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Sunday, November 15, 2015

Sec.13 of Hindu Marriage Act- Divorce =mere filing criminal case is not cruelty =unless the allegations are per se illegal and unlawful from the conduct is per se wild, bad and unlawful to make that itself constitutes act of cruelty; in other respects every conduct alleged that tantamounts to cruelty must be proved by preponderance of probabilities and even the giving of police report or filing of complaint or pursuing of the case under Section 498-A IPC and Sections 4 & 6 of D.P Act by wife against the husband or his family members per se do not constitute cruelty including from the result of acquittal therein; in the absence of showing and proving by the husband that the complaint filed or report given or pursuing of the case is aimed to harass and ill treat the husband that constitute mental cruelty. Equally mere allegations appearing wild or grave in the pleadings of the parties, if not proved does not constitute cruelty; in the absence of evidence showing the same are false or made with intend to ill-treat or harass; by disproving said allegations. ;continuous period of two years desertion = there must be a continuous period of two years desertion on the part of the other spouse to put an end to marital tie with an intention to live away and without any mind to join. Here that is totally lacking in the case as rightly concluded by the trial Court and suffice to hold that there is no factual foundation to establish desertion or construction desertion. ;husband cannot take advantage of his own faults= Having regard to the above as rightly concluded by the trial Court, the husband cannot take advantage of his own faults, for no fault of the wife in driving out her from the marital home and for the sake of record having filed restitution of conjugal rights with no mind and even wife expressed her willingness to join and even after the restitution of conjugal rights petition allowed, he did not execute much less served any notice to her to come and join and further even not allowed her to join and even case registered for the offence under Section 498-A IPC from his demands to part with the property having driven out when she tried to join by proceeding with her mother (RW.2) and PW.3 (that is proved from their evidence) he beat her and demanded to part with her property in his name to alienate and further when she was attending Court to give evidence she was way laid and beaten for which another case registered where he was convicted. Thus, there is neither desertion nor cruelty on the part of the wife, but for cruelty and desertion on the part of the husband. ;irretrievably broken down of marriage is not a ground for divorce.= It is needless to say that it is one of the contentions of the appellant/husband that after December, 1997, the parties are living separately and that is a ground for divorce. As held in the expressions supra, irretrievably broken down of marriage is not a ground for divorce. It is needless to say even the amendment proposed after Naveen Kohli (1 supra) and Samar Ghosh (7 supra) to make it a ground for divorce and that was even recommended by the law commission, it could not fructify in the Parliament. Accordingly, the point No.1 is answered.

THE HONBLE SRI JUSTICE R.SUBHASH REDDY And THE HONBLE DR. JUSTICE B.SIVA SANKARA RAO              

C.M.A. No.4575 OF 2004  

19-02-2015
       
Sri Anchuri Subbaraju, S/o.Gangaraju,Hindu, male, aged 36 years, employee,In
Naval Dock Yard (V), Employee No.19231, C.No.140, resident of
Rly.Q.No.58/A,Marripalem, Visakhapatnam....APPELLANTVERSUS      

Smt.Anchuri Sunitha, W/o.Subbaraju, Hindu, male, aged 29 years, House wife,
R/o.C/o.Kadiyala Lakshmi, D.No.3-1, Akkireddypalem, Visakhapatnam....RESPONDENT      

Counsel for Appellant: Smt.N.(P) Anjana Devi

Counsel for Respondent : Sri V.Ajay Kumar

<GIST:

>HEAD NOTE:  

? Cases referred
1.      (2006) 4 SCC 558
2.      AIR 1975 SC 1534
3.      1988 SCC (Cri) 60
4.      1950 (2) All ER 398 at P.403 h
5.      (1994) 1 SCC 337
6.      (2002) 2 SCC 73
7.      (2007) 4 SCC 511
8.      AIR 2011 SC 114 (1)
9.      AIR 2003 SC 2462
10.     (2014) 7 SCC 640
11.     2005 (2) SCC 22
12.     2009 (1) SCC 422
13.     2013 (5) SCC 226
14.     (1999) 3 SCC 620
15.     2014 (4) ALD 531 (DB)
16.     2013 (4) ALD 680
17.     2000 (1) ALD 697 (DB)
18.     2013 (5) ALD 230 (DB)
19.     2013 (4) ALD 416 (DB)
20.     2014 (1) ALD 719 (DB)
21.     2014 (2) ALD 437 (DB)
22.     2014 (2) ALD 360 DB
23.     AIR 1999 AP 1 (DB)
24.     1995 (3) ALD 195(DB)
25.     1992 ALT 631
26.     AIR 1982 P & H 60
27.     AIR 1957 SC 176
28.     AIR 1964 SC 40


THE HONBLE SRI JUSTICE R.SUBHASH REDDY        
And
THE HONBLE DR. JUSTICE B.SIVA SANKARA RAO        
C.M.A. No. 4575 OF 2004

