff is one of the parties to the suit and thus the decree and judgment in OS No.31/1993 isbinding on the plaintiff.
26. The plaintiff's contention that OS No.31/1993 was filed by the 7th defendant herein for partition of his father's share, is not correct. The plea of the plaintiff she was allotted Ac.2.03 cents out of total Ac.16.24 cents in Survey No.238 of Dandu Lakshmipuram village and it was not specifically delivered, is false.
27. The 2nd defendant's brothers executed general power of attorney vide Document No. 3/1974, dated 7.3.1974 at Sub Registrar
Office, Narasannapeta in favour of the 2nd defendant and basing on the said general power of attorney, the 2nd defendant executed sale agreement and registered the sale deed in favour of 1st defendant and others. 2nd defendant intentionally suppressed the said fact in the agreement executed in favour of the 1st defendant. All the brothers of the 2nd defendant knew about the said fact and falsely filed the suits against the 1st defendant and to harass him.
…12…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
28. The decree was passed in favour of 1st defendant in OS No.
158/1996 i.e., suit filed for specific performance of agreement of sale dt.30.05.1993 executed by the 2nd defendant herein for extent of
Ac.11.96 cents in Survey No. 238 of Dandu Lakshmipuram village. He filed E.P.20/2001 and EA No.160/2001 in pursuance of the decree passed in OS No.158/1996.
29. The 1st defendant cultivated the suit land as a tenant prior to the execution of the agreement of sale by the 2nd defendant and used to pay the lease premium to the 2nd defendant.
30. The frame of the suit for partition and for declaration of title of the plaintiff is bad. The plaintiff cannot seek partition of the plaint schedule property since partition was done on 25.06.1969. The suit for partition of a bit of land i.e., the suit schedule land, is not maintainable. The court fee paid is incorrect and the suit is bad for non-joinder of necessary parties.
31. The rest of the defendants remained ex parte.
32. On the strength of the aforementioned pleadings, the following issues were settled for trial:
1.Whether there was an earlier partition in between the husband of the plaintiff, the defendants and their brothers as contended?
2.Whether the registered general power of attorney executed in favour of the 2nd defendant in respect of the schedule property is true and correct and binding on the plaintiff?
3.Whether the decree is passed in OS No. 158/1996 on the file of this court is binding on the plaintiff?
…13…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
4.Whether the plaintiff is entitled for declaration as prayed for?
5.Whether the plaintiff is entitled to partition of the schedule property and for separate possession as contended?
6.To what relief?
33. As seen from the material available on record, a memo was filed by the parties to both the suits mentioned above and common evidence was let in both the suits.
34. The plaintiffs in OS No.255/2007 and 256/2007 are examined as PW.1 and PW.2 respectively. Exs.A.1 to A.5 were exhibited on behalf of the plaintiffs. The general power of attorney was exhibited as Ex.X.1. The son of 1st defendant and one
T.Jagannadham were examined as D.W.1 and D.W.2 respectively and
Exs.B.1 to B.3 were marked on behalf of the 1st defendant?
35. Given the evidence let in by the parties to the suits, the lower court dismissed the suits against which the present appeals were preferred by the unsuccessful plaintiffs in OS No.255/2007 and
OS No.256/2007.
36. As seen from the appeal grounds of both the appeals, the lower court ought to have decreed the suit for declaration of title of the plaintiffs for an extent of Ac.2.03 cents each, the lower court ought to have observed that the decree in OS 158/1996 is not binding on them, the lower court ought to have seen that the 1st defendant preferred the appeal challenging the decree and judgment passed in OS 86/2001 and it is an impediment for the 1st defendant to establish his claim.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
37. Given the appeal grounds and contentions of the parties to the appeals, the points for determination are:
1.Whether the plaintiffs are entitled for declaration of their title as prayed for?
2.Whether the plaintiffs are entitled for partition and separate possession as prayed for?
3.Whether the brothers of the 2nd defendant executed general power of attorney in favour of the 2nd defendant relating to the suit property and if so whether it is binding on the plaintiffs?
4.Whether the decree passed in OS No.158/1996 in favour of the 1st defendant is binding on the plaintiffs?
5.Whether the decree suffered by the 1st defendant in
OS 86/2001 is a ground to decree the suit filed by the
plaintiffs and to reject the plea of the 1st defendant?
6.Whether the judgment of the lower court needs any interference?
38. The admitted facts are the plaintiff in OS 255/2007, plaintiff's husband in OS No.256/2007, defendants 2 to 4 and the defendants 6 and 7 in OS No. 255/2007 are consanguine brothers and children of Mahadevula Bhuktha, the family properties were partitioned way back in the year 1969, OS No.31/1993 was filed by one of the co-sharers on the file of Principal Senior Civil Judge,
Srikakulam for partition of undivided properties which was kept joint and that suit was decreed. The disputed facts are the properties which were partitioned in the year 1969 were not physically divided since they were in possession of tenants. The 2nd defendant executed an agreement of sale in favour of the 1st defendant and the other brothers of the 2nd defendant executed general power of attorney in …15…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 favour of the 2nd defendant and thus the agreement of sale said to have been executed by the 2nd defendant in favour of the 1st defendant is binding on the plaintiffs in both the suits.
39. Since points 1 to 3 are inter related, I earnestly feel it is propitious to decide the points 1 to 3.
40. POINTS No.1 to 3:
To shore up their contention, the plaintiffs in OS
No.255/2007 and 256/2007 examined themselves as PW.1 and PW.2 respectively. They filed affidavits in lieu of examination in chief affirming all the material averments of the plaint. PW.1 is the plaintiff in OS No.255/2007 and he asserted in the affidavit in lieu of examination in chief that the properties were divided among his father and sons including himself in 1969 and in that context a partition list was prepared on 26.5.1969 and it was signed by all of them. Since brothers have been residing at different and distant places, the lands were in the cultivation of the tenants and each sharer has been collecting his share from the tenants. The 7th defendant filed a suit in
OS 31/1993 for partition consequent to the death of his father in 1974
and for separate possession of his share in the properties of
Mahadevula Bhuktha i.e. his father on the file of Principal Senior Civil
Judge, Srikakulam and the said suit was preliminary decreed on
28.12.1998. He owns an extent of Ac.2.03 cents in Survey No.238 of
Dandu Lakshmipuram village out of total extent of Ac.16.24 cents.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
41. It was elicited in the cross-examination, he could know that 1st defendant filed suit in OS No. 158/1996 on the file of Additional
Senior Civil Judge, Srikakulam against the 2nd defendant for specific
performance of agreement of sale executed by the 2nd defendant in respect of plaint schedule property herein and obtained decree for an extent of Ac.10.00 of land. He did not know whether it was observed in the Judgment in OS 158/1996 in Para - 10 that the 2nd defendant herein represented the entire suit property as his exclusive property and it was in his possession. He did not remember whether he filed the documents evidencing partition in the present suit. The plaintiff in OS
No.256/2007, Appalanarasimha Buktha, Kumara Swamy, Bala
Bhaskara Rao and himself executed general power of attorney in favour of the 2nd defendant regarding the property fallen to their respective shares. It was recited in the general power of attorney dated 07.03.1974 that all the properties are in joint possession and enjoyment and the said general power of attorney is in force as on today. The 1st defendant has been in possession and enjoyment of the suit property. 2nd defendant herein looked after the court matters in
OS No. 86/2001 and OS No.256/2007 and he is resident of the
locality. This is the kernel of the cross-examination.
42. PW.2 filed affidavit in lieu of examination in chief affirming all the material averments of the plaint. It was elicited in the cross- examination that the 2nd defendant was assisting her in giving instructions to his counsel. She signed in the plaint on the instructions given by the 2nd defendant herein. She did not know the …17…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 averments of the plaint. The 2nd defendant brought the plaint and she subscribed her signature therein. The 2nd defendant has been dealing with her property situated in Srikakulam district. The 2nd defendant sold the said property to the 1st defendant. She knew that the 1st defendant filed a suit against the 2nd defendant. The 2nd defendant has been managing her family properties, he has been collecting rents from the tenants and he has been distributing the respective shares collected by him to the co-sharers. The lands situated in Dandu
Lakshmipuram and Priya Agraharam villages are being managed by the 2nd defendant hitherto and they are joint family properties. She admitted that the 2nd defendant executed an agreement of sale relating to the suit property in favour of the 1st defendant in the year 1993. This is the nub of the cross-examination.
43. As seen from the afore mentioned facts elicited in the cross- examination of PW.1 and PW.2, it is discernible that all the consanguine brothers of the 2nd defendant gave general power of attorney to the 2nd defendant relating to the suit property. It was exhibited as Ex.X.1. As seen from the recitals mentioned therein, it is evident that they have given power to manage and to sell the property.
This material fact was not disclosed in the plant by PW.1 and PW.2.
