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Monday, June 27, 2016

Sub-Registrar/Registering Authority under the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (for short “Act 1977”) objections to register a document under Section 22-A of the Act. - lands assigned prior to 1954 without the condition of non-alienability =The competent authority shall prepare the list of assigned lands with the condition of non-alienability and forward the list to Sub-Registrar/Registering Authority under the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (for short “Act 1977”). The petitioners who claim to have lands assigned prior to 1954 without the condition of non-alienability are given liberty to place details of assignment and decisions of this Court on the applicability of “Act 1977” to such assignment, for updating and operating the prohibitory list by these authorities under Section 22-A of the Act. - The respondent/Government having regard to a particular fact situation, if is desirous of including land assigned prior to 1954 in prohibitory list and claims interest in the property, the prohibition of such registration shall be by way of a notification under Section 22-A(1)(e) of the Act. It is open to the aggrieved party to assail such notification, if any, issued by the authority competent. It is made clear that refusal of registration by S.R.O in a given case results in fresh cause of action and the party aggrieved, by such rejection, is given liberty to pursue the legal remedies available to him/her in law.


WA 142 / 2016
WASR 175367 / 2014CASE IS:DISPOSED
PETITIONERRESPONDENT
SRI VARAHA LAKSHMI NARASIMHA SWAMY TEMPLE, VISAKHAPATNAM.  VSSMT. JAMI BHAVANI @ BUJJI, VISAKHAPATNAM, & ANR.



SUBJECT: STAMPS & REGISTRATIONDISTRICT:  VISAKHAPATNAM



IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
HON’BLE THE ACTING CHIEF JUSTICE DILIP B. BHOSALE AND HON’BLE SRI JUSTICE S.V. BHATT
WRIT APPEAL Nos.142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158 and 159 0f 2016 Date: 12.02.2016 W.A.No.142 of 2016
Between: Sri Varaha Lakshmi Narasimha Swamy Temple, rep., by its Joint Commissioner & Executive Officer, Visakhapatnam District. … Appellant And Smt. Jami Bhavani @ Bujji & another. … Respondents
HON’BLE THE ACTING CHIEF JUSTICE SRI DILIP B.BHOSALE AND HON’BLE SRI JUSTICE S.V.BHATT
WRIT APPEAL Nos. 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158 and 159 0f 2016 PC: (per the Hon’ble The Acting Chief Justice Sri Dilip B.Bhosale) Heard the learned counsel for the parties.
2. The questions involved and the challenge raised in this batch of writ appeals are similar and, therefore, learned counsel for the parties, in particular for the original petitioners and the appellants, have agreed for disposal of the appeals by this common order in the light of the Full Bench judgment in Vinjamuri Rajagopala Chary and others vs. Principal Secretary, Revenue Department, Hyderabad & others (W.A.343 of 2015, 232 of 2012 and 352 of 2013) dated 23-12- 2015. The writ petitions from which the writ appeals arise, were filed assailing inaction of registering authorities in receiving, registering and delivering the documents presented for registration in exercise of powers under Section 22-A of the Registration Act, 1908 (for short “Registration Act”). The six judgments, referred to in the Full Bench judgment, of the learned single judges, disposing of large number of writ petitions, on certain issues/questions were either conflicting or inconsistent and in view thereof, reference to the Full Bench was made.
The Full Bench, after making detailed reference to the six judgments, framed the following questions for consideration:-
“1. What are the pre-requisites that are to be satisfied for applying any one or more of clauses (a) to (e) of Section 22-A (1) of the Registration Act to any document dealing with alienation or transfer by way of sale, agreement of sale, gift, exchange or lease etc. in respect of immovable property presented for registration?
2. Under what circumstances, the act of the Registering authority concerned (District Registrar or Sub-Registrar) in refusing from registration of the aforementioned document/s by applying any one or more of the prohibitory clauses (a) to (e) under Section 22-A (1) of the Registration Act can be said to be justified?”
3. The Full Bench, to which one of us (Justice Dilip B Bhosale, Acting Chief Justice) was member, in depth considered the provisions contained in Section 22-A and summarised its conclusions in paragraph 36 as follows:-
(i) The authorities mentioned in the guidelines, which are obliged to prepare lists of properties covered by clauses (a) to (d), to be sent to the registering authorities under the provisions of Registration Act, shall clearly indicate the relevant clause under which each property is classified.
(ii) Insofar as clause (a) is concerned, the concerned District Collectors shall also indicate the statute under which a transaction and its registration is prohibited. Further in respect of the properties covered under clause (b), they shall clearly indicate which of the Governments own the property.
(iii) Insofar as paragraphs (3) and (4) in the Guidelines, covering properties under clause (c) and (d) are concerned, the authorities contemplated therein shall also forward to the registering authorities, along with lists, the extracts of registers/gazette if the property is covered by either endowment or wakf, and declarations/orders made under the provisions of Ceiling Acts if the property is covered under clause (d).
(iv) The authorities forwarding the lists of properties/lands to the registering authority shall also upload the same to the website of both the Governments, namely igrs.ap.gov.in of the State of Andhra Pradesh and registration.telangana.gov.in of the State of Telangana. If there is any change in the website, the State Governments shall indicate the same to all concerned, may be by issuing a press note or an advertisement in prominent daily news papers.
(v) No notification, contemplated by sub-section (2) of Section 22A, is necessary with respect to the properties falling under clauses (a) to (d) of sub-section (1) of Section 22-A.
(vi) The properties covered under clause (e) of Section 22-A shall be notified in the official gazette of the State Governments and shall be forwarded, along with the list of properties, and a copy of the relevant notification/gazette, to the concerned registering authorities under the provisions of Registration Act and shall also place the said notification/gazette on the aforementioned websites of both the State Governments. The Registering authorities shall make available a copy of the Notification/Gazette on an application made by an aggrieved party.
(vii) The registering authorities would be justified in refusing registration of documents in respect of the properties covered by clauses (a) to (d) of sub-section (1) of Section 22-A provided the authorities contemplated under the guidelines, as aforementioned, have communicated the lists of properties prohibited under these clauses.
(viii) The concerned authorities, which are obliged to furnish the lists of properties covered by clauses (a) to (d) of sub-section (1) of Section 22-A, and the concerned Registering Officers shall follow the guidelines scrupulously.
(ix) It is open to the parties to a document, if the relevant property/land finds place in the list of properties covered by clauses (a) to (d) of sub-section (1) of Section 22-A, to apply for its deletion from the list or modification thereof, to the concerned authorities as provided for in the guidelines. The concerned authorities are obliged to consider the request in proper perspective and pass appropriate order within six weeks from the date of receipt of the application and make its copy available to the concerned party.
(x) The redressal mechanism under Section 22-A(4) shall be before the Committees to be constituted by respective State Governments as directed in paragraph-35.1 above. The State Governments shall constitute such committees within eight weeks from the date of pronouncement of this judgment.
(xi) Apart from the redressal mechanism, it is also open to an aggrieved person to approach appropriate forum including Civil Court for either seeking appropriate declaration or deletion of his property/land from the list of prohibited properties or for any other appropriate relief.
(xii) The directions issued by learned single Judges in six judgments referred to above or any other judgments dealing with the provisions of Section 22-A, if are inconsistent with the observations made or directions issued in this judgment, it is made clear that the observations made and directions issued in this judgment shall prevail and would be binding on the parties including the registering authorities under the Registration Act or Government officials or the officials under the Endowments Act, Wakf Act and Ceiling Acts.
(xiii) If the party concerned seeks extracts of the list/register/gazette of properties covered by clauses (a) to (e) of Section 22-A (1), received by the registering officer on the basis of which he refused registration, it shall be furnished within 10 days from the date of an application made by the aggrieved party.
(xiv) Registering officer shall not act and refuse registration of a document in respect of any property furnished to him directly by any authority/officer other than the officers/authorities mentioned in the Guidelines.
(xv) Mere registration of a document shall not confer title on the vendee/alienee, if the property is otherwise covered by clauses (a) to (e), but did not find place in the lists furnished by the concerned authorities to the registering officers. In such cases, the only remedy available to the authorities under clauses (a) to (e) of sub-section (1) of Section 22-A is to approach appropriate forums for appropriate relief.
4. The learned counsel for the parties are ad idem viz., that the questions raised/issues involved in this batch of writ appeals are substantially covered by the judgment of the Full Bench dated 23-12- 2015 in W.A.No.353 of 2015 and batch. In this backdrop, we dispose of the writ appeals in terms of the judgment of the Full Bench dated 23- 12-2015 in W.A.No.343 of 2015 and batch and make the following observations:-
(i) After expiry of the period granted by the Full Bench for taking appropriate steps as directed therein, writ petitioners are given liberty to present or represent the documents before the concerned Sub-Registrar/registering authority having jurisdiction and the Sub-Registrar/registering authority shall entertain the documents for registration.
(ii) The Sub-Registrar/registering authority upon entertaining the documents so presented for registration, process the documents in accordance with law, and bearing in mind the principles of law laid down by this Court in Full Bench judgment dated 23-12-2015 and the directions issued therein, may either admit the document for registration or, for any reason, the document cannot be registered, it shall take the decision as per the directions issued by this Court in the Full Bench judgment and communicate to parties the reasons for refusal.
(iii) The Revenue Department/District Collectors, Endowments and Wakf are directed to comply the formalities suggested and the directions issued by this Court in Full Bench judgment, within the stipulated time, updating the lists required to be operated by the respective registering authorities strictly in compliance thereof.
(iv) The competent authority shall prepare the list of assigned lands with the condition of non-alienability and forward the list to Sub-Registrar/Registering Authority under the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (for short “Act 1977”). The petitioners who claim to have lands assigned prior to 1954 without the condition of non-alienability are given liberty to place details of assignment and decisions of this Court on the applicability of “Act 1977” to such assignment, for updating and operating the prohibitory list by these authorities under Section 22-A of the Act. 
(v) The respondent/Government having regard to a particular fact situation, if is desirous of including land assigned prior to 1954 in prohibitory list and claims interest in the property, the prohibition of such registration shall be by way of a notification under Section 22-A(1)(e) of the Act. It is open to the aggrieved party to assail such notification, if any, issued by the authority competent. It is made clear that refusal of registration by S.R.O in a given case results in fresh cause of action and the party aggrieved, by such rejection, is given liberty to pursue the legal remedies available to him/her in law. 
(vi) Registration of documents pursuant to interim order of this court in writ petitions/writ appeals would be subject to the decision that will be taken by the registering authority in pursuance of the directions issued by this Court in Full Bench judgment, on the principle that in a lis, interim order merges with the final order. In other words, it is open to the registering authority to either confirm the registration or cancel the registration and return the document, as the case may be, in the light of the decision of the Full Bench within three(3) months from the expiry of period of four(4) months mentioned in para.37 of the Full Bench judgment. (vii) The petitioners are given liberty to produce the copy of the Full Bench Judgment along with presentation/representation of the document in pursuance of this order. (viii) It is made clear that the registering authorities shall not have any adjudicatory right in respect of the property covered by the document presented for registration except informing reasons for refusing the registration or cancelling the registration. It is further made clear that none of the observations made in this order shall dilute either the directions issued in the Full Bench Judgment or the observations made therein. (ix) It is needless to mention that this order shall not take away the right of parties to carry the judgment of the Full Bench to Supreme Court, if they so desire and advised. 5. In view of the findings recorded by the Full Bench in the judgment, referred to above, all the findings under the impugned judgments, contrary to the Full Bench’s judgment, stand set aside, thereby the impugned judgments stand modified in terms of the directions given hereinabove in para-4. The writ appeals are accordingly disposed of. 6. Consequently, miscellaneous petitions, if any pending, also stand disposed of. __________________ DILIP B.BHOSALE, ACJ __________ S.V.BHATT, J Date: 12.02.2016 ES