JUDGMENT: (per Honble Dr. Justice B.Siva Sankara Rao)


      Aggrieved by the dismissal order dated 11.09.2003 passed in
O.P. No.396 of 2000 on the file of the Judge, Family Court,
Visakhapatnam, (for short, 'the trial Court'), the unsuccessful
petitioner preferred this appeal.
      2.        The brief facts of the case are as under:
      The petitioner/husband filed the O.P. No.396 of 2000 on the
file of the Judge, Family Court, Visakhapatnam, against the
respondent/wife for dissolution of their marriage dated 26.06.1997,
performed as per Hindu rites and customs at Godavari Kalayna
Mandapam of Simhachalam in Visakhapatnam, under Section 13 (1)  
(ia) and (ib) of the Hindu Marriage Act (for short the Act) on the
grounds of cruelty and desertion.

      3.        After contest, the trial Court dismissed the petition with
costs on 11.09.2003.  Impugning the same, he preferred the appeal
with contentions in the grounds of appeal as well as the oral
submissions made by the counsel for the appellant in support of it
that the dismissal decree and order of the lower Court are contrary
to law, weight of evidence and probabilities of the case; that the
Court below should have seen that the respondent/wife knowingfully
and willfully refused to join the petitioner/ husband even after
passing restitution of conjugal rights in O.P. No.450 of 1997 and she
also filed false complaint under Section 498-A IPC against him and
his parents on 24.10.1998 before V Town Police Station,
Visakhapatnam which was registered as Crime No.192 of 1998 and  
later from the charge sheet filed, numbered as CC No.180 of 1999
on the file of III Metropolitan Magistrate, Hyderabad, that was not
properly appreciated by the lower Court; that the lower Court should
have seen from the material that the respondent/wife has no mind
to lead marital life with him and that is the reason of her avoiding
him for one way or the other all through and her acts tantamount to
cruelty and desertion and hence to allow the appeal.

      4.        Whereas it is the contention of the learned counsel for
the respondent/wife in opposing the claim and in support of the
lower Courts dismissal decree and order that the petitioner/husband
did not come to court with clean hands and suppressed material
facts to take advantage of his own wrongs, that she is always ready
to join him and it is he, for her not obliging his demands to alienate
the property given to her by her mother, on one pretext or the
other, want to get rid of her and driven her out of his house and
falsely filed O.P for restitution of conjugal rights, that when she was
ready to join him the same was decreed and even thereafter when
she went to his house along with her mother (RW.2), mediator
(RW.3) she was beaten and not allowed to join reiterating the
demand for the property for which she was constrained to give a
complaint that was registered as crime No.192 of 1998 and covered
by CC No.180 of 1999 on the file of III Metropolitan Magistrate,
Visakhapatnam.  She contends that while the criminal case was
pending, when the respondent/ wife was attending the Court to give
evidence in the matter, the petitioner/ husband made assault and
threatened her not to give evidence against him and one
Simhachalam, for which she lodged a complaint covered by C.C
No.270 of 2000 on the file of the V Metropolitan Magistrate,
Visakhapatnam.  After due enquiry, the petitioner was found  guilty
for the offences under Sections 323, 341 and 506 IPC and was
released on admonition under Section 3 of the Probation of
Offenders Act, instead of sentencing him to jail; that what the Court
held under Section 498-A IPC in giving benefit of doubt is even
proved of the demands to alienate the property and when she along
with her mother and another mediator went to their house to join
back the husband, she was beaten, same does not constitute the
offence under Section 498-A IPC.  There was no observation that it
was a false complaint or intended to harass her husband and
thereby that cannot be taken advantage by him.  She further
contends that the suit for maintenance filed by her was for inability
to maintain and for she was not allowed to join him and the trial
Court, after considering all these facts, rightly dismissed the divorce
claim for no grounds on cruelty or desertion, and thus for this Court
while sitting in appeal there is nothing to interfere, hence to dismiss
the appeal.

      5.        Perused the material available on record including the
expressions referred by both sides in support of their rival
contentions.  The parties hereinafter are referred to as they are
arrayed before the trial Court for the sake of convenience in the
appeal.

      6.        Now the points for consideration are:
1.      Whether there are any grounds of desertion or
cruelty that entitles the appellant/ petitioner
husband to dissolve the marital tie with
respondent dated 26.06.1997; and if so, the
lower Courts dismissal decree and order is
unsustainable and requires interference by this
Court while sitting in appeal and if so, with what
observations?