The learned Advocate for the respondents adroitly argued considering for arguments sake that they were not aware of the sale agreement said to have been executed by the 2nd defendant in favour of the 1st defendant, they are estopped from contending that it is not binding on them since the 2nd defendant sold away the said property by …18…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 projecting himself as ostensible owner. I find substance in the contention of 1st defendant since 2nd defendant by virtue of general power of attorney executed by the remaining co-sharers has got right to sell away the property under the agreement of sale and he knew about his right and title over the property on the date he entered into agreement with the 1st defendant. He is, therefore, estopped from reneging on the ground that his brothers did not give consent subsequently. As seen from the copy of judgment and discussion made in OS No.158/1996 filed by the 1st defendant for specific performance against the 2nd defendant herein, it was discussed in
Para-9 by highlighting the material aspects elicited in the examination of the 2nd defendant herein examined as D.W.1 therein. As seen from the said discussion in Paras 9 and 10 that he executed an agreement of sale on behalf of his brothers who have been residing in different places and he could not execute the said deed since his brothers withdrew their consent. But as seen from the evidence of PW.1 who is one of the brothers and who executed the general power of attorney in favour of the 2nd defendant and so also the evidence of PW.2 who is the wife of one of the brothers of the 2nd defendant, the power of general attorney is still in force and it was not revoked. It is, therefore, manifest that the brothers of D.W.2 never revoked the power of attorney and there is no material whatsoever to show that they withdrew the consent subsequently as stated in the evidence of D.W.1 i.e., 2nd defendant herein.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
44. Since PW.1 and PW.2 unequivocally admitted about the giving power of attorney i.e., Ex.X.1 to the 2nd defendant and in view of the admissions made by PW.2 that she subscribed her signatures in the plaint and the plaint was drafted on the information given by the 2nd defendant, I hold that the suit is a collusive one and it vindicates the 1st defendant's contention that the plaintiffs herein and the 2nd defendant are hand in glove. All these aspects were discussed at length in the judgment in OS 158/1996 and I, therefore, hold that the plaintiffs herein are estopped to contend that they were not aware of the agreement executed by the 2nd defendant and the 2nd defendant is not competent nor authorized to sell away the rest of the lands belonging to them under the said agreement. The very factum that they never made any endeavour hitherto to get Ex.X.1 general power of attorney revoked and still it is the 2nd defendant who has been managing the properties graphically makes it clear that they never come in the way of the 2nd defendant to deal with the property belonging to them as he likes. It is discernible in the sale deed executed by the 2nd defendant on behalf of his brothers and exhibited as Ex.B.1 and Ex.B.2. As seen from Exs.B.1 and B.2 sale deeds, the 2nd defendant executed the sale deed by selling away the properties belonging to his brothers and himself by virtue of the general power of attorney in his favour. This is another weighing circumstance improbablizing the plaintiffs' contention that they were not aware of the sale agreement said to have been executed by the 2nd defendant in favour of the 1st defendant.
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Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
45. As seen from the pleadings of the plaint and the evidence of
PW.1 and PW.2, it is evident that there was partition of large chunk of property way back in the year 1969 and during the life time of
Mahadevula Bhuktha and the partition list was prepared. Some of the properties were kept joint to perform the marriages of unmarried daughters and consequent to the death of Mahadevula Bhuktha in 1974, one of the sons filed a suit i.e., OS 31/1993 for partition and it was preliminary decreed in part. But the plaintiffs herein did not file final decree petition nor they made any endeavour to get their respective shares engrossed in order to obtain physical delivery of their respective shares of properties allotted to them. Conversely, the plaintiffs herein filed present suits for partition of the properties again and for declaration of their title. It cannot be lost sight and the 1st defendant never challenged their title to the property and also the alleged partition way back in the year 1969. Per contra, he has been relying on the said partition. As seen from the judgment and decree exhibited as Exx.A.1 and A.2 passed in OS No.31/1993, the undivided joint family property which was left for marriages of the unmarried daughters of Mahadevula Bhukthawas partitioned and preliminary decree was passed. But the plaintiffs herein who filed the suits never pursued the matter after the preliminary decree for partition of the properties was passed. By virtue of the partition list way back in the year 1969 and also the preliminary decree for partition of the properties passed in 1998 in OS No. 31/1993, the partition of the properties becomes absolute and there remained nothing to partition …21…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 the properties. But the plaintiffs sought for partition of those properties again knowing fully well. It is redundant and amounts to set the clock back after the process of partition became absolute. I, therefore, find substance in the contention of the 1st defendant that the relief of partition again is preposterous and superfluous and it is not maintainable. Moreover, having given power of attorney and having knowledge that the 2nd defendant suffered decree in OS No.
158/1996 filed for specific performance on the strength of agreement of sale executed by the 2nd defendant, the plaintiffs herein did not take steps in the Execution Petition filed by the 1st defendant i.e.,
E.P.20/2001 and E.A.160/2001 filed for execution of the sale deed. As
seen from Ex.B.3, the sale deed was executed by the court. As seen from the evidence of PW.1, 1st defendant has been in possession of the property and they did not seek for recovery of the possession nor they filed the petition under Order XXI Rule 99 of C.P.C. for recovery of the possession setting up their title. A separate suit is not maintainable in view of the provisions enshrined under Order XXI Rule 101 of C.P.C.
46. The over all evidence of PW.1 and PW.2 and the admissions elicited and discussed supra bespeak that the suits are filed at behest of the 2nd defendant and that is the reason why the plaintiffs herein maintained supine in difference without making efforts to revoke the power of attorney consequent to the decree suffered by the 2nd defendant in OS 158/1996 or at least before filing the present suits. It denudes the incognito of the plaintiffs and 2nd defendant. I, therefore, hold the plaintiffs did not approach the court with clean hands and the …22…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 present suit is a subterfuge to gloss over the decree suffered by the 2nd defendant in OS No. 158/1996.
47. As far as the title of the plaintiffs is concerned undoubtedly they got title over the property. But in view of Ex.X.1 power of attorney, they authorized the 2nd defendant to deal with the property and in case of necessity to sell it away. The lower court made threadbare discussion by reproducing the recital of power of attorney regarding the power of the 2nd defendant to sell away the property and any further discussion on the said aspect amounts to repetition.
48. Though the agreement of sale is silent about the power of attorney given to the 2nd defendant by other owners, it was admitted by the 2nd defendant in his evidence as D.W.1 in OS No.158/1996 that he executed the agreement and later his brothers withdrew the consent. It implies that his brothers initially gave consent to execute the agreement and though the agreement is silent about the power of attorney, it is implied that he executed the agreement of sale on behalf of all the brothers and himself or dissimulating that he was the absolute owner of the entire land. Whatever it may be and viewed from any angle, the plaintiffs and the 2nd defendant are estopped from contending that the agreement of sale does not bind the plaintiffs and others. The said aspect was discussed threadbare in the judgment in
OS No. 158/1996 and it was not challenged and it has become final.
Of course, the plaintiffs herein are not parties to the said suit, it does not absolve them from their liability to challenge the judgment or to file a separate suit for cancellation of the said agreement regarding their …23…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 respective shares since they gave power of attorney to the 2nd defendant to manage their properties and to sell their properties if necessary even before execution of the agreement by the 2nd defendant or filing of the suit by the 1st defendant.
49. The plaintiffs contended that the 1st defendant did not tender himself as a witness and his son was examined and thus his defence was not proved though pleaded and consequently the suit is liable to be decreed. I regret my inability to accept the said contention for it is a suit for declaration, irrespective of the contentions of the defendants, the plaintiff has to fall or stand on his/her legs. But the plaintiffs failed to prove that they got right to seek partition again and also failed to prove that they revoked the power of attorney given to the 2nd defendant nor established that the sale agreement was executed behind their back and they never consented for the sale transactions covered by the agreement to sell executed by the 2nd defendant. In view of the aforementioned circumstances, I find no substance in the contention of the plaintiffs that non-examination of the 1st defendant is fatal to the case of the defendants. His son was examined as D.W.1 and he stood the test of cross-examination for nothing concrete was elicited in the cross-examination of D.W.1 to spurn his evidence. He was emphatic about the sale agreement transaction, the advance amounts given and the sale price fixed and his knowledge about the said transaction. He has also given chronicles of events happened subsequent to the execution of agreement and about filing of the suit by 7th defendant OS 31/1993. By and large his evidence reflects …24…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 documentary transaction. I, therefore, find no infirmity whatsoever to shelve his evidence. D.W.2 was examined to show the possession of the suit property by the 1st defendant. Since the plaintiffs i.e., PW.1 himself admitted the possession of the property by the 1st defendant, I do not find any reason to disdain his evidence. I, therefore, hold the evidence of D.W.1 and D.W.2 fillips the 1st defendant's contention.
In view of the aforementioned discussion, I answer the Points 1 and 2 in the negative, against the plaintiffs and in favour of the 1st defendant and I answer the Point No.3 in favour of the 1st defendant and the general power of attorney is binding on the plaintiffs.
50. POINT No.4:
In view of the aforementioned discussion on Points No.1 to 3, I hold the decree passed in OS No.158/1996 is binding on the plaintiffs since the 2nd defendant was authorized to manage their properties and to sell the property if necessary.
This point is answered accordingly.
51. POINT No.5:
As seen from the judgment and discussion on Issue No.4 in
Para 21 of the judgment in OS 86/2001 i.e., Ex.A.5, the agreement of sale was executed by the 2nd defendant only and the suit in OS 158/1996 was filed against the 2nd defendant. Though PW.1 i.e., plaintiff deposed that he executed power of attorney in favour of the 2nd defendant, he categorically explained that the said general power of attorney was only for the purpose of managing the lands belonging …25…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019 to him. He also admitted that the husbands of defendants No.4 to 6 also executed general power of attorney and the general power of attorney holder i.e., 2nd defendant was not authorized to execute the sale deed regarding the property covered by agreement of sale i.e.,
Ex.A.3. In that context it was held that it is the burden of the 1st defendant to prove the execution of general power of attorney in favour of the 2nd defendant authorizing him to sell away the property. But, 1st defendant failed to exhibit the general power of attorney. But in the present suits, the general power of attorney was exhibited as
Ex.X.1 and as seen from the recitals therein, the general power of attorney holder was authorized even to sell the property and those recitals confute the evidence of plaintiff in OS 86/2001. That suit was decreed on the ground the 1st defendant herein could not prove the execution of the general power of attorney authorizing the 2nd defendant to sell away the property. The court relied on the oral evidence of PW.1 that the general power of attorney was executed for a limited purpose to manage the property. But as seen from Ex.X.1, the general power of attorney was executed even to sell away the property.
I, therefore, hold the finding in the said judgment could have been different if the power of attorney were exhibited by the 1st defendant herein in the said suit. I, therefore, hold that the said judgment is not conducive in any way to establish the contention of the plaintiffs herein or to subvert the contention of the 1st defendant. I, therefore, hold that the decree suffered by the 1st defendant herein under OS …26…
Common Judgment in AS No.12/2014 and 7/2015 1st ADJ Court, Srikakulam, dated 12.02.2019
No. 86/2001 cannot be a ground to establish the title of the plaintiffs and to reject the claim of 1st defendant.