suit for declaration that he is the owner of the plaint schedule property and for recovery of possession of the property from the respondent by directing the respondent to remove the tin shed construction and two rooms therein by way of mandatory injunction. - basing on allotment letter by defendant society and basing on injunction decree - mere letter of allotment cannot confer title as it is not a registered sale deed - Trial court and Appellant court rightly dismissed the suit despite of the fact that the defendant remained exparte = It is settled law that in a suit filed for declaration of title and recovery of possession, burden of proof lies on the plaintiff and he must succeed on the strength of his own title (Moran Mar Basselios Catholicos Vs. Thukalan Paulo Avira and Ors. [1] and Union of India and Others Vs. Vasavi Cooperative Housing Society Limited and others [2] ). None of the documents filed by appellant establish his title to the plaint schedule property and admittedly the appellant has no registered sale deed executed by the above Society in his favour.


SA 38 / 2016
SASR 24256 / 2014CASE IS:DISPOSED
PETITIONERRESPONDENT
V SARVESHAM  VSCHILUKU CHANDRAIAH

RESP.ADV. : 
SUBJECT: DECLARATION OF TITLE(IMMOVABLE PROPERTY)DISTRICT:  WARANGAL



THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO
SECOND APPEAL No.38 of 2016
JUDGMENT:
This Second Appeal is preferred by the appellant challenging the judgment and decree dt.17-04-2014 in A.S.No.95 of 2012 of the Principal District Judge, Warangal confirming the judgment and decree dt.18-07- 2012 in O.S.No.646 of 2010 of the II Additional Senior Civil Judge, Warangal. 
2. The appellant herein is plaintiff in the suit. He filed the said suit for declaration that he is the owner of the plaint schedule property and for recovery of possession of the property from the respondent by directing the respondent to remove the tin shed construction and two rooms therein by way of mandatory injunction.
3. According to the appellant, a plot No.68 admeasuring 402 sq. yards out of Sy.Nos.232 and 234 at Lashkarsingaram village o f Hanamakonda Mandal, Warangal District was allotted to him by the Jawhar Armed Reserve Police Housing Co-operative Society Limited under an allotment letter Ex.A-4 dt.30-04-1983 after it had purchased an extent of Ac.6.32 guntas under registered sale deed dt.29-04-1983. He claimed that possession of the property was delivered to him under the above letter, but the respondent illegally occupied it and raised two tin shed rooms therein. He also claimed that an injunction suit O.S.No.587 of 1993 was filed by him against the respondent before the II Judicial First Class Magistrate, Warangal for permanent injunction and he obtained a decree therein in his favour. 
4. The respondent remained exparte. 
5. The appellant examined P.W.1 and marked Exs.A-1 to A-4. 
6. By judgment dt.18-07-2012, the trial Court dismissed the said suit. It held that the documents relied upon by the petitioner do not prove the title of petitioner to the subject property and there is no corroborative evidence to prove Ex.A-4 letter dt.30-04-1983 referred to above. 
7. Appellant questioned the same in A.S.No.95 of 2012 before the Principal District Judge, Warangal. 8. The said appeal was also dismissed on 17-04-2014. The lower appellate Court also held that the petitioner failed to prove that he has title to the suit schedule property since he did not obtain any regular registered sale deed from the said Society and the decree in the Civil Court obtained by him cannot be taken as a proof of his title. 
9. Challenging the same, this Second Appeal is filed. 10. Although learned counsel for appellant sought to contend that the Courts below erred in refusing to grant relief of declaration of title and recovery of possession to the appellant on the basis of the allotment letter issued to him by the above Society, I am unable to agree with the said submission. It is settled law that in a suit filed for declaration of title and recovery of possession, burden of proof lies on the plaintiff and he must succeed on the strength of his own title (Moran Mar Basselios Catholicos Vs. Thukalan Paulo Avira and Ors. [1] and Union of India and Others Vs. Vasavi Cooperative Housing Society Limited and others [2] ). None of the documents filed by appellant establish his title to the plaint schedule property and admittedly the appellant has no registered sale deed executed by the above Society in his favour. 11. I do not find any question of law much less substantial question of law for consideration in the Second Appeal. 12. Therefore the Second Appeal is dismissed at the stage of admission. No costs. 13. As a sequel, miscellaneous petitions pending if any, in this Second Appeal shall stand closed. ___________________________________ JUSTICE M.S. RAMACHANDRA RAO Date: 11-03-2016 Vsv/* [1] AIR 1959 SC 31 [2] AIR 2014 SC 937

rehabilitation scheme - the allotment proceedings did not contain any prohibition on alienation of the property.trial Court decreed the suit in favour of the respondent. The appellate court confirmed the judgment and decree of the trial Court, - held that there is no wrong to interfere - Dismissed the appeal


SA 185 / 2016
SASR 45113 / 2010CASE IS:DISPOSED
PETITIONERRESPONDENT
MAMIDI ESWARAMMA  VSYELLAPU MAHESWARARAO







--------


THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY
SECOND APPEAL NO.185 OF 2016
DATED:10-06-2016
Between: Mamidi Eswaramma … Appellant
And Yellapu Maheswararao … Respondent
COUNSEL FOR THE APPELLANT: Dr. P.B. Vijaya Kumar
COUNSEL FOR THE RESPONDENT: Mr. T.D. Phani Kumar
THE COURT MADE THE FOLLOWING: JUDGMENT:
This second appeal arises out of concurrent findings of the Courts below.
The admitted facts of the case are that the mother of the appellant was allotted the suit schedule property under a rehabilitation scheme. She has sold the same for a valuable consideration under a registered sale deed in favour of the respondent.
As the appellant was interfering with the possession and occupation of the respondent, the latter has filed O.S. No.494 of 2005 on the file of the Junior Civil Judge, Gajuwaka, for permanent injunction. 
The trial Court framed the following issues.
1. “Whether the plaintiff is entitled for permanent injunction as prayed for?
2. Whether the defendant has got any right in the schedule property?
3. To what relief?”
After full-fledged trial, the trial Court decreed the suit in favour of the respondent. The appellate court confirmed the judgment and decree of the trial Court, vide its judgment dt.31.3.2010 in A.S. No.4 of 2009. The main plea raised in the suit is that as the property was allotted to her mother under a rehabilitation scheme, she had no right to alienate the same. However, both the courts below have found that the allotment proceedings did not contain any prohibition on alienation of the property. This finding falls under the realm of disputed question of fact. As both the Courts below have rendered concurrent findings on this fact in favour of the respondent, no substantial question of law arises in this second appeal. Hence, the second appeal is dismissed. As a sequel to dismissal of the second appeal, S.A.M.P. Nos.612 of 2013, 491 and 492 of 2016 shall stand dismissed as infructuous. _______________________ C.V. NAGARJUNA REDDY, J 10-06-2016 bnr

Whether the order of the Commissioner for Workmen’s Compensation & Assistant Commissioner of Labour, Ranga Reddy is legal, proper and correct in respect of granting interest ? The next objection of insurance company is that the lower authority has granted interest, though Workmen’s Compensation Act does not provide any provision for payment of interest. But as seen from the order of lower authority it granted interest by relying on judgment of the Supreme Court. Both sides have not disputed the principle laid down by the Supreme Court in the decisions referred to in the order of lower authority, therefore, objection of insurance company with regard to interest is also not tenable.


CMA 313 / 2016
CMASR 13157 / 2011CASE IS:DISPOSED
PETITIONERRESPONDENT
RELIANCE GENERAL INSURANCE COMPANY LIMITED, VISAKHAPATNAM.  VSUDHAV AND 2 OTHERS



SUBJECT: W.C.ACT & E.S.I. ACT(DEATH)DISTRICT:  HYDERABAD









HON’BLE SRI JUSTICE S. RAVI KUMAR
CMA No.313 of 2016
JUDGMENT:
This appeal is filed with delay condonation petition. On the request of both sides after condoning the delay appeal is taken up as the main objection raised in the appeal is already covered. This appeal is preferred questioning the order dated 25.01.2011 in W.C.No.5 of 2008 (old WC No.11 of 2007) on the file of Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Ranga Reddy. 
2. Respondents No.2 and 3 herein submitted application before the Commissioner for Workmen’s Compensation (for short “lower authority”) contending that on 30.03.2007, the deceased Mahesh while traveling on DCM lorry bearing No. AP 29U 3148 as cleaner the vehicle met with an accident at about 11.00 a.m., due to which, deceased sustained multiple grievous injuries on his head and all over the body and died on the spot. Claimants contended that deceased was drawing a monthly salary of Rs.3,000/- per month and he died during course of his employment and that they are entitled for compensation of Rs.5 lakhs. Employer i.e., first respondent herein filed counter disputing the affidavit averments and insurance company also filed counter denying the claim of respondents No.2 and 3 and also its liability.
On these contentions, lower authority conducted enquiry, during which, two witnesses are examined and 11 documents are marked on behalf of claimants, whereas, no witnesses are examined on behalf of owner and insurance company, except producing insurance policy, and on a over all consideration of oral and documentary evidence, lower authority granted Rs.3,55,380/- as compensation with interest @ 12% p.a. on the said amount. Now aggrieved by the order of lower authority, insurance company preferred the present appeal.
3. Heard arguments.
4. It is the contention of insurance company that the lower authority granted interest contrary to the provisions of Workmen’s Compensation Act and even the policy does not contemplate payment of any interest, therefore order of the lower authority with regard to grant of interest is not legal. It is further contended that the driver of the vehicle was not having valid driving licence and that insurance company is not liable to pay any compensation, and lower authority without considering this objection granted compensation, therefore the same is liable to be set aside.
5. Now the point that would arise for my consideration is: Whether the order of the Commissioner for Workmen’s Compensation & Assistant Commissioner of Labour, Ranga Reddy is legal, proper and correct? 
POINT:
6. There is no dispute with regard to accident that took place on 30.3.2007. From the material, it is clear that the deceased was a cleaner on DCM lorry bearing No AP 29U 3148 and that he was under employment as on the date of accident. Though both owner and insurance company disputed the relationship of employee and employer between deceased and the first respondent herein, both of them have not adduced any evidence supporting the plea that was taken in the counter. 
7. On the other hand one of claimants who is examined as AW.1 reiterated the pleadings made in the petition and assertively deposed that deceased was a cleaner working under first respondent herein and on the date of accident he was under the employment and that deceased died during course of his employment. Evidence of AW.1 with regard to relationship of employee and employer between the deceased and the first respondent herein remained un-rebutted. Lower authority by accepting such evidence recorded finding that deceased was cleaner on vehicle bearing No.AP 29U 3148 and died during course of his employment and both the owner and insurer are liable to pay compensation. I do not find any wrong in the findings of lower authority. Though insurance company contended that driver had no valid driving licence but that plea also remained as plea without any proof. 
8. The next objection of insurance company is that the lower authority has granted interest, though Workmen’s Compensation Act does not provide any provision for payment of interest. But as seen from the order of lower authority it granted interest by relying on judgment of the Supreme Court. Both sides have not disputed the principle laid down by the Supreme Court in the decisions referred to in the order of lower authority, therefore, objection of insurance company with regard to interest is also not tenable.
9. On a scrutiny of the material on record, I am of the view that the lower authority has not committed any error in granting compensation and interest and that objections raised on behalf of insurance company are not tenable and that appeal is devoid of merits and liable to be dismissed. 10. Accordingly, this C.M.A.(SR) No.13157 of 2011 is dismissed. No costs. Miscellaneous Petitions, if any pending, in this Appeal, shall stand closed. __________________ S. RAVI KUMAR, J Date: 04-04-2016. gvl