This point is answered accordingly.
52. POINT No.6:
In view of the discussion on Points 1 to 3, I hold the judgment of the lower court needs no interference.
This point is answered accordingly.
53. AS No.12/2014:
In the result, the appeal is dismissed with costs confirming the judgment and decree dated 27.11.2013 in OS No. 255/2007 on the file of the Court of Principal Senior Civil Judge, Srikakulam.
54. AS No. 7/2015:
In the result, the appeal is dismissed with costs confirming the judgment and decree dated 27.11.2013 in OS No. 256/2007 on the file of the Court of Principal Senior Civil Judge, Srikakulam.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in open court this the 12th day of February, 2019.
1st Additional District Judge, Srikakulam.
Copy to the Principal Senior Civil Judge, Srikakulam.
IN THE COURT OF SPECIAL JUDGE FOR TRIAL OF CASES UNDER
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,
2012- CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE,
SRIKAKULAM.
Present: Sri U. SATYA RAO,
SPECIAL JUDGE FOR TRIAL OF CASES UNDER THE PROTECTION
OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012-CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE, SRIKAKULAM
THURSDAY, THIS THE 07th DAY OF FEBRUARY, 2019
SESSIONS CASE No. 5/2018
(Crime No. 86/2016 of Kotabommali Police Station)
Between:
State represented by the Sub Inspector of Police, Kotabommali police station. Complainant.
And:
1.Chitta Damodara Rao @ Simhadri @ Siva, S/o late Yerrayya, 18 years, SC/Mala byc aste of Yetturallapadu village, Kotabommali Mandal. (A.1)
2.Kirri Raju @ Rajkumar, S/o Chittayya, 19 years, SC/Mala by caste ofNimmiada junction, Peddabammidi panchayati, Kotabommali Mandal. (A.2)
3.Dummu Nageswara Rao @ Vasantha Rao, S/o Laxmayya, 34 years, Vadabalija by caste of Gullavanipeta village, Polaki Mandal (A.3) (DIED) Accused.
Prosecution was conducted by: Sri K.Tirumala Rao Special Public Prosecutor, Srikakulam.
Accused was defended by: Smt.D.Vijayalakshmi Smt. L.Laxmi, Advocate, Srikakulam.
Offences: Under Section 376 (2)(i) of the Indian Penal Code and Section 3
(a) R/w 4 of Protection of Children from Sexual Offenses Act, 2012.
Plea of accused: Pleaded not guilty.
Finding of the Judge: Found not guilty.
2 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
Sentence or Order: In the result, I find A.1 and A.2 not guilty for the offence punishable under Section 363 of Indian Penal Code, I find A1 not guilty for the offence punishable under Section 11 R/w 12 of Protection of Children from Sexual Offences Act and I find A.2 not guilty for the offence punishable under Section 16 R/w 17 of the Protection of Children from Sexual Offences Act and they are acquitted under Section 235 (1) of the Criminal Procedure Code.
The case property MO.1 shall be returned to A.1 after appeal time is over.
This case came on 30.01.2019 for final hearing before me in the presence of Sri K.Tirumalarao, learned Special Public Prosecutor
for the complainant/State and Smt. D.Vijayalakshmi and Smt.
L.Lakshmi, learned Advocate for the accused and having heard both sides and having stood over till this day for consideration, this court delivered the following:
J U D G M E N T
01. The Sub Inspector of Police, Kotabommali police station charge sheeted the accused alleging that they committed the offences punishable under Section 363 of the Indian Penal Code and
Section 11 R/w 12 of the Protection of Children from Sexual
Offenses Act.
02. The provinance of the case facts is, one Karri
Venugopala Rao and Karri Anuradha of Kasturipadu village,
Kotabommali mandal are the parents of the victim girl. When the victim girl was studying 10th class at Jarjangi village, A.1 used to visit the said village for playing volleyball and ever since he tried to trap the victim girl. The victim girl joined in Govt. Junior College,
Kotabommali to pursue intermediate course. When she was studying 3 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
2nd year intermediate, A.1 with the support of A.2 continued his efforts to trap the victim girl by deceiving her and by making allurements and blandishments and expressing his love and promising to marry her. The victim girl was inveigled by A.1 and gave her consent. A.1 with the help of A.2 frequently visited
Kasturipadu village and Kothapeta village and he used to take the victim girl to the outskirts, beach and they loitered here and there at
Gullavanipeta village.
03. A.1 and A.2 had acquaintance with A.3 since A.3 is a priest in the temple of Goddess at Gullavanipeta, Polaki Mandal.
04. While so, the father and the family members of the victim girl could know that she was moving with A.1 and they admonished the victim girl. They made a proposal to perform the marriage of the victim girl with another boy and the marriage date was fixed as 21.08.2016. The victim girl was informed about the said marriage.
A.1 and A.2 advised the victim girl to reveal the information to the
Child Line by calling No.1098 and accordingly she called the Officers of Child Line and they visited Kasturipadu and gave counseling to the father and the family members of the victim girl and asked them not to perform the marriage since the victim is a minor. Then the parents of the victim girl postponed the marriage.
05. While things stood thus, A.1 with the help of A.2 had taken away the victim girl to Gullavanipeta village and sought for the help of A.3. A.2 and A.3 booked two train tickets from
Amadalavalasa to Assam to proceed by Amaravathi train. As per the direction of A.1 to A.3, the victim girl left the home furtively by 4 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
taking cash of Rs.35,000/- and gold ornaments on 22.08.2016 and reached Kothapeta bus stand. A.1 took her to Narasannapeta by riding his motor cycle and from there A.2 and A.3 took the victim girl to Amadalavalasa railway station. Then A.2 and A.3 took the victim girl to Assam by Amaravathi train and they boarded there on 22.08.2016 at Amadalavalasa. A.2 accompanied A.3 and the victim girl up to Berhampur of Odisha state. The victim girl gave
Rs.15,000/- to A.2 to extend his assistance. A.3 took the victim girl to Assam via Kolkota.
06. Meanwhile, A.3 received information that the father of the victim girl gave a report to Kotabommali police and the police were searching for him. Thus, A.3 returned home along with the victim girl from Assam and later he escaped.
07. Later, the father of the victim girl came to the police station along with the victim girl on 25.08.2016 and presented a report. The report was registered as Crime No. 88/2016 and it was investigated into. Hence, the charge sheet.
08. This case was taken on file against A.1 and A.2 for the offences punishable under Section 363 of the Indian Penal Code and
Section 11 R/w 12 of the Protection of Children from the Sexual
Offences Act. The cognizance was not taken against A.3 since A.3 died.
09. The accused made their appearance on receiving summonses and they were furnished with copies of documents. The
Special Public Prosecutor opened the case under section 226 of the
Indian Penal Code by describing the charges brought against the 5 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
accused and by what evidence he proposes to prove the guilt of the accused.
10. Charge under Section 11 R/w 12 of the Protection of
Children from the Sexual Offences Act was framed against A.1, charge under section 16 R/w 17 of the Protection of Children from the Sexual Offences Act was framed against A.2 and charge under
Section 363 of the Indian Penal Code was framed against A.1 and
A.2 and the accused did not plead guilty and claimed for trial.
11. The prosecution listed 18 witnesses and examined PW.1 to P.W.9. Exs.P.1 to P.10 and M.O.1 Hero Honda motor cycle were marked on behalf of the prosecution. The listed witnesses Karri
Anuradha (LW.2), Duppala Laxminarayana (LW.5), Karri Padmavathi (LW.6), Gorivelli Chinnammadu (LW.8), Gorivelli Chinna Rao (LW.9) and Kurmana Simhachalam (LW.10) were given up by the Special
Public Prosecutor to avoid repetition of the evidence. The Judicial
Magistrate of 1st Class, Narasannapeta, Tahsildar of Polaki Mandal
and the Sub Inspector of Police, Kotabommali (LW.18) who resubmitted the charge sheet, were given up by the Special Public
Prosecutor.
12. After closure of prosecution side evidence, the accused were examined under Section 313 of Cr.P.C. by putting incriminating evidence and they denied the same. They reported no defence evidence.
13. The points for determination are:
1.Whether the prosecution has established that the victim was a minor girl on the date of alleged offence?
6 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
2.Whether the prosecution has established that the accused had taken away the minor i.e., victim from the lawful custody of her parents without their consent?
3.Whether the prosecution has established that A.1 sexually harassed the victim girl?
4.Whether the prosecution has established that A.2 abetted A.1 for sexual harassment of the victim girl?
5.Whether the prosecution has proved the case against the accused beyond reasonable doubt?
14. To ground the charges, the prosecution examined the father of the victim girl and the victim as P.W.1 and P.W.2 respectively. P.W.3 is the mother-in-law of P.W.1 and maternal grand mother of PW.2-victim girl. PW.4 is an independent witness.
PW.5 is the mediator. PW.6 is the Medical Officer who examined the person of the victim girl to determine her age. PW.7 is the Woman
Head Constable who enquired and recorded the statement of the victim girl. PW.8 is the Assistant Sub Inspector of Police who registered the Crime 86/2016 on receiving report from the parents of the victim girl. PW.9 is the Sub Inspector of Police who took up further investigation and charge sheeted the accused.
15. POINT No. 1:
P.W.1 is the father of the victim girl and he deposed the victim girl was 17 years on the date of alleged offence. The victim girl left the home furtively when she was aged 17 years by taking cash of
Rs.35,000/- and gold ornaments. The victim girl deposed that she left the home furtively and she was studying 2nd year intermediate by then and she was aged 16 years. The Medical Officer who 7 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
examined the person of the victim girl Dr. Sadhu Rammohana Rao i.e., PW.6 deposed he conducted dental and radiological examination to know the age of the victim girl and after conducting the said examination, he opined that the victim girl is aged in between 15 and 17. He was suggested by the accused during cross-examination that the margin may be either on higher side or lower side. But the victim girl was not suggested anything regarding her age during cross-examination. As seen from the cross-examination of the victim girl, A.1 married her with her consent and they begot a female child and she has been living with her husband. Her age was not disputed by the accused and no suggestion that she was a minor on the date of alleged offence, was put to the victim girl and to her father. In the absence of such suggestion, I do not find any reason to doubt the testimony of the victim girl and her father. The father of the victim girl is competent to speak about the age of the victim girl.