the appeal is dismissed for non-compliance of the order by nor furnishing correct address of accuse = The Public Prosecutor is not able to say as to whether they could furnish the correct address of the accused. Having regard to the same and as the accused is already convicted and sentenced to undergo rigorous imprisonment for seven years for the offence punishable under Section 307 IPC, the appeal is dismissed for non-compliance of the order dated 27.01.2015. Accordingly, the Criminal Appeal is dismissed

CRLA 428 / 2016CRLASR 22325 / 2007CASE IS:DISPOSED
PETITIONERRESPONDENT
THE STATE OF A.P.  VSGUNTU RAJU @ JOHN



SUBJECT: U/s.376 I.P.C Acquittal - RapeDISTRICT:  EAST GODAVARI


DISPOSED ON  04-04-2016 DISMISSED

 ---------


HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
CRIMINAL APPEAL No.428 of 2016
JUDGMENT:
This Criminal Appeal is filed under Section 378 (3) & (c) Cr.P.C. by the State, challenging the judgment dated 23.09.2006 passed in S.C.No.194 of 2006 on the file of the II Additional Assistant Sessions Judge (Fast Track Court), East Godavari, Rajahmundry, seeking enhancement of sentence awarded to the accused.
For the sake of convenience, the parties will hereinafter be referred to as arrayed in S.C. The facts in issue are as under: On 12.11.2005 at about 8.00 p.m. PW.1 after providing dinner to her husband and mother, PW.1 went to the back side of her house and removed her cloths for taking bath behind a fence. At that time, accused, who is passing by the side of the house, with an evil desire to enjoy PW.1 went near her, and touched her back with his hands. When PW.1 turned back, he caught hold of her hands, dragged into her room, made her fell on the cotton heap, pounced upon her, closed her mouth and had forcible sexual intercourse without her consent and also threatened her with dire consequences.
Basing on those allegations a charge sheet came to be filed, which was taken on file as P.R.C.No.5 of 2006 and on committal it was numbered as S.C.No.194 of 2006. On appearance of the accused, the material was perused and on being satisfied, charge under Section 376 IPC was framed, read over and explained to the accused in telugu, to which he pleaded not guilty and claimed to be tried.
In support of its case, the prosecution examined PWs.1 to 9 and got marked Exs.P1 to P12 and M.O.s1 to 4. After closure of the prosecution evidence, the accused was examined U/s. 313 Cr.P.C. explaining the incriminating material available on record, but the same was denied by the accused. On behalf of the accused, DW.1 was examined. After analyzing the evidence available on record, the trial Court found the accused guilty for the offence punishable under Section 376 IPC and was convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of RS.3,000/- in default of payment of fine he shall undergo simple imprisonment for three months.
Challenging the same the State preferred the appeal seeking enhancement of sentence. On 27.01.2015 this Court while posting the matter after four weeks directed the Public Prosecutor to ascertain the correct address of the accused and furnish the same to the Court within a period of four weeks. Till date neither the prosecution was able to serve notice on the accused nor furnished the correct address of the accused. The Public Prosecutor is not able to say as to whether they could furnish the correct address of the accused. Having regard to the same and as the accused is already convicted and sentenced to undergo rigorous imprisonment for seven years for the offence punishable under Section 307 IPC, the appeal is dismissed for non-compliance of the order dated 27.01.2015. Accordingly, the Criminal Appeal is dismissed. As a sequel thereto, Miscellaneous Petitions, if any, pending shall stand closed. _____________________ C. PRAVEEN KUMAR, J 04.04.2016 gkv

Saturday, June 25, 2016

eschewed the evidence in chief of D.W.3 and held that he shall not be entitled to depose as a witness in that suit as he was present through out the cross examination of DW2 =If a party to a suit intends to examine more witnesses than one, the basic requirement is that when one of the witnesses is being examined, others who are proposed to be examined as witnesses, are not present in the Court. If they are present, they would naturally become alert and fill the lacunae, that may be left in the evidence of the person, who is already examined as a witness. The Law does not permit this. However, exactly the same thing has happened in the instant case. When the cross-examination of D.W.2 was in progress, a person who is proposed to be examined as D.W.3, was present in the Court through out. The trial Court has taken correct view of the matter, when it held that the evidence of D.W.3 cannot be recorded at all and that the affidavit filed by him in lieu of chief-examination is liable to be eschewed from consideration. If at all anything, the trial Court has only enforced a fundamental principle and basic tenet of law of evidence. The petitioner has to blame himself for not ensuring that a witness, who is proposed to be examined by him, is not in the Court, when the other witness is being cross-examined.

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

Civil Revision Petition No.253 of 2013

08.02.2013
       
M.Venkataratnam Reddy.  

P.L.Manogaran and others.

Counsel for the petitioner    : Sri Suresh Kumar Reddy Kalava

Counsel for respondent : ---

<GIST:

>HEAD NOTE:  

?Cases referred:

ORDER:
        The 1st respondent filed O.S.No.104 of 2007 in the Court of Senior Civil
Judge, Puttur against the petitioner and respondents 2 to 7 herein, for the
relief of perpetual injunction in respect of the suit schedule property. The
trial of the suit commenced.  The evidence on behalf of the 1st respondent was
concluded. The evidence on behalf of the defendants is in progress.  The cross-
examination of D.W.1 was also completed.      
        When D.W.2 was being cross-examined, a person who was sought to be  
examined as D.W.3 and filed affidavit in lieu of Chief-examination, remained in
the Court.  Taking that into account, the trial Court, through docket order,
dated 14.12.2012, eschewed the evidence in chief of D.W.3 and held that he shall
not be entitled to depose as a witness in that suit.  The same is challenged in
this revision.
        Heard Sri Suresh Kumar Reddy Kalava, leaned Counsel for the petitioner.
        The cross-examination of a witness has its own significance. Several
important aspects will be elicited from the witnesses and the strength or
weakness of the suit would depend upon the extent, to which the information is
elicited in the cross-examination. For all practical purposes, the chief-
examination has been reduced to an empty formality with the creation of facility
of filing of affidavits in lieu of chief examination.
        If a party to a suit intends to examine more witnesses than one, the basic
requirement is that when one of the witnesses is being examined, others who are
proposed to be examined as witnesses, are not present in the Court. If they are
present, they would naturally become alert and fill the lacunae, that may be
left in the evidence of the person, who is already examined as a witness.  The
Law does not permit this. However, exactly the same thing has happened in the
instant case. When the cross-examination of D.W.2 was in progress, a person who 
is proposed to be examined as D.W.3, was present in the Court through out.  The
trial Court has taken correct view of the matter, when it held that the evidence
of D.W.3 cannot be recorded at all and that the affidavit filed by him in lieu
of chief-examination is liable to be eschewed from consideration.    If at all
anything, the trial Court has only enforced a fundamental principle and basic
tenet of law of evidence.  The petitioner has to blame himself for not ensuring
that a witness, who is proposed to be examined by him, is not in the Court, when
the other witness is being cross-examined.
Hence, the Civil Revision Petition is dismissed. There shall be no order as to
costs.
        The Civil Miscellaneous Petitions filed in this civil revision petition
shall also stand disposed of.

        _____________________  
L. NARASIMHA REDDY, J    
February 8, 2013.

Friday, June 24, 2016

Section 629-A of the Companies Act as accused violated sec.94(2) of Companies Act = No permission by resolution is necessary under Sec.32 32(1) of the SIC Act coupled with Clause (8) of Ex.D-2 BIFR order for increasing authorized capital from Rs.8 crores to Rs.10.50 crores =the respondents/A.1 to A.4 were found not guilty for the offence punishable under Section 629-A of the Companies Act, 1956 (for short, ‘the Act’), for the contravention of Section 94(2) of the Act and were acquitted. =A-1 company has increased its authorized capital from Rs.8 crores to Rs.10.50 crores without passing a resolution in General Body Meeting. Hence, it is contended that A-1 company has violated the provisions of Section 94 of the Act. = Section 32(1) of the SIC Act coupled with Clause (8) of Ex.D-2 order and as A-1 company increased authorized capital from Rs.8 crores to Rs.10.50 crores, as per BIFR order, the complainant is not justified in contending that the increase of the authorized capital is in violation of Section 94(2) of the Companies Act, 1956, since resolution was not passed by the general body in the general meeting. The action of A-1 to A-4 in increasing authorized capital of A-1 company without passing resolution of the general body in general meeting is saved by Section 32(1) of SIC Act, as A-1 to A-4 did so as per the directions of BIFR.

CRLA 412 / 2016
CRLASR 20033 / 2008CASE IS:DISPOSED
PETITIONERRESPONDENT
REGISTRAR OF COMPANIES  VSM/S. S.S.ORGANICS LTD. & 4 OTHERS





DISPOSED ON  06-04-2016 DISMISSED


STATUS   :  ---------


THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
CRIMINAL APPEAL No.412 of 2016
JUDGMENT:
Heard the learned counsel for the appellant, the learned counsel for respondents 1 to 4 and the learned Public Prosecutor for the 5 th respondent. With the consent of the learned counsel for the petitioner as well as the learned counsel for the respondents, the criminal appeal is disposed of at the admission stage.
2. This Criminal Appeal is filed under Section 378 (4) read with Section 482 of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), questioning the correctness of the order, dated 13.07.2007, passed in C.C.No.05 of 2006, on the file of the Special Judge for Economic Offences at Hyderabad, whereunder the respondents/A.1 to A.4 were found not guilty for the offence punishable under Section 629-A of the Companies Act, 1956 (for short, ‘the Act’), for the contravention of Section 94(2) of the Act and were acquitted.
3. The brief facts that are necessary for disposal of the present appeal may be stated as follows: A complaint came to be filed by the Registrar of Companies, Kendriya Sadan, Hyderabad, under the Companies Act, 1956, for violation of Section 94(2) of the Act against A-1 to A-4. During the course of inspection conducted by P.W.1, it was observed that A-1 company has increased its authorized capital from Rs.8 crores to Rs.10.50 crores without passing a resolution in General Body Meeting. Hence, it is contended that A-1 company has violated the provisions of Section 94 of the Act. A-2 is the Managing Director, A-3 is the Technical Director and A-4 is the whole-time Director of A-1 company. A-2 to A-4 were the officers in default of A-1 company during the relevant and material period of offence. The office of the appellant had issued a show cause notice, dated 07.12.2005, to the accused to show cause as to why prosecution should not be launched against them for the above said violations. As the reply given by the accused was not satisfactory, the present complaint came to be filed.
4. During the course of trial, the complainant examined P.Ws 1 and 2 and got marked Exs.P-1 to P-5. 5. After completion of the evidence on behalf of the complainant, A-1 to A-4 accused were examined under Section 313 Cr.P.C., for which they denied the incriminating circumstances appearing against them in the evidence of prosecution witnesses. A-2 is examined as D.W.1 and Exs.D-1 to D-7 were marked.
6. After considering the evidence on record, the trial Court found the accused not guilty of the offences and accordingly acquitted them. Challenging the same, the present appeal is preferred by the complainant. 
7. P.W.1 in his evidence deposed that he has inspected A-1 company during 11.04.2005 to 16.04.2005. After completing the inspection, P.W.1 issued a letter to the company and to all its directors on 26.04.2005 drawing their attention to the violations noticed by him during the course of inspection. In response to the said letter, A-1 gave a reply in its letter, dated 19.05.2005. Thereafter, P.W.1 prepared a report and submitted the same to the Ministry of Company Affairs, New Delhi for examination. The Ministry of Company Affairs then addressed a letter to Registrar of Companies together with relevant extract of the inspection report, dated 08.11.2015, to prosecute the accused. P.W.1 further stated that one such violation was under Section 94(2) of the Act. It is noticed during inspection that the company has increased its authorized capital from Rs.8 crores to Rs.10.50 crores without passing of a resolution by the general body. The company has filed Form No.5 for increasing the authorized capital by passing Board resolution on 28.03.2005. Authorized capital can be increased by passing resolution in the annual general body. Thus, A-1 did not comply with the provision under Section 94(2) of the Act. During cross-examination P.W.1 denied the suggestion that the company has not contravened Section 94(2) of the Act as the company has increased the authorized capital as per directions of BIFR.
8. The evidence of P.W.1 reads that there was a violation of Section 94(2) of the Act since resolution was not passed in the general body meeting for increase of authorized capital of A-1 company from Rs.8 crores to Rs.10.50 crores. It is further stated that even though A-1 to A-4 have violated Section 94(2) of the Act, while increasing authorized capital of A-1 company, the said action of A-1 to A-4 is saved by Section 32(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short, ‘the SIC Act’). 
9. Learned counsel for the appellant mainly submits that the allegations made in the complaint do prima facie make out a case against the accused. He further submits that under Section 32(1) of the SIC Act, the appellant has to obtain the resolution of the Board before increasing the share capital. It is firmly disputed by the learned counsel for the appellant stating that since the share capital was raised pursuant to a scheme, obtaining approval from the Board would not arise. 
10. In order to appreciate the same, it may be useful to refer to EX.D-2, which is the order of BIFR, dated 27.01.2005, sanctioning modified rehabilitation scheme to A-1 company. As per Clause (8) of Ex.D-2, BIFR directed the provisions of the scheme shall have effect notwithstanding anything inconsistent in any other law (except the provisions of Foreign Exchange Regulation Act, 1973 and Urban Land (Ceiling and Regulations) Act, 1976) for the time being in force. Clause (8) of Ex.D-2 reads as under: “T he Board directs that the provisions of this scheme shall have effect notwithstanding anything inconsistent therewith contained in any other law (except the provisions of the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulations) Act, 1976) for the time being in force or in the Memorandum and Articles of Association of the sick industrial company, i.e., S.S. Organics Ltd. (SSOL) or any other instrument having effect by virtue of any law other than the Sick Industrial Companies (Special Provisions) Act, 1985.”
11. Further Section 32(1) of the SIC Act states that the provisions of this Act, rules or schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 and Urban Land (Ceiling and Regulation) Act, 1976, for the time being in force or in the Memorandum of Articles of Association of an Industrial company or any other instrument having effect by virtue of any other law other than this Act. Section 32(1) of the SICA Act reads as under: “T he provisions of this Act and of any rules or schemes made there under shall have effect not withstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 (46 of 1973) and the Urban Land (Ceiling and Regulations) Act, 1976, (33 of 1976) for the time being in force or in the Memorandum and Articles of Association of an industrial Company, or any other instrument having effect by virtue of any law other than this Act.”
12. Section 32(1) of the SIC Act coupled with Clause (8) of Ex.D-2 order and as A-1 company increased authorized capital from Rs.8 crores to Rs.10.50 crores, as per BIFR order, the complainant is not justified in contending that the increase of the authorized capital is in violation of Section 94(2) of the Companies Act, 1956, since resolution was not passed by the general body in the general meeting. The action of A-1 to A-4 in increasing authorized capital of A-1 company without passing resolution of the general body in general meeting is saved by Section 32(1) of SIC Act, as A-1 to A-4 did so as per the directions of BIFR. 
13. Having regard to the facts and circumstances of the case and this being an appeal against acquittal, I see no reason to interfere with the judgment of the trial Court.
14. Accordingly, the Criminal Appeal is dismissed at the stage of admission, confirming the judgment, dated 13.07.2007, in C.C.No.5 of 2006, on the file of the Special Judge for Economic Offences, at Hyderabad. Miscellaneous petitions, if any, pending in this criminal appeal shall stand closed. _________________________ C.PRAVEEN KUMAR, J Date: 6 th April, 2016 KL THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR CRIMINAL APPEAL No.412of 2016 Date: 06.04.2016 KL

Boy leg was amputated - Tribunal awarded Rs.3,45,000/- against the appellants that is KSRTC and Insurance Company - Hired Bus - liability in the case of a hired bus.= But the issue with regard to hired bus is now authoritatively settled by the Supreme Court in Managing Director, KSRTC v. New India Assurance Co. Ltd. [1] holding that all are jointly and severally liable to the claim; but however, the Road Transport Corporation, in terms of the lease agreement entered into with the registered owner, would be entitled to recover the amount paid to the claimants from the owner as stipulated in the agreement or from the insurer. = In view of the decision in Managing Director, KSRTC’s case (supra), the award passed by the Tribunal has to be upheld. However, Karnataka State Road Transport Corporation can recover the amount from the owner as stipulated in the agreement or from the insurer.


MACMA 418 / 2016
MACMASR 39825 / 2008CASE IS:DISPOSED
PETITIONERRESPONDENT
THE NORTH WEST KARNATAKA STATE ROAD TRANSPORT CORPORATION  VSS.MASTHAN VALI & 2 ORS





DISPOSED ON  11-02-2016 DISMISSED NO COSTS


STATUS   :  ---------



THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
MACMA.Nos.417 and 418 of 2016
COMMON JUDGMENT:
These two appeals are being disposed of by this common order, as they arise out of award dated 05.03.2008 in M.V.O.P.No.463 of 2006 on the file of the Court of the Special Judge for SC/ST (POA) Act-cum-VI Additional District and Sessions Judge, Kurnool-cum-Chairman, Motor Accidents Claims Tribunal, Kurnool (for short, the Tribunal).
2. MACMA.No.417 of 2016 was filed by Oriental Insurance Company, whereas MACMA.No.418 of 2016 was filed by North West Karnataka State Road Transport Corporation. Both the appeals raise a common point with regard to their liability in the case of a hired bus. But the issue with regard to hired bus is now authoritatively settled by the Supreme Court in Managing Director, KSRTC v. New India Assurance Co. Ltd. [1] holding that all are jointly and severally liable to the claim; but however, the Road Transport Corporation, in terms of the lease agreement entered into with the registered owner, would be entitled to recover the amount paid to the claimants from the owner as stipulated in the agreement or from the insurer. 
3. The claimant filed MVOP.No.463 of 2006 claiming a compensation of Rs.5,00,000/- for the injuries sustained by him in a motor accident that occurred on 01.04.2006. The claimant was aged about 7 years as on the date of accident and was studying second class. In the accident, his left leg was amputated. 
4. The owner of the bus, which was involved in the accident remained ex parte and the case was contested by the appellants herein. The Tribunal awarded an amount of Rs.3,45,000/- towards compensation, by its award dated 05.03.2008, against the appellants. 
5. The present appeals are preferred by Oriental Insurance Company and North West Karnataka State Road Transport Corporation as stated above. In view of the decision in Managing Director, KSRTC’s case (supra), the award passed by the Tribunal has to be upheld. However, Karnataka State Road Transport Corporation can recover the amount from the owner as stipulated in the agreement or from the insurer. 
6. The appeals are, accordingly, dismissed. Miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs. ______________________________ A.RAMALINGESWARA RAO, J Date: 11.02.2016 TJMR [1] 2015 (6) ALD 166 (SC)

Sec.152 of C.P.C. - No appeal for correction of decree as per Judgement = Under the award it was held that that 2 nd respondent/insurance company is not liable and that the 1 st respondent/owner of the vehicle is alone liable to the pay the compensation awarded to the claimants. However, the contents of the decree granted would show that the liability is fastened against the insurance company as well. Therefore, the contents of the decree are quite contrary to the findings recorded in the award, where under and whereby the Tribunal had exonerated the insurance company from the liability to pay any compensation and fastened the liability on the 1 st respondent alone. = In the facts and circumstances of the case, instead of filing this appeal, the Insurance Company ought to have requested the Tribunal to correct the mistakes in the decree by exercising its powers under section 152 of the Code of Civil Procedure.