In view of the un-shattered evidence of the victim girl and her father regarding the age, I hold that she was a minor on the date of alleged offence. I, therefore, answer this point in the affirmative and in favour of the prosecution.
16. POINTS No. 2 to 4:
As seen from the evidence of PW.1-father of the victim girl, he did not speak anything about the complicity of the accused.
He stated that his daughter left the home furtively when she was 17 years and she had taken away cash of Rs.35,000/- and gold ornaments. She returned home 4 or 5 days thereafter along with the property and cash. When he enquired the victim girl, the victim girl 8 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
told him that marriage proposal made by him is much against her liking and thus she left the home with the person whom she likes.
He further deposed that the victim girl told him that she had gone with one Simhadri. He further stated that again the victim girl left the home without informing him and she did not reveal where she stayed.
17. As seen from the aforementioned evidence, it is discernible that the accused did not inveigle the victim girl as alleged by the prosecution. The victim girl left the home on her volition. The evidence of PW.1 is silent about the allurements and blandishments said to have been made by the accused.
18. PW.2 is the victim girl and she deposed that when she was studying intermediate, her parents proposed for her marriage with a boy and much against her liking and thus she left the home by boarding a train with somebody unknown to her. She went to
Kolkota. She returned home 4 or 5 days thereafter. She told her parents that she left the home impulsively and without any thinking.
As seen from her evidence, it is evident that the accused are not responsible in anyway for her leaving the home furtively.
19. PW.3 is the grand mother of the victim girl. She did not speak anything about the complicity of the accused. She deposed that the victim girl studied 2nd year intermediate by staying at her house at Kotabommali. She left the home on one day on the pretext to attend the college and thereafter she did not return home. She searched for her but in vain. Her evidence is not conducive in any 9 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
way except to establish the fact that the victim girl did not return home after leaving the home to attend the college.
20. PW.4 is one of the neighbours of PW.3. She did not state anything about the alleged offence. She expressed her innocence about the alleged offence. I, therefore, hold her evidence is of no avail. PW.5 is the Village Revenue Officer in whose presence A.1 was arrested and confessed the offence before the police. In pursuance of the said confession, they were left for the house of A.1 and there the police seized MO.1 motor cycle from the possession of A.1. The factum of arrest of the accused is not in dispute. The confession given before police in the presence of the mediators is inadmissible in evidence under Section 26 of the Indian Evidence Act. PW.7 is the Woman Head Constable who enquired the victim girl and recorded her statement.
21. PW.8 is the Assistant Sub Inspector of police who registered the report given by PW.1 as a Crime No.86/2016. PW.9 is the Investigating Officer. As seen from the evidence of PW.8 and
PW.9 it is manifest that the investigation was done swiftly and they enquired all the witnesses forthwith after registration of the crime.
The Investigating Officer acted swiftly by producing the victim girl
before the Magistrate concerned to record her statement under
Section 164 of Cr.P.C. and also took her to the Doctor for determination of age and for examination of her person as per the guidelines of the Hon'ble Apex Court. Nothing concrete was elicited in the cross-examination to show that the investigation done by
PW.8 and P.W.9 is ham-handed. But the evidence of the 10 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
Investigating Officers-PW.8 and PW.9 is of no avail in the teeth of the evidence of PW.1 and the victim girl-PW.2. They did not support the case of prosecution and as per their evidence, the victim girl left the home on her volition and she did not go with the accused and she boarded the train with some unknown person. I, therefore, answer these points in the negative and against the prosecution.
22. POINT No.5:
In view of the above discussion on Points No.2 to 4 , I hold the prosecution has failed to establish the case against the accused beyond reasonable doubt
Accordingly, I answer this point.
23. In the result, I find A.1 and A.2 not guilty for the offence punishable under Section 363 of Indian Penal Code, I find A1 not guilty for the offence punishable under Section 11 R/w 12 of
Protection of Children from Sexual Offences Act and I find A.2 not guilty for the offence punishable under Section 16 R/w 17 of the
Protection of Children from Sexual Offences Act and they are acquitted under Section 235 (1) of the Criminal Procedure Code.
The case property MO.1 shall be returned to A.1 after appeal time is over.
Dictated to the Stenographer, transcribed by him,
corrected and pronounced by me in open court, this the 07th day of February, 2019.
Special Judge for trial of Cases
under the Protection of Children from Sexual Offences Act, 2012 -Cum- 1st Addl. District & Sessions Judge, Srikakulam.
11 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
APPENDIX OF EVIDENCE.
WITNESSES EXAMINED
For Prosecution: For Defence:
P.W. 1: Karri Venugopala Rao -none- P.W. 2: Victim girl P.W. 3: Duppala Appa Rao P.W. 4: Duppala Kalavathi P.W. 5: Moyii Ekasi, V.R.O. P.W. 6: Dr.Sahu Rammohana rao P.W. 7: Smt,V.Ramalakshmi, Woman H.C. P.W. 8: Metta Chandra rao, A.S.I of Police P.W. 9: G.Narayanaswamy, S.I. of Police
DOCUMENTS MARKED
For Prosecution:
Ex.P.1/25.08.2016: Report given by PW.1 to the police. Ex.P.2/29.08.2016: Statement of the victim girl-PW.2 recorded by PW.7 Woman Head constable Ex.P.3/03.09.2016: Confession statement of A.1 Ex.P.4/03.09.2016: Age determination certificate of the victim girl. Ex.P.5/25.08.2016: First Information Report in Crime No. 86/2016 of Kotabommali police station sent to the court. Ex.P.6/06.04.2017: Section 161 Cr.PC statement of the victim girl recorded by Judicial Magistrate of 1st Class, Narasannapeta. Ex.P.7/29.08.2016: Section 161 Cr.PC statement of PW.1. Ex.P.8/29.08.2016: Section 161 Cr.PC statement of LW.2-Karri Anuradha Ex.P.9/26.08.2016: Section 161 Cr.PC statement of PW.3 Duppala Appa Rao
Ex.P.10/26.08.2016:: Section 161 Cr.PC statement of Duppala Laxmi Narayanamma (LW.5) For Defence: NIL
Material objects marked
MO.1: Hero Honda motor cycle bearing No.AP 35 H 5943
Special Judge for trial of Cases
under the Protection of Children from Sexual Offences Act, 2012 -Cum- 1st Addl. District & Sessions Judge, Srikakulam 12 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
CALENDAR
IN THE COURT OF SPECIAL JUDGE FOR TRIAL OF CASES UNDER
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,
2012- CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE,
SRIKAKULAM.
Present: Sri U. SATYA RAO,
SPECIAL JUDGE FOR TRIAL OF CASES UNDER THE PROTECTION
OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012-CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE, SRIKAKULAM
THURSDAY, THIS THE 07th DAY OF FEBRUARY, 2019
SESSIONS CASE No. 5/2018
(Crime No. 86/2016 of Kotabommali Police Station)
Between:
State represented by the Sub Inspector of Police, Kotabommali police station.
Complainant.
And:
1.Chitta Damodara Rao @ Simhadri @ Siva, S/o late Yerrayya, 18 years, SC/Mala byc aste of Yetturallapadu village, Kotabommali Mandal. (A.1)
2.Kirri Raju @ Rajkumar, S/o Chittayya, 19 years, SC/Mala by caste ofNimmiada junction, Peddabammidi panchayati, Kotabommali Mandal. (A.2)
3.Dummu Nageswara Rao @ Vasantha Rao, S/o Laxmayya, 34 years, Vadabalija by caste of Gullavanipeta village, Polaki Mandal (A.3) (DIED) Accused.
Prosecution was conducted by: Sri K.Tirumala Rao Special Public Prosecutor, Srikakulam.
Accused was defended by: Smt. L.Laxminarasamma, Advocate, Srikakulam.
Offences: Under Section 376 (2)(i) of the Indian Penal Code and Section 3
(a) R/w 4 of Protection of Children from Sexual Offenses Act, 2012.
13 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
Plea of accused: Pleaded not guilty.
Finding of the Judge: Found not guilty.
Date of offence: 22.08.2016
Date of report or complaint: 25.08.2016 (24.05.2017 charge sheet filed)
Date of appearance of accused: 15.02.2018
Date of commencement of trial: 10.01.2019
Date of close of trial: 18.01.2019
Date of sentence or order: 07.02.2019.
Sentence or order:
In the result, I find A.1 and A.2 not guilty for the offence punishable under Section 363 of Indian Penal Code, I find A1 not guilty for the offence punishable under Section 11 R/w 12 of Protection of Children from Sexual Offences Act and I find A.2 not guilty for the offence punishable under Section 16 R/w 17 of the Protection of Children from Sexual Offences Act and they are acquitted under Section 235 (1) of the Criminal Procedure Code. The case property MO.1 shall be returned to A.1 after appeal time is over.
Explanation for delay: -
Police filed charge sheet before this court on 24.05.2017 and after return, it was resubmitted on 30.01.2018 and the same is taken into cognizance on 31.01.2018 and on 15.02.2018 A.1 and A.2 made their appearance and copies of case documents furnished to them and on 14.12.2018 the accused were examined under Section 228 Cr.PC and charges for the said offences were framed and the said charges were read over and explained to them in Telugu and they pleaded not guilty and claimed to be tried and hence case is posted for trial. On 10.01.2019 PWs.1 to 4 and on 11.01.2019 PWs. 5 to 9 were examined and prosecution side evidence was closed. On 18.01.2018, A.1 and A.2 were examined under Section 313 14 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
(1)(b) Cr.PC and they denied the incriminating material placed against them and they reported no evidence and hence trial is closed. On 30.01.2019 arguments heard and on 04.02.2019 judgment is pronounced.