MACMA 1370 / 2016
MACMASR 27858 / 2006CASE IS:DISPOSED
PETITIONERRESPONDENT
THE NEW INDIA ASSURANCE COMPANY LIMITED, HYDERABAD.  VSSMT. JATAVATH GAMSI AND 2 OTHERS





DISPOSED ON  31-03-2016 DISPOSED OF NO COSTS


STATUS   :  ---------




THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI
MACMA.No.1370 of 2016
JUDGMENT: The New India Assurance Company Limited/the 2 nd respondent in OP no.746 of 2003 on the file of the learned Chairman, Motor Accidents Claims Tribunal-cum-XXIII Additional Chief Judge, Red Hills, Nampally, Hyderabad had filed this civil miscellaneous appeal assailing the decree dated 09.09.2005 of the said learned Chairman passed in the aforementioned OP.
2. I have heard the submissions of the learned counsel for the appellant/Insurance company (‘the insurance company’, for brevity) and the learned counsel for the 1 st respondent/1 st claimant. The 2 nd respondent had died; and, for not bringing on record the legal representatives of the deceased 2 nd respondent, the appeal against the 2 nd respondent was already dismissed as abated. The 3 rd respondent is the owner of the vehicle involved in the accident.
3. The facts necessary for consideration, in brief, are as follows: The claimants, who are the parents of the deceased-Jathavath Babu, a minor boy aged 14 years, had filed the claim petition before the Tribunal claiming compensation for the loss sustained by them owing to the untimely death of their son on 06.11.2002 at about 10:00 hours, on account of his involvement in a motor vehicle accident, which had occurred when the tractor and trailer bearing registration nos. AP 15 V 653 and AP 22 T 5153, in which the deceased and his friend-Nenavath Ravinder were proceeding from Vityala village to attend to a road work at Raikal village, had capsized at the outskirts of Jogammaguda near the tank bund of Mayavani Cheruvu, due to the rash and negligent driving of its driver. The 2 nd respondent insurance company having filed a counter had resisted the claim of the claimants. The 1 st respondent/owner of the vehicle had remained ex parte before the Tribunal. On merits, the Tribunal had awarded a compensation of Rs.1,25,000/- with proportionate costs to the claimants, with subsequent interest at 6% per annum from the date of the petition till the date of realisation, payable by the 1 st respondent.
4. The grievance of the insurance company may be summed up as follows: The Tribunal in the Award had held that the 1 st respondent alone is liable to pay the compensation awarded to the claimants and had directed that the compensation as awarded with interest is payable by the 1 st respondent-owner of the vehicle; but, the contents of the decree granted by the Tribunal, which are contrary to the contents of the award, are as follows: 1. That the petition be and the same is hereby allowed partly awarding total compensation of Rs.1,25,000/- (Rupees one lakh twenty five thousands only) to the petitioners against the respondents 1 and 2 holding that they are jointly and severally liable to pay the said compensation with proportionate costs and interest @ 6% per annum from the date of the petition till the date of realisation. 2. That the rest of the claim be and the same is hereby dismissed. 3. That the respondent no.2 is directed to deposit the amount within one month from the date of the order. 4. That an amount of RS.62,500/- (Rupees sixty thousands five hundred) each is apportioned to the petitioners 1 and 2 and both of them are permitted to withdraw the entire amount along with interest and the said amount is to be paid to them by way of account payee cheque of a nationalised bank nearer to their place of residence. 5. That the respondents 1 & 2 jointly and severally are also hereby directed to pay a sum of Rs1,710/- (Rupees one thousand seven hundred and ten only) to the petitioners towards costs.’ (Reproduced verbatim) Under the award it was held that that 2 nd respondent/insurance company is not liable and that the 1 st respondent/owner of the vehicle is alone liable to the pay the compensation awarded to the claimants. However, the contents of the decree granted would show that the liability is fastened against the insurance company as well. Therefore, the contents of the decree are quite contrary to the findings recorded in the award, where under and whereby the Tribunal had exonerated the insurance company from the liability to pay any compensation and fastened the liability on the 1 st respondent alone. 
5. At the hearing, the learned counsel for the insurance company would submit that the learned Tribunal having categorically held that the deceased was travelling as a gratuitous passenger in the vehicle and that the owner of the vehicle is alone responsible to pay the compensation had however erroneously mentioned in the decree that both the respondents 1 and 2 are jointly and severally liable to pay the compensation and, hence, the appeal is filed to direct the Tribunal to rectify the error in the Decree.
6. Per contra, the learned counsel for the first respondent/first claimant had first drawn the attention of this Court to the contents of the paragraph 11 of the Award wherein the Tribunal had referred to the contentions of the insurance company advanced before the Tribunal to the effect that ‘if there is any breach of the conditions between the parties to the insurance contract, the insurance company can pay the amount and again recover the same from the 1 st respondent’. He had then contended that in view of the said contest of the Insurance Company, the decree is not at variance with the Award of the Tribunal.
7. However, a perusal of the award granted by the Tribunal would make it clear that in the award, the learned Tribunal had referred to the ratio in the decision of the Supreme Court in National Insurance Company Ltd., v. Baljit Kaur [2004 ACJ 428 SC] wherein it was held that the risk of the passengers, who are carried for hire or reward or gratuitously in a goods vehicle, is not covered under the policy and that the insurance company is not liable to pay any compensation in a case of death of any such passenger. Further, the Tribunal had also recorded a finding that the 1 st respondent alone is liable to pay the compensation awarded to the claimants. Nevertheless, in the contents of the decree it was stated that both the respondents are jointly and severally liable to pay the compensation awarded to the claimants. Thus, the contents of the decree are not in agreement with the award. As per law, the Decree shall agree with the judgment/award and the decree shall state correctly the relief/s granted or other determination; and the contents of the decree shall not be at variance with the award or judgment, as the case may be. In the case on hand, there is an apparent error in the decree; and it might have arisen due to a clerical mistake or accidental slip, which might have occasioned while drafting the decree by the Staff of the Tribunal. Therefore, the contentions of the 1 st claimant that the decree is not at variance with the award, in so far as the terms therein fastening the joint and several liability on the Insurance Company cannot be countenanced. In the facts and circumstances of the case, instead of filing this appeal, the Insurance Company ought to have requested the Tribunal to correct the mistakes in the decree by exercising its powers under section 152 of the Code of Civil Procedure. To the case on hand the legal maxim ‘Actus curiae neminem gravabit’ is applicable. It means that the act of the Court shall prejudice no man. The Insurance Company therefore ought to have approached the Tribunal with a request to amend the decree as per the provision of section 152 of the Code to keep it in agreement with the award. Be that as it may.
8. Viewed thus, this court finds that the CMA can be disposed of by giving suitable directions.
9. Having regard to the facts and the circumstances of the case, the CMA is disposed of directing the Insurance Company to approach the Tribunal and make a request to the Tribunal to amend the decree to keep it in agreement with the award; and furnish copies of the amended Decree to the parties in accordance with the procedure established by law. There shall be no order as to costs. Miscellaneous petitions pending, if any, in this appeal shall stand closed. ______________________ M. SEETHARAMA MURTI, J 31 st March, 2016 Note: (1) The Registry is directed to return the certified copies of the Award and decree to the appellant under proper acknowledgment and as per the procedure. (2) Issue CC by 06 th April, 2016 (B/o) Vjl

Section 366 read with 34 IPC =acquitted = PW.4 is the doctor, who examined PW.2 and issued certificate stating that she is aged about 18 years. The prosecution claims that PW.2 was forcibly abducted. In the cross examination, PW.2 admits that there was a love affair between her and accused No.1 and she was not confined in the house for five months. The admission of PW.2 that they witnessed movies, worked in the factory for two months, continued to live for five months clearly shows that there was no force on her and she was not confined. The evidence of PW.2 clearly shows that she voluntarily resided with accused No.1 for five months. In case of appeal against acquittal the scope of appeal is circumscribed by limitation. Unless the approach of lower Court to the consideration of evidence is vitiated by manifest illegality or conclusion arrived at by the lower Court is perverse, no interference with the order of acquittal is permissible.


CRLA 442 / 2016
CRLASR 24011 / 2007CASE IS:DISPOSED
PETITIONERRESPONDENT
THE STATE OF A.P., REP BY PP.,  VSPASAGADUGALA KISHORE AND 3 OTHERS,