SPECIAL JUDGE FOR TRIAL OF CASES
UNDER THE PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES ACT, 2012-CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE,
SRIKAKULAM
15 SC No. 5/2018 (POCSO), Dt. 07.02.2019 1st Addl. District Court, Srikakulam.
IN THE COURT OF SPECIAL JUDGE FOR TRIAL OF CASES UNDER THE
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012- CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE, SRIKAKULAM.
Present: Sri U. SATYA RAO,
SPECIAL JUDGE FOR TRIAL OF CASES UNDER THE PROTECTION
OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012-CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE, SRIKAKULAM
WEDNESDAY, THIS THE 06th DAY OF FEBURARY, 2019
SESSIONS CASE No. 10/2018
(Crime No. 135/2017 of Kasibugga Police Station)
Between:
State represented by the Sub Inspector of Police, Kasibugga
Complainant. And:
Jogi Suresh, S/o late Chiranjeevi alias Chiramjeevulu, Aged 22 years, Segidi by caste, Sasanam village, Palasa Mandalam, Srikakulam district. Accused.
Prosecution was conducted by: Sri K.Tirumala Rao Special Public Prosecutor, Srikakulam.
Accused was defended by: Sri P.S.Gandhi, Advocate, Srikakulam.
Offences: Under Section 354-D of the Indian Penal Code and Section 11 (iv) R/w 12 of Protection of Children from Sexual Offenses Act, 2012.
Plea of accused: Pleaded not guilty.
Finding of the Judge: Found not guilty.
Sentence or Order: In the result, I find the accused not guilty for the offences punishable under Section 354-D) of the Indian Penal Code and Section 11 (iv) R/w 12 of the Protection of Children from the Sexual Offences Act and he is acquitted under Section 235 (1) Cr.P.C.
2 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
The unmarked case property if any, shall be destroyed after appeal time is over.
This case came on 30.01.2019 for final hearing before me in the presence of Sri K.Tirumalarao, learned Special Public Prosecutor for the complainant/State and Sri P.S.Gandhi, learned Advocate for the accused and having heard both sides and having stood over till this day for consideration, this court delivered the following:
J U D G M E N T
01. The Sub Inspector of Police, Kasibugga police station charge sheeted the accused in Crime No.135/2017 of Kasibugga police station alleging that he committed the offences punishable under
Section 354-D of the Indian Penal Code and Section 11 R/w 12 of the
Protection of Children from Sexual Offenses Act.
02. The provinance of the case facts is, the accused developed lust towards the victim girl and followed her and pressurized her to love him and made pestering demands to love him or otherwise he would cut his hand and thereby caused mental agony to the victim girl. The victim girl placed the matter before her parents and her parents raised a dispute before the elders. The accused admitted his guilt in the presence of the elders and assured the elders that he would not follow the victim girl and again he continued following her.
03. While so, on 11.09.2017 at 02.00PM, when the victim girl along with others was playing, the accused came on bike and pressurized the victim girl to sit on the bike to follow him and when the victim girl declined to do so, the accused proclaimed that he would put an end to his live. The conversation was witnessed by Vodarevu
Ashok and he informed the same to the father of the victim girl. The accused the fled away from there. The father of the victim girl gave 3 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
report to the police. It was registered as Crime No. 135/2017. The crime was investigated into and the accused was charge sheeted.
04. This case was taken on file against the accused for the offences punishable under Section 354-D of the Indian Penal Code and
Section 11 R/w 12 of the Protection of Children from the Sexual
Offences Act.
05. The accused made his appearance on receiving summons and he was furnished with copies of documents. The Special Public
Prosecutor opened the case by brining out the charges against the accused and by what evidence he proposes to prove the guilt of the accused.
06. Charges under Section 354-D of the Indian Penal Code and
Section 11 (iv) R/w 12 of the Protection of Children from the Sexual
Offences Act were framed against the accused and the accused did not plead guilty and claimed for trial.
07. The prosecution listed 14 witnesses and examined PW.1 to
P.W.8. Exs.P.1 to P.8 were marked on behalf of the prosecution. The listed witness LW.3-Neelapu Nagamani was given by the Special Public
Prosecutor since the examination of the said witness would amounts repetition of the evidence.
08. After closure of prosecution side evidence, the accused was examined under Section 313 of Cr.P.C. by putting incriminating evidence and he denied the same. He filed letters addressed by the victim girl to him along with a memo.
4 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
09. The points for determination are:
1.Whether the prosecution has established that the accused attempted to contact the victim girl to foster her personal interaction repeatedly despite a clear indication of disinterest by the victim?
2.Whether the prosecution has established the sexual harassment said to have been caused by the accused?
3.Whether the prosecution has established that the victim girl is a child as defined in the Protection of Children from Sexual Offences Act?
4.Whether the prosecution has proved the case against the accused beyond reasonable doubt?
10. POINT Nos.1 to 3 :
The victim girl (PW.1) deposed in her evidence when she was studying 9th class in Govt. High school at Palasa in the year 201, the accused used to follow her and he used to visit her house to meet her father. She objected for it and then the accused expressed his love.
She informed the said fact to her parents and the matter was placed
before the elders namely Kuppili Kamaraju and Kotta Janardhana and
they enquired the accused in her presence. The accused assured in their presence that he would not continue the same and later for about 5 months, he did not follow her. But again on 11.09.2017 at 02.00PM, the accused came to the school when she was parking her cycle and asked her to board his bike for which she refused. Her friend Teki
Devi was present by then. Then the accused cut his hand with blade insisting her to follow him on his bike. Her father's friend Vadarevu
Ashok noticed it and he telephoned her father and informed the said fact and the accused left the school ground.
5 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
11. It was elicited in the cross-examination Ex.P.1 report did not contain the recital that the accused cut his hand with a blade insisting her to follow him on the bike. She admitted that she cut her hand with a blade in connection with an altercation that took place in between her mother and herself. It happened after the accused was enlarged on bail and came out from the jail. She also admitted that she felt cheated her parents and for that she cut her hands. She wrote letters to the accused, the police enquired her with regard to those letters and advised both the parties to compromise the matter. She further stated the accused also addressed letters to her. The accused stopped stalking with her after the said compromise. She denied the suggestion that she wrote letters to the accused with the blood by inflicting self injury and asked the accused to write letters in the same manner.
12. In view of the aforementioned facts elicited in the cross- examination, it is evident that both of them fell in love with each other and there was letter correspondence. The letters filed by the accused during Section 313 Cr.P.C. examination divulge that the victim girl persuaded the accused and she took initiative when the accused remained silent and there was persistent and pestering demands from the side of the victim girl insisting the accused to keep in touch with her. Had really the accused threatened her to cut his hand and made such an attempt with a blade it could have been recited in Ex.P.1 report, but Ex.P.1 report is silent as per the facts elicited in the cross- examination of the witness. This is a material fact and the witness has 6 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
given a go-bye to the said fact while setting the law into motion by giving report to the police.
13. P.W.2 is the father of the victim girl and he did not speak anything against the accused. His evidence is totally silent about the role played by the accused. He stated when P.W.1 was studying 8th class, she informed on one day that in the month of January, 2016 the accused was following her while going to the school and he was trying to contact with her at school. Then he enquired the accused and the accused replied that he was not following the victim girl. He stated that he placed the matter before the elders Kuppili Kamaraju and Kotta
Janardhana and they enquired the accused in his presence. The accused assured that he would not follow the victim girl thereafter. For about 6 or 7 months, the accused kept quiet. While so, on 11.09.2017, he received phone call at about 1.45PM from one Ashok. Ashok informed him over phone that one person is teasing her daughter and then immediately he went to the school and brought PW.1 back to home. This is the kernel of the evidence of this witness. It is, therefore, evident that he did not state anywhere in his evidence that
Ashok informed him that the accused took away P.W.1 nor P.W.1 told him that the accused took her by riding the motor cycle despite she resisted for it. In the teeth of his evidence, the evidence of PW.1-victim girl is skeptic. Moreover, in view of the letters added by her, which were filed along with memo by the accused, she coaxed the accused to be in touch with her despite the fact he remained silent and trying to keeping away himself from her.
7 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
14. P.W.3 who is the cousin of P.W.2 deposed that PW.2 approached him in the month of November, 2017 and informed him that the accused was teasing his daughter. Then he informed the matter to the mother of the accused. The mother of the accused assured that she would prevent the accused from proceeding further.
He did not speak anything about the alleged incident said to have been happened on 11.09.2017. As seen from the evidence of PW.2, the accused assured before the elders that he would not follow the victim girl and accordingly he stopped to follow the victim girl. He did not state elsewhere in his evidence that on 11.09.2017, the accused took away the victim girl by riding motor cycle. As seen from the evidence of PW.2 and PW.3, the accused stopped to follow the victim girl as per the assurance given by him before the elders and thereafter no incident whatever much less the alleged act said to have been committed by the accused on 11.09.2017 happened. I, therefore, hold their evidence improbablizes the prosecution version and confutes the evidence of PW.1.
15. PW.4 is the classmate of the victim girl. She deposed on 11.09.2017 at 02.00PM, the victim girl and herself together went to the school ground to take drinking water and the accused came there on bike and demanded P.W.1-victim girl to accompany him on his bike or otherwise he would cut his hand. P.W.1 refused to accompany him and the accused inflicted self injury on his hand with a blade. She suggested PW.1 to go to the class. The incident that the accused inflicted self injury on his hand with a blade was not alleged in Ex.P.1 report as per the evidence of PW.1. There was a dispute raised before 8 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
the elders and the latches on the part of the accused were condoned in the panchayat since he gave unconditional undertaking not to follow the victim girl. As seen from the evidence of PW.2, the accused did not follow the victim girl thereafter and on 11.09.2017 he was phoned by
Ashok that one person was teasing her daughter at the school and he did not state specifically elsewhere in his evidence that the said person is no other than the accused. I, therefore, hold that it is not sagacious to rely on the evidence of PW.4.
16. P.W.5 is the material witness and Ashok who phoned
P.W.2-father of the victim girl. He deposed on 11.09.2017 at about 02.00PM, he noticed PW.1 and one person at his village Mogilapadu while they were proceeding on a bike. Then he identified P.W.1 and phoned P.W.2 that P.W.1 was going along with one boy on bike. P.W.1 perturbed on seeing him. He did not state elsewhere that the said boy is no other than the accused. His evidence corroborated the evidence of PW.2 that he found the victim girl in the company of boy. Since there is no specific allegation against the accused that he took the victim girl by riding motor cycle and since the evidence of PW.2 and
P.W.5 Ashok, is silent about the complicity of the accused, I hold that the evidence of PW.1 cannot be given much credence. Moreover, there is incompatibility in her evidence for the reasons mentioned supra. I, therefore, hold her evidence does not inspire confidence.
17. P.W.7 followed P.W.2 to trace the P.W.1 and he found P.W.1 at the college ground of Govt. High school, Palasa. He did not state anything about the complicity of the accused. His evidence is of no 9 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
avail except to prove that PW.1-victim girl was available at college ground on 11.09.2017. PW.7 is the mediator in whose presence the scene of offence was observed. He did not support the case of prosecution. Nothing concrete was elicited in the cross-examination by the Special Public Prosecutor. I, therefore, hold his evidence is of no avail.
18. PW.8 is the Investigation Officer who registered the crime on receiving report from PW.1 and recorded her statement and so also the statements of her parents i.e., PW.2 and Nagamani. He instructed the woman police constable to enquire and record the detailed statement of the victim girl and she recorded the statement and later he went to the house of K. Kamaraju and enquired him and also enquired PW.3 to PW.6 and recorded their statements.
19. He examined the Head Master D.Rama Rao and obtained date of birth particulars of the victim girl. But he was not examined by the prosecution. The date of birth certificate was marked as Ex.P.8.
Since it is a document which falls under the ken of clause (d) of
Section 65 of the Indian Evidence Act which is to be prepared garning information from various registers like admission register, admission form filled in by the parents of the ward and also certificates register, the examination of the maker of the certificate is indispensable. I, therefore, hold no probative value can be attached to Ex.P.8 date of birth certificate since the maker is not examined. I, therefore, find substance in the contention of the accused that the prosecution has failed to establish that the victim was a child on the alleged date of 10 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
incident. I, therefore, hold the Protection of Children from Sexual
Offences Act is not applicable to the present case. The evidence of the
Investigating Officer is steadfast and un-clinching. But his evidence is of no avail in the teeth of the evidence of the father of victim girl-PW.1 i.e., PW.2 and PW.5 material witnesses. I, therefore, hold in view of the aforementioned discussion, I hold that the prosecution has failed to establish the case against the accused.
I, answer the points No.1 to 3 in the negative and against the prosecution.
20. POINT No.4:
In view of the aforementioned discussion on Points No.1 to 3, I hold the prosecution has failed to establish the case against the accused beyond reasonable doubt.
21. In the result, I find the accused not guilty for the offences punishable under Section 354-D of the Indian Penal Code and Section 11 (iv) R/w 12 of the Protection of Children from the Sexual Offences
Act and he is acquitted under Section 235 (1) Cr.P.C.
The unmarked case property if any, shall be destroyed after appeal time is over.
Dictated to the Stenographer, transcribed by him, corrected
and pronounced by me in open court, this the 06th day of February, 2019
Special Judge for trial of Cases
under the Protection of Children from Sexual Offences Act, 2012 -Cum- 1st Addl. District & Sessions Judge, Srikakulam.
11 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
APPENDIX OF EVIDENCE.
WITNESSES EXAMINED
For Prosecution: For Defence:
P.W. 1: Victim girl -none- P.W. 2: Neelapu Chinna Rao P.W. 3: Kotta Janardhana P.W. 4: Teki Devi P.W. 5: Vadarevu Ashok P.W. 6: Kotta Srikanth P.W. 7: Bandaru Srinu P.W. 8: M.S.V.Prasada Rao, SI of Police (IO)
DOCUMENTS MARKED
For Prosecution
Ex.P.1/12.09.2017: Report given by the victim girl to the police` Ex.P.2/13.09.2017: Section 161 Cr.PC statement of PW.3. Ex.P.3/13.092017 Section 161 Cr.PC statement of PW.3. Ex.P.4/13.09.2017: Signature of PW.7 in the scene observation report. Ex.P.5/12.09.2017 First Information Report in Crime No.135/2017 of Kasibugga police station sent to the court. Ex.P.6/13.09.2017: Scene observation report. Ex.P.7/13.09.2017 Rough sketch of the scene of offence Ex.P.8/13.09.2017 Study certificate of the victim girl issued by Head Master, Govt. High School, Palasa mentioning the date of birth of the victim girl.
For Defence: NIL
Material objects marked
NIL
Special Judge for trial of Cases
under the Protection of Children from Sexual Offences Act, 2012 -Cum- 1st Addl. District & Sessions Judge, Srikakulam 12 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
CALENDAR
IN THE COURT OF SPECIAL JUDGE FOR TRIAL OF CASES UNDER THE
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012- CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE, SRIKAKULAM.
Present: Sri U. SATYA RAO,
SPECIAL JUDGE FOR TRIAL OF CASES UNDER THE PROTECTION
OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012-CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE, SRIKAKULAM
WEDNESDAY, THIS THE 06th DAY OF FEBURARY, 2019
SESSIONS CASE No. 10/2018
(Crime No. 135/2017 of Kasibugga Police Station)
Between:
State represented by the Sub Inspector of Police, Kasibugga
Complainant. And:
Jogi Suresh, S/o late Chiranjeevi alias Chiramjeevulu, Aged 22 years, Segidi by caste, Sasanam village, Palasa Mandalam, Srikakulam district. Accused.
Prosecution was conducted by: Sri K.Tirumala Rao Special Public Prosecutor, Srikakulam.
Accused was defended by: Sri P.S.Gandhi, Advocate, Srikakulam.
Offences: Under Section 354-D of the Indian Penal Code and Section 11 (iv) R/w 12 of Protection of Children from Sexual Offenses Act, 2012.
Plea of accused: Pleaded not guilty.
Finding of the Judge: Found not guilty.
Date of offence: 11.09.2017
Date of report or complaint: 12.09.2017 (25.01.2018 charge sheet filed)
Date of appearance of accused: 19.06.2018 13 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
Date of commencement of trial: 04.12.2018
Date of close of trial: 26.12.2018
Date of sentence or order: 06.02.2019.
Sentence or order: In the result, I find the accused not guilty for the offences punishable under Section 354-D of the Indian Penal Code and Section 11 (iv) R/w 12 of the Protection of Children from the Sexual Offences Act and he is acquitted under Section 235 (1) Cr.P.C. The unmarked case property if any, shall be destroyed after appeal time is over.
Explanation for delay: -
Police filed charge sheet before this court on 25.01.2018 and the same is taken into cognizance and on 19.06.2018 accused made his appearance and copies of case documents furnished to him and on 22.11.2018 the accused is examined under Section 228 Cr.PC and charges for the said offences are framed and the said charges are read over and explained to him in Telugu and he pleaded not guilty and claimed to be tried and hence case is posted for trial. On 04.12.2018 PW.1 to PW.5 and on 05.12.2018 PWs.6 to PW.8 are examined and prosecution side evidence is closed and on 04.12.2018, the accused is examined under Section 313 (1)(b) Cr.PC and he denied the incriminating material placed against him and he reported no evidence and hence trial is closed. On 30.01.2019 arguments heard and on 06.02.2019 judgment is pronounced.
SPECIAL JUDGE FOR TRIAL OF CASES UNDER
THE PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT, 2012-CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE,
SRIKAKULAM
14 SC No. 10/2018 (POCSO), Dt. 06.02.2019 1st Addl. District Court, Srikakulam.
IN THE COURT OF 1ST ADDITIONAL DISTRICT JUDGE, SRIKAKULAM.
PRESENT: Sri U. SATYA RAO, 1ST ADDL. DISTRICT JUDGE,
SRIKAKULAM.
FRIDAY, THIS THE 15th DAY OF FEBRUARY, 2019
A.S. No. 14/2015
Between:
Kamireddy Nagaratnam, W/o Rama Rao, Aged 64 years, Hindu, household duties, REsiding at Radhakrishnapuram village, Amadalavalasa Mandal, Srikakulam district.
Appellant/Plaintiff And:
1.Jalumuru Ravibabu, S/o late Viswanadham, Aged 48 years, Working as Parttime lecturer and Real estate busienss, R/o Poujaripeta street, MRO Office Road, Amadalavalasa Municipality and Mandal, Srikakulam district.
2.Deepala Sanyasi Lingam, S/o not known, aged 72 years, Hindu, Tailoring, Residing of Radhakrishnapuram, Kollivalasa panchayat, Amadalavalasa Mandalam, Srikakulam district.
Respondents/defendants.
Appeal filed against the and Judgment made in O.S. No.
31/2011 dated 31.12.2014 on the file of the Court of Junior Civil
Judge, Amadalavalasa.
Between:
Kamireddy Nagaratnam Plaintiff. And:
1.Jalumuru Ravibabu
2.Deepala Sanyasi Lingam Defendants.
This appeal coming on 04.02.2019 for final hearing before me in the presence of Sri J.Govinda Rao, Sri G.Santharam, and Sri P.Ramesh Kumar, learned Advocate for the appellant and of Sri P.V.Ramana Dayal, learned Advocate for the respondent and having heard both sides and stood over till this day for consideration, this court made the following:
…2…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019
J U D G M E N T
01. This is an appeal preferred by the unsuccessful plaintiff assailing the decree and judgment dated 31.12.2014 in OS No.
31/2011 passed by the Junior Civil Judge, Amadalavalasa.
02. The suit was filed for permanent injunction to restrain the defendants from interfering with the possession and enjoyment of the plaint schedule property by the plaintiff.