DISPOSED ON  04-04-2016 DISMISSED


STATUS   :  ---------
HON'BLE JUDGE(S):   C.PRAVEEN KUMAR   



HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
CRIMINAL APPEAL No. 442 of 2016 JUDGMENT:
This Criminal Appeal is filed under Section 378 (3) and (1) Cr.P.C. by the State, challenging the judgment dated 18.05.2006 passed in S.C.No.366 of 2004 on the file of the Assistant Sessions Judge, Ramachandrapuram, wherein the accused were acquitted for the offences punishable under Sections 366 read with 34 IPC.
For the sake of convenience, the parties will hereinafter be referred to as arrayed in S.C. The facts in issue are as under: On 17.10.2003 at about 7.00 p.m. while the victim girl was going to tuition, one white colour ambassador car came there; her cousin-accused No.2 asked her to board the car stating that he will drop in the tuition and forcibly made her to board the Car. Accused Nos.3 and 4 were already present in the car. Accused No.2 gave chips and asked her to eat. After some time she became unconscious. When she gained consciousness, she was traveling in the train. Accused Nos.2 to 4 told that accused No.1 loved her and if she refuses to marry him, they will die by jumping from the train. On 18.10.2003 she was taken to the house of accused No.1 at Nacharam. Both of them lived in a separate house for three months. Accused No.1 used to come to the house in late night by consuming alcohol. When the victim girl was suffering with ill health accused No.1 left the place and the same was informed to her parents through one Kumari.
Basing on these allegations a charge sheet came to be filed, which was taken on file as P.R.C.No.31 of 2004 and on committal it was numbered as S.C.No.366 of 2004. On appearance of the accused, the material was perused and on being satisfied, charges under Section 366 read with 34 IPC was framed, read over and explained to the accused in telugu, to which they pleaded not guilty and claimed to be tried.
In support of its case, the prosecution examined PWs.1 to 7 and got marked Exs.P1 to P7. After closure of the prosecution evidence, the accused were examined U/s. 313 Cr.P.C. explaining the incriminating material available on record, but the same was denied by the accused. Neither oral nor documentary evidence was produced on behalf of the accused. After analyzing the evidence available on record, the trial Court acquitted the accused holding that the ingredients constituting the offence punishable under Section 366 IPC are not made out.
Challenging the same the appeal is filed by the State.
PW.1 is the mother of the victim. She deposed that PW.2 (victim) was missing along with gold jewellery and cash from 17.10.2003. She deposed that she gave complaint under Ex.P1 which was registered under the head “girl missing”.
PW.2 is the victim. In her evidence, she deposed that on 17.10.2003 while she was returning along with cash, accused No.2 came in ambassador car; forcibly took her into car and made her to sit. She noticed accused No.3 and 4 in the car, who forcibly caught hold of her and beat her. Accused No.1 took her to Hyderabad, where he used to come in drunken state, beat her, did not allow her to talk on phone and confined her in a house. She informed the same to her parents through one Kumari.
PW.3 is the father of victim. He deposed that the date of birth of the victim is 26.03.2003.
PW.4 is the doctor, who examined PW.2 and issued certificate stating that she is aged about 18 years. 
PW.6 is the head constable, who received the complaint from PW.1 and issued Ex.P.5 F.I.R.
PW.7 is the investigating officer, who investigated into the matter and filed the charge sheet.
The prosecution claims that PW.2 was forcibly abducted. In the cross examination, PW.2 admits that there was a love affair between her and accused No.1 and she was not confined in the house for five months. PW.7 the investigating officer also stated that PW.2 was not allowed to talk but not confined.
The admission of PW.2 that they witnessed movies, worked in the factory for two months, continued to live for five months clearly shows that there was no force on her and she was not confined. The evidence of PW.2 clearly shows that she voluntarily resided with accused No.1 for five months. 
In case of appeal against acquittal the scope of appeal is circumscribed by limitation. Unless the approach of lower Court to the consideration of evidence is vitiated by manifest illegality or conclusion arrived at by the lower Court is perverse, no interference with the order of acquittal is permissible.
In Mrinal Das Vs. State of Tripura [1] the Apex Court held as under: It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.
In Maloth Somaraju Vs. State of Andhra Pradesh [2] the Apex Court held that there can be no two opinions that merely because the acquittal is found to be wrong and another view can be taken, the judgment of acquittal cannot be upset. The appellate Court has more and serious responsibility while dealing with the judgment of acquittal and unless the acquittal is found to be perverse or not at all supportable and where the appellate Court comes to the conclusion that conviction is a must, the judgment of acquittal cannot be upset. The appellate Court has to examine as to whether the trial Court, while upsetting the acquittal, has taken such care. In view of the Judgments referred to above and having regard to the facts and circumstances of the case, I am of the view that there are no merits in the appeal and the same is liable to be dismissed. Accordingly, the appeal is dismissed confirming the judgment dated 18.05.2006 passed in S.C.No.366 of 2004 on the file of the Assistant Sessions Judge, Ramachandrapuram. As a sequel thereto, Miscellaneous Petitions, if any, pending shall stand closed. _____________________ C. PRAVEEN KUMAR, J 04.04.2016 gkv [1] (2011) 9 SCC 479 [2] (2011) 8 SCC 635

Friday, June 17, 2016

a stray admission in his cross-examination does not hold water.= PW.2 made a stray admission in his cross-examination that the disputes commenced from the year 1970 onwards with D.1. Thus the claim of defendants is that ever since 1957 they were in possession of the suit property and therefore, in 1970 when Bhanumathi claimed property by virtue of her sale, the D.1 asserted his title and possession against her and in that view, the present suit which is filed long after, is barred by limitation. This argument does not hold water. PW.2 is the son of plaintiff. In his cross-examination no doubt he made some admissions. For instance, he deposed as if the suit property was in possession of plaintiff since 1970 when Bhanumathi handed over the possession. He also admitted that disputes commenced from the year 1970 onwards with D.1. He further admitted that D.1 used to come to the site and go away and he used to obstruct their entry into the site from the beginning. Now the point is whether these admissions would amount to establishment of adverse possession by the defendants. PW.2 was born in the year 1959 and he was 11 years old by 1970. In view of his tender age by 1970, it is difficult to believe his words that his mother obtained possession of suit property in 1970 itself. In contrast, plaintiff (PW.1) in her evidence stated that she obtained possession of the property one week after execution of Ex.A.5. Therefore, the evidence of PW.2 with regard to delivery of possession cannot be viewed seriously. Similarly his other admission that the disputes commenced from the year 1970 onwards with D.1 also cannot be taken seriously as by 1970, PW.2 was only a tender aged boy. Therefore, his evidence will not clinch the adverse possession. So none of the points raised by the appellants would clinchingly establish that defendants have enjoyed the suit property openly, continuously and against the right, title and interest of Bhanumathi and plaintiff beyond the statutory period of limitation. The appellate Court upon proper consideration of the facts and evidence rightly held that the plaintiff deserved decree in her favour and the said finding does not suffer any legal infirmity

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

S.A. No.362 of 2003

29-03-2016

Koppisetty Ramana and others.. Appellants

Emani Ramanamma.. Respondent    

Counsel for Appellants: Smt. Bobba Vijayalakshmi

Counsel for Respondent:Sri V.L.N.Gopala Krishna Murthy

<Gist:

>Head Note:

? Cases referred:
1)      (1990) 4 SCC 706
2)      1998 (4) ALT 469 (DB)
3)      (2000) 3 SCC 640
4)      (2000) 7 SCC 60
5)      (2002) 5 SCC 90
6)      (2003) 4 SCC 161
7)      (2004) 1 SCC 271
8)      (2006) 7 SCC 570
9)      (2007) 6 SCC 59
10)      AIR 1995 SC 895
11)      (2007) 3 SCC 114
12)     AIR 2005 SC 4407