03. The parties are arrayed as depicted in the suit for the sake of convenience.
04. The material averments stemming from the plaint are, the plaintiff purchased the suit schedule property under registered sale deed dated 14.05.1992 from one Palakonda Raghavacharyulu and his son Krishna Chaitanya of Deevangipeta village. Ever since she has been in possession and enjoyment of the suit schedule property. The extent of suit property is Ac.0.04 cents in Survey No. 458-A and old
Survey No. 179/1 of Syalada revenue village, Kollivalasa panchayat.
05. It was mistakenly recited in the sale deed the Survey
No.179/2 instead 179/1. The said mistake was rectified by the rectification sale deed dated 21.01.2008 executed in favour of the plaintiff by his vendor.
06. The defendants 1 and 2 colluded with each other and they have been making efforts to dispossess the plaintiff from the suit property and they have been making such proclamations in and around the village. Hence, the suit.
…3…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019
07. The defendants filed written statement denying the material averments of the plaint and submitting that the land in Survey
No.179/1 and the land in Survey No.179/3 belonged to the defendants 1 and 2 respectively. 2nd defendant is houseless poor and she occupied the land vested in government long back and recognizing her possession, the Mandal Revenue Officer issued possession certificate on 28.11.2006 permitting the 2nd defendant to construct a house therein. The property of the 1st defendant in Survey No.179/1 is situated on the western side of the property of the 2nd defendant. It was purchased under registered sale deed dated 23.09.1999 from
Gudla Vykunta Rao. The said Gudla Vykunta Rao purchased the property from Tammana Rama Rao under registered sale deed dt.28.8.1993. Tammana Rama Rao is no other than husband of the
Tamanna Rambhai, who was shown as northern side boundary owner to the suit property.
08. Neither the plaintiff nor her vendor was never in possession and enjoyment of the suit property at any point of time.
The alleged sale deed dated 14.05.1992 and the rectification sale deed
dated 21.01.1988 were brought into existence to grab the suit
property. There is no cause of action to file the suit.
09. On the strength of the aforementioned pleadings, the following issues were settled for trial:
1.Whether the plaintiff is entitled to the relief of permanent injunction?
2.To what relief?
…4…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019
10. In the trial afforded to both the parties, the plaintiff examined herself as P.W.1 and one Banna Barikivadu was examined as P.W.2. Ex.A.1 to Ex.A.15 were exhibited on behalf of the plaintiff.
The defendants 1 and 2 were examined as DWs.1and 2 respectively.
Exs.B.1 toB.6 were exhibited on behalf of the defendants.
11. Given the evidence let in by the parties to the suit, the lower court passed the decree and judgment and aggrieved by the said decree and judgment, the unsuccessful plaintiff preferred the present appeal.
12. As seen from the appeal grounds, the lower court ought to have seen that the plaintiff alone has got right, title and possession in the suit property by virtue of Exs.A.1 and A.2 sale deeds. The lower court ought to have considered that Exs.A.4 to A.9 are link documents to Ex.A.1 and the Item No. 7 in Ex.B.1 corresponds to the property covered by Ex.A.9 and the extent is Ac.0.19 cents in Survey No. 583/1 and it is one lot and whereas it was divided into two plots under
Ex.B.1. There is incompatibility in the extents mentioned in x.B.1 and
Ex.A.9 and the lower court did not consider the said aspect.
13. The lower court ought to have considered that Ex.A.11 juxtaposed with Ex.B.1 correlated with the old Survey No. 583/1 and new Survey Nos. 238/14 and 15. The lower court failed to consider the said aspect.
14. The lower court ought to have considered Ex.A3, Ex.A.12 and Ex.A.13 adangals evidencing the possession of the suit property by the plaintiff.
…5…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019
15. Given the appeal grounds and the contentions of the parties to the suit, the points for determination are:
1.Whether the plaintiff has established that she was in possession of the suit property on the date of filing of the suit?
2.Whether the lower court failed to consider the alleged incompatibility regarding extent of Item No. in Ex.B.1 juxtaposed with Ex.A.9 document?
3.Whether the lower court failed to consider conjoint reading of Ex.A.11 and Ex.B.1 clinchilngly establishes the old Survey No. 583/1 is correlated to new Survey No. 238/14 and 15?
4.Whether the judgment of the lower court needs any interference?
16. POINTS No.1 to 3:
To shore up her contention, the plaintiff examined herself as P.W.1 and she filed an affidavit in lieu of examination in chief affirming all material averments of the plaint. She asserted she purchased the suit property under a valid registered sale deed dt.14.05.1992 and it was recited mistakenly the Survey No. as 179/2 instead 179/1 and the mistake was rectified by getting the rectification sale deed on 21.01.2008 by the vendor of the plaintiff.
17. It was elicited in the cross-examination, she cannot say the name of the person against whom she filed the suit. Perhaps, he may be J.J. Mohana Rao. There is Vydyalu Narasayya tank on the west to the suit property. The property of Tammana Rambhai, W/o
Rama Rao is situated towards north to the suit property. Tammana
Rambai sold away the property to one Gudla Vykunta Rao and …6…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019
Vykunta Rao in turn sold the property to J.J. Mohana Rao. Tammana
Rambhai is not the owner of the property situated on the northern side to the suit property. The extent of the suit property is Ac.0.04 cents and it is situated in Survey No.179/1 and it correlates to Old Survey
No. 583/1.
18. She exhibited the Adangals for the Fasali 1422 dt.20.12.2013 exhibited as Ex.A.12 and Ex.A.13 and correlation statement was exhibited as Ex.A.11. Ex.A.3 is the Adangal for Fasali 1419. As seen from Ex.A.3, the name of plaintiff was incorporated as pattedar and occupant of the land extending Ac.0.04 cents in Survey
No. 179/1. So also Ex.A.12 and Ex.A.13 adangals for Fasali 1422.
Exs.A.12 and A.13 were issued for the same Fasali 1422 i.e., agricultural year 2012. Ex.A.13 is the copy of adangal for Fasali 1422 relating to the agricultural year 2012-13. The plaintiff's son name was incorporated in the said adangal. It is very much there in the evidence of PW.1 that her son has got property nearby the suit land.
19. Per contra, the defendants exhibited the copy of adangal for
Fasali 1422 relating to the agricultural year 2012-13 as Ex.B.4 and the confirmation certificate issued by the Mandal Revenue Officer in favour of the 2nd defendant for an extent of Ac.0.03 cents in Survey
No.179/3. As seen from Ex.B.4, the 1st defendant is in possession of an extent of land admeasuring Ac.0.04 cents in Survey No.179/2.
20. The sale deed of the 1st defendant was exhibited as Ex.B.1.
The survey number was shown as 179/1 therein. As seen from the written statement averments, the 1st defendant is having land in …7…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019
Survey No. 179/1 and the 2nd defendant is having land in Survey No.
179/3. But as seen from the copy of the adangal, the 1st defendant is in possession of the land extending Ac.0.04 cents in Survey No.179/2.
I find substance in the contention of the plaintiff that the lower court failed to consider the incompatibility.
21. Since it is a suit for perpetual injunction, it is incumbent on the plaintiff to establish that she has been in possession and enjoyment of the suit property on the date of filing of the suit, irrespective of the contentions of the defendants and failure to establish their contentions by the defendants.
22. As seen from the averments of the plaint and the documentary evidence let in by the plaintiff, Ex.A.1 sale deed was executed by her vendor and it was recited in the sale deed the suit property is situated in Survey No. 179/2. The plaintiff's contention is it was done by mistake and thus she got the rectification sale deed executed by her vendor on 21.01.2008. So, the plaintiff is obliged to establish that the said Survey number was mentioned mistakenly and in fact the real survey number is 179/1 and not 179/2. She did not made any endeavour to establish the said fact and she did not file the link documents of her vendor. Had really, the survey number is mistakenly or wrongly mentioned as 179/2 instead 179/1, it would have been reflected in the link documents of her vendor. But she adduced documentary evidence by exhibiting Ex.A.4 to A.9 documents i.e., link documents of the 1st defendant's vendor to prove the Survey
No. 583/1 correlates to new Survey No. 238/14 and 238/15 and it …8…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019 does not correlate to Survey No. 179/1. Item No.7 of Ex.B.1 sale deed relates to the property covered under Ex.A.9. The survey number in
Ex.A.9 was shown as 583/1 relating to extent of Ac.0.19 cents. In
Ex.B.1, Item No.7 is shown in Survey No. 583/1 and the new Survey
No. 179/1 and the extent of Ac.0.04 cents. No correlation certificate was produced by the defendants. The plaintiff obtained correlation certificate from the Tahsildar relating to Survey No. 583/1 and it was exhibited as Ex.A.10. The plaintiff, therefore, relied on Ex.A.10 to establish her contention that the old Survey No. 583/1 correlated to
Survey Nos. 238/14 and 238/15 and not the Survey No. 179/1 and consequently the recitals in Ex.B.1 relating to the Survey No. 179/1 might have been created by the 1st defendant to grab the suit property.
23. I regret my inability to accept the said contention for Ex.B.1 sale deed was executed way back in the year 1999 and 12 years before filing of the suit by the plaintiff. It cannot be countenanced that the defendants prophesied the future litigation that the plaintiff would file the suit in future and so that they can set up the plea by getting survey number wrongly mentioned in Ex.B.1 sale deed. It is a sheer insinuation and the said argument is specious. Considering for arguments sake that 1st defendant got the survey number intentionally mentioned as 179/1 instead Survey Nos. 238/14 and 238/15, it does not fillip the plaintiff's contention that she was having land in Survey No.179/1 unless she establishes that her vendor had the land in the said Survey number and he got every right …9…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019 to execute the rectification deed (Ex.A.2) getting rectified the Survey
No. 179/2 said to have been mistakenly mentioned in Ex.A.1. But no such endeavour is made by the plaintiff and she did not file any link document belonging to her vendor. As seen from Ex.B.1 sale deed, the 1st defendant purchased Ac.0.04 cents of land in Survey No.179/1 under registered sale deed way back in the year 1999 and 12 years prior to the present litigation. The plaintiff did not file the adangals evidencing that she was in possession of the property on the date of filing of the suit i.e., in the year 2011 i.e., for Fasali 1421.