HONBLE SRI JUSTICE U. DURGA PRASAD RAO        

SECOND APPEAL No.362 of 2003    

JUDGMENT:  
        This Second Appeal is filed by the defendants questioning the
judgment and decree dated 14.02.2003 in A.S.No.194 of 1997 passed by
the VII Additional District Judge, Kakinada wherein the learned Judge
allowed the appeal filed by the appellant/plaintiff and set aside the
judgment and decree dated 28.12.1996 in O.S.No.146 of 1987 on the file
of Principal Subordinate Judge, Kakinada and decreed the plaintiffs suit
for declaration and possession.
2)      The brief facts of the case are thus:
a)      The case of the plaintiff is that originally plaint A schedule
property  belonged to one Ghantasala Aadilakshmi and she sold the same
under a registered sale deed dated 12.02.1961 to one Emani Bhanumathi
who in turn gifted the same to plaintiff, who is her daughter-in-law
through a registered gift deed dated 08.12.1981. While so, defendants 1
and 2 who are father and son entered into the said property claiming right
over the same. When the plaintiff questioned their act, they threatened her
with dire consequences. Then she filed a complaint before the SHO, PS
Sarpavaram who charge sheeted the defendants in C.C.No.103 of 1984
before the II Additional Judicial First Class Magistrate, Kakinada, who
after due enquiry found them guilty, of trespass and sentenced to pay fine.
Defendants carried the matter in revision to the District Court wherein the
learned Judge acquitted them on the ground that the case is of civil nature.
Basing on the acquittal order, defendants again trespassed into the plaint
schedule property and put their hayricks and started digging and taking
away the earth from the said land.  Hence the suit.
b)      The case of the defendants is that Ghantasala Adilakshmi was the
original owner of the property and she let out the same to the 1st defendant
on 05.07.1957 and since then he was in continuous possession and
enjoyment of the property as a lessee and after that he purchased the same
for Rs.92/- on 05.10.1966 and to that effect a receipt was also issued and
since from the date of purchase he has been in possession and enjoyment
of the property as owner.
c)      The further case of the defendants is that plaintiff having influenced
the Sarpavaram police launched criminal proceedings against them but the
appellate Court set aside the conviction finding them not guilty. The
further case of the defendants is that Ghantasala Adilakshmi had not
delivered possession of the plaint schedule property to Emani Bhanumathi
on 12.02.1961 as she herself was not in possession of the land by that
date. Emani Bhanumathi had no right over the plaint schedule property as
on 08.12.1981 therefore, she cannot convey any right under gift deed to
the plaintiff. First defendant was in possession and enjoyment of the same
from 1957 upto 05.10.1966 as a lessee and thereafter as owner. They
denied the contention of the plaintiff that defendants trespassed into the
property. Therefore, plaintiff is not entitled for declaration or possession
as claimed. They prayed to dismiss the suit with exemplary costs.
d)      Basing on the above pleadings, the trial Court framed the following
issues.
1.      Whether the plaintiff is entitled for declaration that she is the
owner of the plaint schedule property as claimed?
2.      Whether the plaintiff is entitled to eject the defendants 1 and 2
from the plaint A schedule property and for recovery of vacant
possession thereof as claimed?
3.      Whether the plaintiff is entitled to future profits from D1 and D2
and if so at what rate and for what period?
4.      Whether the suit is not maintainable at law?
5.      To what relief?
e)      During trial, PWs.1 to 3 were examined and Exs.A1 to A5 were
marked. DWs.1 to 5 were examined and Exs.B1 to B8 were marked on    
behalf of defendants.
f)      On appreciation of facts and evidence the trial Court dismissed the
suit holding that plaintiff is not entitled for declaration and ejectment of
defendants and any mesne profits.
g)      Aggrieved, the plaintiff filed A.S.No.194 of 1997 before VII
Additional District Judge, Kakinada challenging the judgment of the trial
Court.
h)      After hearing both sides, the first appellate Court allowed the
appeal with costs and decreed the suit as prayed for, granting two months
time to the defendants to vacate the suit schedule property. Hence, the
Second Appeal at the instance of the aggrieved defendants.
3)      The parties in this appeal are referred as they are arrayed before the
trial Court.
4)       The judgment of the trial Court would show in pra-8 it observed
that Ex.B8 will not confer any title on the defendants for the reason by the
date of oral sale dated 05.10.1966 allegedly executed by Ghantasala
Aadilakshmi in favour D1, she had no alienable title or interest over the
disputed property as she already conveyed the same to Emani Bhanumathi
by virtue of Ex.A3sale deed dated 18.02.1961.
a)      Though trial Court negatived the title of D1, still it considered his
adverse possession in respect of suit property in the succeeding paras of its
judgment. In para-13 it observed that as per recital in Ex.A3, D1 was a
tenant to the disputed property under Ghantasala Aadilakshmi but there is
no record that Aadilakshmi taken over the property from D1 prior to
executing Ex.A3sale deed in favour Emani Bhanumathi. It was
observed, since D1 has been contending that he was in possession from
1957 onwards, unless the plaintiff establish by cogent evidence that
Ghantasala Aadilakshmi recovered the possession from D1 prior to
execution Ex.A3 and delivered vacant possession to Emani Bhanumathi,
plaintiff cannot succeed.  The trial Court observed, in the absence of
plaintiff proving recovery of possession from D1 it is to be accepted that
D1 was in continuous possession of the property from 1957.  The trial
Court further observed that as per PW2 disputes commenced with D1
since 1970 which would also show that even prior to Ex.A5 plaintiff was
aware that D1 was claiming right over plaint schedule property. On all
these observations the trial Court held that though plaintiff could prove the
title over plaint schedule property by Ex.A5gift deed, yet she is not
entitled for declaration as D1 and his successors have been in possession
and enjoyment of the disputed property beyond the statutory period and
thereby perfected their title by way of adverse possession.
b)      Then coming to Appellate Judgment in A.S.No.194 of 1997,
learned Judge in Paras 11 and 12 of his judgment at first considered
respective titles setup by the plaintiff under Ex.A.3 and by the defendants
under Ex.B.8 and observed that admittedly Ghantasala Adilakshmi was
the original owner of the suit property and from her Emani Bhanumathi
purchased under Ex.A.3registered sale deed dt:18.02.1961 and later
gifted the same to her daughter-in-law i.e, plaintiff under Ex.A.5gift
deed dt:08.12.1981 and therefore, the plaintiff could establish her title.
The learned Judge observed that whereas D.1 is concerned, he claimed
that he was a tenant under Ghantasala Adilakshmi as per Ex.B.7lease
deed dt:05.05.1957 and later he purchased the suit property from her under
an oral sale covered by Ex.B.8receipt dt:05.10.1966.  He observed that
even if Ex.B.8 is held to be true, the first defendant cannot get title since
G. Adilakshmi had no title or interest in the suit property by the date of
Ex.B.8.  He further observed that if really D.1 purchased the property, he
would have obtained possession of Ex.A.1sale deed i.e, the title deed of
G. Adilakshmi. He also noticed that as per Ex.A.1sale deed, Adilakshmi
purchased the suit property for a consideration of Rs.300/- by 1950 and
she sold the same under Ex.A.3registered sale deed dt:18.02.1961 to
E.Bhanumathi for Rs.500/- which shows the value of the property by 1961
was Rs.500/-.  In that view, no prudent owner would sell away the
property in 1966 for a lesser price of Rs.92/- as claimed by D.1. Thus he
held that plaintiff could establish her title and defendants failed in that
regard.
c)      Then the learned Judge considered the other plea of the defendants
i.e, their adverse possession and barring of the suit by limitation.  Having
referred the case law filed by both sides, the learned Judge in Para 19
observed that since the suit was filed by the plaintiff basing on her title,
the burden would be on the defendant to establish that he perfected his
title by way of adverse possession.   The appellate Court noticed that
Art.65 of the Limitation Act is applicable to the instant case.  Having thus
fixed the burden of proving adverse possession on the defendants, learned
Judge observed that the defendants failed to prove their possession adverse
to the knowledge and interest of Bhanumathi or plaintiff beyond the
statutory period of limitation.  He noticed that defendants though claimed
to have cultivated the land but they could not establish the same because
the disputed property is a barren land but not a cultivable land and the
defendants failed to produce any village accounts or cultivation adangals.
He also observed that the evidence of PW.2 that disputes commenced with
D.1 from the year 1970 cannot be taken into consideration as by 1970 the
property was not gifted to his mother and hence, there cannot be any
dispute at all by then.  Ultimately the Appellate Court held that it was for
the defendants to prove that they perfected adverse title but they failed in
that regard. Learned Judge also observed that unless the lease was
determined and D.1 handed over the suit property and other property
which was leased to him, Adilakshmi who sold away the part of the
property to Gorla Gangamma and Rameshwarapu Chalapathi, could not  
have handed over the said property to them.  With these observations, he
allowed the appeal.
        Hence, the instant Second Appeal by defendants.
5)      Heard arguments of Smt. Bobba Vijayalakshmi, learned counsel for
appellants/defendants and Sri V.L.N.Gopala Krishna Murthy, learned
Counsel for respondent/plaintiff.
6)      Impugning the appellate Judgment, learned counsel for appellants/
defendants argued that the defendants perfected their title by adverse
possession beyond the statutory period of limitation as can be seen from
the facts and evidence which would show that from 1957 till date they
have been in continuous and uninterrupted possession of the suit property
and they raised dry crops and also placed their hayrick and bricks in the
suit property.  The factum of lease was clearly mentioned in Ex.A.3 and
no iota of evidence is produced by the plaintiffs to show that before
selling the property to Bhanumathi under Ex.A.3, the vendor
G.Adilakshmi recovered the suit property from D.1.  Further, PW.2 who
is son of plaintiff admitted that disputes commenced in the year 1970
itself with D.1 relating to the suit property.  All these would cumulatively
show that the defendants have been enjoying the suit property adverse to
the interest of Bhanumathi as well as the plaintiff.  Though they have not
specifically raised a plea in the written statement about the adverse
possession, the substance of their plea is to the same effect.  Learned
counsel submitted that the appellate Court committed grave error in fixing
the burden on the defendants and holding that they failed to discharge the
same.  Learned counsel thus prayed to allow the appeal.
        Learned counsel placed reliance on the following decisions:
(i)     Achal Reddy vs. Ramakrishna Reddiar and others
(ii)    Mohd. Iqbal vs. N.Prabhakar and another
(iii)   Bank of India vs. Lekhimoni Das and others
(iv)    Santakumari and others vs. Lakshmi Amma Janaki Amma    
(dead) by LRs and others
(v)     P.John Chandy and Co. (P) Ltd. vs. John P.Thomas
(vi)    Bondar Singh and others vs. Nihal Singh and others
(vii)   Md. Mohammad Ali (dead) by LRs vs. Jagadish Kalita and
others
(viii)  T. Anjanappa and others vs. Somalingappa and another
7)      Per contra, supporting the judgment learned counsel for
respondent/plaintiff argued that as observed by the appellate Court, the
defendants miserably failed to prove their title because Ex.B.8, even if
assumed to be true, was long after Ex.A.3sale deed and therefore, by
the date of Ex.B.8, G. Adilakshmi had no title or interest in the suit
property to convey to defendants.  He further argued that the adverse
possession is concerned, the defendants have not taken a specific plea in
their written statement and even if the said claim is considered, still it
being a suit for title and possession, when the plaintiff proved her title, the
burden of proving the adverse possession against E.Bhanumathi and
plaintiff rests on the defendants as per Art.65 of the Limitation Act.  He
relied upon the decision reported in P.T.Munichikkanna Reddy and
others vs. Revamma and others  on the aspect of burden of proof.  He
argued that the defendants failed to prove their adverse possession against
Bhanumathi and also plaintiff and therefore, the Appellate Court rightly
granted decree in favour of the plaintiff.  He thus prayed to dismiss this
appeal.
8)      In the light of above rival arguments, the following substantial
questions of law are framed for consideration in this second appeal:
(i)     Whether the Lower Appellate Court is right in holding that
the appellants have not perfected title to the suit scheduled
land when the evidence adduced on behalf of the
respondents itself show the disputes with the appellants
started right from 1970, when admittedly the appellants are
lessees ?
(ii)    Whether the suit is maintainable in the absence of notice
under Sec.106 of Transfer of Property Act to the appellants
herein to vacate?
(iii)   Whether the Lower Appellate Court is right in coming to
the conclusion that the appellants have not perfected their
title to the suit property in view of the fact that they never
demanded any rent and when appellants did not pay rent at
any time and no owner would keep quiet without
demanding rent unless appellants perfected title?
(iv)    To what relief?
9)      POINT Nos.1 and 3: These two points are taken up together since
they are more or less similar and relating to adverse possession of
defendants.  It is not in dispute that G.Adilakshmi was the original owner
of suit schedule property and surrounding property and she purchased
them in two items under Ex.A.1registered sale deed.  Then under
Ex.A.3registered sale deed dt:18.02.1961, she sold the suit property to
E.Bhanumathi.  In the said sale deed, the vendor mentioned that earlier
the suit property was under the lease of D.1 but the lease was determined
and she was selling the property, free from obstructions from the lessee.
Be that it may, E.Bhanumathi gifted the said property to the plaintiff who
is her daughter-in-law under Ex.A.5gift deed dt:08.12.1981.  That is
how the plaintiff  traces her title to the suit property.  According to her,
she was enjoying the property by collecting soap nuts and other usufructs
and in the year 1983, defendants 1 and 2 trespassed into the suit land. So
the plaintiff filed C.C.No.103 of 1984 and the accused/defendants were
convicted by the learned II Additional Judicial First Class Magistrate,
Kakinada in the said C.C.  However, the CRP No.54 of 1985 filed by the
defendants was allowed by the III Additional Sessions Judge, Kakinada
on the ground that it was a civil dispute.  Hence the suit by the plaintiff
for declaration of title and possession.
a)      The case of defendants is that the property belonged to
G.Adilakshmi and she inducted D.1 into tenancy under Ex.B.3lease
deed dt:05.05.1957 and ultimately she sold the suit property to him for
Rs.92/- under an oral sale dt: 05.10.1966 and executed Ex.B.8receipt. It
is the case of the defendants that they are in continuous possession and
enjoyment in their own right and Adilakshmi never gave possession to
E.Bhanumathi.  So also E.Bhanumathi was never in possession of plaint
schedule property and she had no subsisting right to execute any gift deed
dt:08.12.1981.
10)     In the light of above rival contentions and evidence placed on
record, it is clear that the suit is laid by the plaintiff basing on her title
and
for recovery of possession.  In a suit of this nature, the law is clear that
Art.65 of Limitation Act would apply and when once the plaintiff
establishes her title to suit property, the burden will be shifted to the
defendants to prove adverse possession i.e, nec vi, nec clam, nec precario
against Bhanumathi as well as plaintiff beyond the statutory period of
limitation.  Art.65 of the Limitation Act, 1963 prescribes limitation as
follows:

Description of suit
Period of
limitation
Time from which
period begins to run
65.
For possession of immovable property
or any interest therein based on title.
Explanation.-- For the purposes of this
article --
(a) where the suit is by a remainder
man, a reversioner (other than a
landlord) or a devisee the possession of
the defendant shall be deemed to
become adverse only when the estate
of the remainder man, reversioner or
devisee, as the case may be, falls into
possession;
(b) where the suit is by a Hindu or
Muslim entitled to the possession of
immovable property on the death of a
Hindu or Muslim female, the
possession of the defendant shall be
deemed to become adverse only when  
the female dies;
(c) Where the suit is by a purchaser at
a sale in execution of a decree when
the judgment-debtor was out of
possession at the date of the sale, the
purchaser shall be deemed to be a
representative of the judgment-debtor
who was out of possession.
Twelve
years
When the possession
of the defendant
becomes adverse to
the plaintiff.