24. She did not file adangals or her vendor's adangals subsequent to the Fasali1422 to prove her possession. She filed only one adangal for Fasali 1422 i.e., for the agricultural year 2012-13.
Since the suit was filed in the year 2011, she must prove that she was in possession of the suit property on the date of filing of the suit i.e., in the year 2011 and it is therefore incumbent on her to file adangals for
Fasali 1421 relating to the agricultural year 2011-12. She did not give any plausible explanation for withholding those documents. It is also incumbent on her to establish that Survey number was mentioned as 179/1 in the link documents of her vendor and she did not file any such document to show that the survey number was wrongly mentioned in Ex.A.1 sale deed as 179/2 instead 179/1. She did not file cultivation account, cist receipt or any other document evidencing that her vendor was in possession of the suit property situated in
Survey No. 179/1 extending Ac.0.04 cents and the same was sold to her under Ex.A.1 sale deed. Mere rectification deed executed by the …10…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019 vendor, is not suffice to establish her contention that the Survey number was mistakenly mentioned as 179/1 unless it supported by any of the documentary proof mentioned above.
25. It is not as though that there are no link documents and there is no title to her vendor and as such she could not file either sale deed or cultivation account or cist receipt of her vendor to show that the correct Survey number is 179/1 and not 179/2. She bestowed her attention in disproving the Survey number mentioned as 179/1 in the sale deed of the 1st defendant. It does not help in any way to strength her case and to show that she was in possession and enjoyment of the land in Survey No.179/1. I, therefore, hold Ex.A.12 adangal is not conducive to hold that she was in possession and enjoyment of the property situated in Survey No.179/1 on the date of filing of the suit.
Ex.A.13 is the copy of adangal relating to the landed property of herson.
26. Memorandum of written argument was filed by the plaintiff.
It was stated therein that Ex.A.11 correlation certificate given by the
Tahsildar falsifies the contention of the 1st defendant that the land covered by Ex.B.1 is situated in Survey No. 179/1. It establishes that the land is situated in Survey No. 238/14 and 238/15. But these pleas were not taken in the plaint and the evidence beyond pleadings is of no avail. It is not the contention of the plaintiff that the Survey number mentioned in the sale deed of 1st defendant is wrong and it was intentionally mentioned to grace the suit property. I, therefore, hold the documentary evidence let in by the plaintiff under Exs.A.4 to …11…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019
A.9 to confute the documentary evidence let in by the 1st defendant and the Survey No. 179/1 was wrongly mentioned in Ex.B.1 sale deed is of no avail. I, therefore, hold the evidence of PW.1 is not conducive in any way to decide the points in issue unless it is established that the Survey number mentioned in the link documents and the title deed of her vendor is 179/1.
27. PW.2 filed affidavit in lieu of examination in chief asserting that the plaintiff has been in possession and enjoyment of Ac.0.04 cents of land situated at Sylada village since 20 years. It was elicited in the cross-examination he knows the suit property and he did not know the survey number. A tank is situated on the eastern side to the suit property. He did not stay in the village where the suit property is situated, but he has property there.
28. The over all evidence of this witness indicates that he did not know about the survey number. There is no gainsaying of the fact that the plaintiff is owning an extent of Ac.0.04 cents of land under
Ex.A.1 sale deed and the point in issue is whether the Survey number is 179/1 or 179/2. When the witness did not know about the survey numbers, his evidence is of no avail to establish the plaintiff's contention.
29. Since the title deed of the plaintiff reflects the Survey
No.179/2, the rectification deed cannot be considered unless it is established on what basis the rectification deed was executed by the vendor of the plaintiff and unless such material is produced before the court. The 1st defendant produced the sale deed executed way back in …12…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019 the year 1999 in his favour and it was exhibited as B.1. As seen from
Ex.B.1, he purchased Ac.0.04 cents of landed property in Survey
No.179/1 and he has been claiming the said property as suit property.
In the teeth of Ex.B.1 document, it is incumbent on the plaintiff to produce the relevant record which made her vendor to execute the rectification deed by correcting the Survey No. 179/2 and inserting the Survey No.179/1. Since the Adangal under Ex.A.12 does not relate to the year of filing of the suit and since the plaintiff withheld the adangals before and after filing of the suit to prove that she was in possession of the property in Survey No.179/1, I hold that Ex.A.12 adangal is of no avail to establish her contention. No plausible explanation whatsoever was forthcoming from the plaintiff to withhold the material documents i.e., link documents of her vendor to know whether the Survey number is 179/1 or 179/2 and the adangal relating to the year 2011 in which year the suit was filed or prior to 2011 or at least adangals subsequent to Fasali 1422.
30. In view of the aforementioned discussion, I answer Point
No.1 in the negative and against the plaintiff. I answer the Points No.2 and 3 in the affirmative and in favour of the plaintiff.
31. POINT No.4:
Aswering the Issues No.2 and 3 in favour of the plaintiff and against the defendants, does not absolve the plaintiff to establish her possession of the suit property on the date of filing of the suit and to exhibit the document relied on by her vendor and herself to correct the …13…
Judgment in AS No.14/2015 1st ADJ Court, Srikakulam, dated 15.02.2019
Survey No. 179/2 as 179/1 under Ex.A.2. I, therefore, hold that the judgment of lower court needs no interference.
This point is answered accordingly.
32. In the result, the appeal is dismissed with costs confirming the judgment and decree dated 31.12.2014 made in OS No. 31/2011 on the file of the Court of Junior Civil Judge, Amadalavalasa.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in open court this the 15th day of February, 2019.
1st Additional District Judge, Srikakulam.
Copy to the Junior Civil Judge, Amadalavalasa.
Order Record 15 total
| Case No. | Parties | Date | Type | Outcome |
|---|---|---|---|---|
| AS/100014/2015 | Kamireddy Nagaratnam vs Jalumuru Ravibabu | 15 Feb 2019 | Judgment | — |
| AS/7/2015 | Kannepalli Subbalakshmi vs Gunda Papayya | 12 Feb 2019 | Judgment | — |
| AS/100012/2014 | Kannepalli Chandra Sekhara Rao vs Gunda Papayya | 12 Feb 2019 | Judgment | — |
| SC.SPL/100005/2018 | State rep.by the Sub Inspector of Police, Kotabommali PS vs Chitta Damodara Rao alias Simhadri alias Siva - A1 | 07 Feb 2019 | Judgment | Acquitted |
| SC.SPL/100010/2018 | State rep.by the Sub Inspector of Police, Kasibugga P.S. vs Jogi Suresh | 06 Feb 2019 | Judgment | Acquitted |
| MVOP/289/2017 | Chatla Savitramma alias Savitri vs Ippili Murali alias Muralidhar | 31 Jan 2019 | Order | — |
| MVOP/100101/2018 | Chatla Savitramma @ Savitri, W/o Appayya vs Ippili Murali @ Muralidhar, S/o Narasinga Rao | 31 Jan 2019 | Order | — |
| MVOP/100311/2017 | Chatla Appayya vs Ippili Murali alias Muralidhar and 2 others | 31 Jan 2019 | Order | — |
| MVOP/100312/2017 | Yenni Padmavathi and 2 others vs Sariyapalli Apparao and 2 others | 31 Jan 2019 | Order | — |
| SC.SPL/100011/2018 | State rep.by the Sub Inspector of Police, Kasibugga PS. vs Rajam Gowrisankar | 31 Jan 2019 | Judgment | — |
| EP/41/2018 | Shriram City Union Fin. Ltd. Rep. By P.Jagadeeswara Rao vs Kadraka Savarayya and 2 others | 24 Jan 2019 | Order | — |
| EP/100191/2018 | M/S.Shriram City Union Finance ltd., reptd GPA holder vs Buddala Bhanoji Rao | 24 Jan 2019 | Order | — |
| EP/100086/2018 | Shriram City Union Finance Ltd., vs Singampalli Venkata Krishnaveni and two others | 23 Jan 2019 | Order | — |
| EP/100196/2018 | M/S.Shriram City Union Finance ltd., reptd GPA holder vs Dukka Bhagya Reddy | 23 Jan 2019 | Order | — |
| SC.SPL/100023/2017 | State rep.by the Inspector of Police vs Koyyana Sekhar alias Ramu | 11 Jan 2019 | Judgment | — |
Frequently Asked Questions
How many cases has Sri U.Satya Rao handled?
Sri U.Satya Rao has handled 15 court orders since 2019 at Prl. District and Sessions Court, Srikakulam. The average disposal rate is 5 orders per month.
What types of cases does Sri U.Satya Rao hear?
Based on available records, Sri U.Satya Rao primarily handles Civil matters (Execution Petitions, Appeal Suits) and Criminal matters (Sessions Cases) and Motor Accident matters (Motor Accident Claims) at Prl. District and Sessions Court, Srikakulam.
Where is Sri U.Satya Rao currently posted?
Sri U.Satya Rao is posted as I Addl.District Judge at Prl. District and Sessions Court, Srikakulam, Srikakulam, Andhra Pradesh.
Are judgments by Sri U.Satya Rao available online?
Yes. 5 judgments by Sri U.Satya Rao are available on Legistro with full text, outcome, and sections cited.
How fast does Sri U.Satya Rao dispose cases?
Sri U.Satya Rao disposes approximately 5 cases per month, based on 15 orders handled over their tenure at Prl. District and Sessions Court, Srikakulam.
Since when is Sri U.Satya Rao serving?
Sri U.Satya Rao has been serving at Prl. District and Sessions Court, Srikakulam since 2019.
Case Types
Posting History
-
Jan 2019 — Apr 2019I Addl.District Judge · 15 orders
Outcomes on Record
Other Judges at this Court