a)      Then regarding the burden of proof, Honble Apex Court has time
and again reiterated that in a case based on title, Art.65 of the Limitation
Act is applicable and it is suffice for the plaintiff to establish her title and
the burden will be on the defendants to prove the adverse possession.
i)      In Annasaheb Bapusaheb Patil and others vs. Balwant @
Balasaheb Babusaheb Patil (dead) by LRs and heirs etc.  the Apex
Court has observed thus:
Para 13: Article 65 of the Schedule to the Limitation Act, 1963
prescribes that for possession of immovable property or any
interest therein based on title, the limitation of 12 years begins to
run from the date the defendant's interest becomes adverse to the
plaintiff. Adverse possession means a hostile assertion i.e. a
possession which is expressly or impliedly in denial of title of the
true owner. Under Article 65, burden is on the defendants to
prove affirmatively. A person who bases his title on adverse
possession must show by clear and unequivocal evidence i.e.
possession was hostile to the real owner and amounted to a denial
of his title to the property claimed. In deciding whether the acts,
alleged by a person, constitute adverse possession, regard must
be had to the animus of the person doing those acts which must be
ascertained from the facts and circumstances of each case. The
person who bases his title on adverse possession, therefore, must
show by clear and unequivocal evidence i.e. possession was
hostile to the real owner and amounted to a denial of his title to
the property claimed.
ii)     In Md. Mohammad Alis case (7 supra) cited by appellants, the
Apex Court while delineating subtle distinction between the old
Limitation Act, 1908 and the new Limitation Act, 1963 in the matter of
burden of proof of adverse possession, has observed thus:
Para 20: By reason of Limitation Act, 1963 the legal position as
was obtaining under the old Act underwent a change. In a suit
governed by Article 65 of the 1963 Limitation Act, the plaintiff
will succeed if he proves his title and it would no longer be
necessary for him to prove, unlike in a suit governed by
Articles 142 and 144 of the Limitation Act, 1908, that he was in
possession within 12 years preceding the filling of the suit. On the
contrary, it would be for the defendant so to prove if he wants to
defeat the plaintiff's claim to establish his title by adverse
possession.
Para 21: For the purpose of proving adverse possession/ ouster
the defendant must also prove animus possidendi.
iii)    The above point was again reiterated by the Apex Court in
P.T.Munichikkanna Reddys case (9 supra) thus:
3. New Paradigm to Limitation Act
Para 34: The law in this behalf has undergone a change. In terms
of Articles 142 and 144 of the Limitation Act, 1908, the burden of
proof was on the plaintiff to show within 12 years from the date of
institution of the suit that he had title and possession of the land,
whereas in terms of Articles 64 and 65 of the Limitation Act,
1963, the legal position has underwent complete change insofar
as the onus is concerned: once a party proves its title, the onus of
proof would be on the other party to prove claims of title by
adverse possession.
iv)     In M.Durai vs. Madhu and others  the Apex Court held that when
once plaintiff proved his title, burden shifts to the defendants to establish
that he perfected his title by adverse possession.
v)      In Saroop Singh vs. Banto and others  referring Art.64 and 65 of
Limitation Act, the Apex Court observed thus:
Para 26: The statutory provisions of the Limitation Act have
undergone a change when compared to the terms of Articles 142
and 144 of the schedule appended to the Limitation Act, 1908, in
terms whereof it was imperative upon the plaintiff not only to
prove his title but also to prove his possession within twelve
years, preceding the date of institution of the suit. However, a
change in legal position has been effected in view of Articles 64
and 65 of the Limitation Act, 1963. In the instant case, plaintiff-
respondents have proved their title and, thus, it was for the first
defendant to prove acquisition of title by adverse possession. As
noticed hereinbefore, the first defendant- Appellant did not raise
any plea of adverse possession. In that view of the matter the suit
was not barred.
vi)     In T. Anjanappas case (8 supra) cited by appellants, the Apex
Court held thus:
Para 20: It is well recognized proposition in law that mere
possession however long does not necessarily means that it is
adverse to the true owner. Adverse possession really means the
hostile possession which is expressly or impliedly in denial of title
of the true owner and in order to constitute adverse possession
the possession proved must be adequate in continuity, in publicity
and in extent so as to show that it is adverse to the true owner.
The classical requirements of acquisition of title by adverse
possession are that such possession in denial of the true owner's
title must be peaceful, open and continuous. The possession must
be open and hostile enough to be capable of being known by the
parties interested in the property, though it is not necessary that
there should be evidence of the adverse possessor actually
informing the real owner of the former's hostile action.
11)     In the light of above precedential jurisprudence, it has to be seen at
first, whether plaintiff could establish her title to deserve for decree.  It is
an undisputed fact that the Adilakshmi was the owner of the suit property
and other surrounding property.  The defendants have not disputed the
factum of Adilakshmi executing sale deed in favour of Bhanumathi and
also Bhanumathi executing gift deed in favour of plaintiff.  Since his
alleged oral sale covered by Ex.B.8receipt was long after Ex.A.3sale
deed executed by G.Adilakshmi, the said oral sale even if held to be true,
will not confer any title on D.1.  Further, as rightly observed by the
appellate Court, there are some defects in the oral sale claimed by D.1.
He claims to have purchased the property for Rs.92/- whereas Adilakshmi
herself purchased the property in the year 1950 for Rs.300/-.  Even she
sold the said property for Rs.500/- to Bhanumathi.  Therefore, it is hard to
believe that she would sell the suit property for a throw away price of
Rs.92/- to D.1.  Further, D.1 did not secure the title deed of Adilakshmi at
the time of oral sale.  In contrast, Bhanumathi collected the title deed of
Adilakshmi at the time of Ex.A.3. For these reasons, the parallel title
setup by D.1 as against the plaintiff cannot be accepted.  On the other
hand, the plaintiff could establish her title by virtue of Ex.A.5gift deed.
Hence, going by the above precedents, the plaintiff prima facie deserves
decree.  However, the claim of adverse possession of defendants needs to
be discussed.
12)     Going by the law, the burden is heavy on the defendants to
establish by cogent evidence that they have been enjoying the suit
property to the knowledge of Bhanumathi and plaintiff, adverse to their
interest beyond the statutory period.
a)      Firstly, defendants claim continuous and adverse possession basing
on the recitals in Ex.A.3.  Their claim is that admittedly D.1 was the
tenant under G.Adilakshmi and no evidence is placed by the plaintiff to
show that Adilakshmi secured possession of the suit property from D.1
before selling the same to Bhanumathi and hence it shall be deemed that
they are in continuous and uninterrupted possession.  This argument is
untenable for the reason that though in Ex.A.3 Adilakshmi admitted that
the suit property was initially under the lease of D.1 but she emphatically
stated that the lease was determined and she was delivering the possession
to Vendee without any obstructions from the lessee.  If it is the contention
of D.1 that inspite of the said recital, he still continued in possession
more-so against the interest of Bhanumathi and plaintiff, it is for him to
establish the said fact by adducing evidence. On the contrary, he cannot
throw burden on plaintiff to show that Adilakshmi obtained receipt from
D.1 delivering the suit property.  As rightly observed by the appellate
Court, the Commissioners Report and other evidence would show that
the property to the North of the disputed property was sold by Adilakshmi
to Gangamma and Rameshwarapu Chalapathi. D.1 claimed the entire  
property including the said alienated property.  Unless D.1 handed over
the property to Adilakshmi, she could not convey and handover the
property to Gorla Gangamma and Rameshwarapu Chalapathi.  This would  
indicate that as recited in Ex.A.3, Adilakshmi got back the property from
D.1 before alienating the same to Bhanumathi.
b)      Nextly, the adverse possession was sought to be proved claiming
that D.1 cultivated the land till 1966 as tenant by paying annual rent of
Rs.15/- and after purchasing the same in the year 1966 he raised Chollu
and Gantulu and also some Vegetable plants for about 4 or 5 years and
later he used the land for keeping cattle and hayricks and bricks.  DW.1
the son of D.1 gave evidence in that regard.  However, the documentary
evidence including the photos filed by defendants would show that the
suit property is a barren land and it never had any traces of cultivation.
The defendants also not produced the copies of cultivation adangals
showing that they have cultivated the suit land more-so to the knowledge
and against the interest of Bhanumathi and plaintiff.  So this argument
cannot be accepted.
13)     The defendants tried to clench the admission of PW.2 in their
endeavor to prove their adverse possession.  PW.2 made a stray admission 
in his cross-examination that the disputes commenced from the year 1970 
onwards with D.1.  Thus the claim of defendants is that ever since 1957
they were in possession of the suit property and therefore, in 1970 when
Bhanumathi claimed property by virtue of her sale, the D.1 asserted his
title and possession against her and in that view, the present suit which is
filed long after, is barred by limitation.  This argument does not hold
water.  PW.2 is the son of plaintiff.  In his cross-examination no doubt he
made some admissions.  For instance, he deposed as if the suit property
was in possession of plaintiff since 1970 when Bhanumathi handed over
the possession.  He also admitted that disputes commenced from the year 
1970 onwards with D.1.  He further admitted that D.1 used to come to the
site and go away and he used to obstruct their entry into the site from the
beginning.  Now the point is whether these admissions would amount to
establishment of adverse possession by the defendants.  PW.2 was born in 
the year 1959 and he was 11 years old by 1970.  In view of his tender age
by 1970, it is difficult to believe his words that his mother obtained
possession of suit property in 1970 itself.  In contrast, plaintiff (PW.1) in
her evidence stated that she obtained possession of the property one week
after execution of Ex.A.5.  Therefore, the evidence of PW.2 with regard to
delivery of possession cannot be viewed seriously.  Similarly his other
admission that the disputes commenced from the year 1970 onwards with  
D.1 also cannot be taken seriously as by 1970, PW.2 was only a tender
aged boy.  Therefore, his evidence will not clinch the adverse possession.
So none of the points raised by the appellants would clinchingly establish
that defendants have enjoyed the suit property openly, continuously and
against the right, title and interest of Bhanumathi and plaintiff beyond the
statutory period of limitation. The appellate Court upon proper
consideration of the facts and evidence rightly held that the plaintiff
deserved decree in her favour and the said finding does not suffer any
legal infirmity.  The other decisions cited by the appellants will not
improve their case.
14)     POINT No.2: It is the case of the plaintiff that the defendants are
trespassers into the suit land and not the tenants as on the date of suit.
Therefore, the question of their issuing quit notice under Sec.106 of
Transfer of Property Act, does not arise.  Hence, the argument that the suit
is not maintainable without issuing notice under Sec.106 of T.P Act is
unsustainable.
15)     POINT No.4: In view of the above findings on the substantial
questions of law raised by the appellants, I find no merits in this Second
Appeal and the same is accordingly liable to be dismissed.
        In the result, this Second Appeal is dismissed by confirming the
judgment and decree dt:14.02.2003 in A.S.No.194 of 1997 passed by the
VII Additional District Judge, Kakinada decreeing the plaintiffs suit. The
time for eviction is two (2) months from the date of this judgment.  No
costs in this Second Appeal.
        As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_________________________  
U. DURGA PRASAD RAO, J    
Date: 29.03.2016