2.      To what result?

POINT NO.1:
      7.        The undisputed facts are that the marriage of the
petitioner/husband was performed on 26.06.1997 with
respondent/wife at Godavari Kalyana Mandapam, Simhachalam,  
Visakhapatnam as per Hindu Rites and customs and they lived
happily after their marriage was consummated for few months.
There is also no dispute on the fact that the husband filed O.P
No.450 of 1997 for restitution of conjugal rights (covered by Ex.A1-
order) that was allowed on 30.06.1999 in directing the
respondent/wife to join the petitioner/husband.   Admittedly, he had
not been filed any execution petition much less addressed any
notice or any letter directing his wife to come and join.   It is also
not in dispute that the wife lodged a report under Section 498-A IPC
against the husband and his parents on 24.10.1998 that was
registered as crime No.192 of 1998 and after investigation the police
filed charge sheet and the same covered by CC No.180 of 1999, was
ended in acquittal after trial on 08.05.2000 vide Ex.A4 judgment.
To say that, Exs.A2 and A3 demand notices said to have sent to his
wife to come and join allegedly on 30.07.1999 and 30.12.1999,
there is no proof of sending the same to the respondent/ wife much
less any proof of service.   The other fact also not in dispute is that
in CC No.270 of 2000 on the file of the V Metropolitan Magistrate,
Visakhapatnam, after trial, on the report of the wife against the
husband, his father and his fathers friend one Simhachalam for the
offences punishable under Sections 323, 506 r/w 34 IPC, on trial the
same was ended in conviction and the petitioner/husband was
admonished and released for good conduct under the Probation of
Offenders Act.

      8.        Now coming to decide whether there are any grounds
of cruelty or desertion on the part of the respondent/wife against
the petitioner/husband with no fault of him;  the contention of the
wife is that after marriage there were demands to meet the
additional dowry and her mother executed a document in her favour
and in favour of her sisters equally and the petitioner/husband
demanded her to part with the property of her to alienate or to
convey in his name which she did not oblige and it is therefrom the
petitioner/ husband started harassing her one way or the other and
wanted to get rid of her and necked her out.   Ex.A7 is the Xerox
copy of the agreement dated 11.06.1997 filed by the husband that
substantiates the said version of the respondent/wife of some
property was given to the respondent/ wife by her mother therein,
which is before 15 days before their marriage dated 26.06.1997.   It
is his contention that the so called demand is untrue and he never
demanded to convey the property in his name much less to alienate.
According to him, it is the respondent that left his company on
27.08.1997 claiming that she was carrying and later did not turn up
in spite of he made requests personally and through elders and
thereby, she deserted him and later filed false criminal cases to
harass that also constitutes cruelty and he is entitled to divorce.

      9.        Coming to the aspect of the alleged mental cruelty
suffered by the petitioner/husband in the hands of respondent/wife
including from her giving of report under Section 498-A IPC and the
case ended in acquittal concerned, it is important to note what
constitutes cruelty.   The Apex Court in Naveen Kohli vs Neelu
Kohli  at para No.35 categorically observed that:
        35. The petition for divorce was filed primarily
on the ground of cruelty.  It may be pertinent to note
that, prior to the 1976 Amendment in the Hindu
Marriage Act, 1955 cruelty was not a ground for
claiming divorce under the Hindu Marriage Act.   It
was only a ground for claiming judicial separation
under Section 10 of the Act.   By the 1976
Amendment, cruelty was made a ground for divorce
and the words which have been omitted from Section
10 are as to cause a reasonable apprehension in the
mind of the petitioner that it will be harmful or
injurious for the petitioner to live with the other
party.   Therefore, it is not necessary for a party
claiming divorce to prove that the cruel treatment is
of such a nature as to cause an apprehension  a
reasonable apprehension  that  it will be harmful or
injurious for him or her to live with the other party.

      10.       From this referring to earlier expression in
N.G.Dastane vs. S.Dastane at para No.30 observed as follows:

The enquiry has to be whether the conduct charged
as cruelty is of  such a character as to cause in the
mind of the petitioner a reasonable apprehension
that it will be harmful or injurious for him to live with
the respondent.

        11.     It is therefrom clear that though prior to 1976
Amendment of Hindu Marriage Act, 1955, cruelty is only made a
ground for judicial separation and not for divorce, later it was made
a ground for divorce and it also removed the rigour of the proof as
to reasonable apprehension in the mind of the petitioner that it
would be harmful or injurious to live with other party that is since
removed.   What is thus required to prove as held in Navin Kohli (1
supra) ultimately was, as laid down in Shobha Rani vs. Madhukar
Reddi  at para No.47 that:

The Cruelty has been used in Section 13 (1) (i-a) of
the Act in the context of human conduct or behaviour
in relation to or in respect of matrimonial duties or
obligations.  It is a course of conduct of one which is
adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional.   If it
is physical, it is a question of fact and degree.   If it is
mental, the enquiry must begin as to the nature of
the cruel treatment and then as to the impact of such
treatment on the mind of the spouse.   Whether it is
caused reasonable apprehension that it would be
harmful or injurious to live with the other, ultimately,
is a matter of inference to be drawn by taking into
account the nature of the conduct and its effect on
the complaining spouse.   There may, however, be
cases where the conduct complained of itself is bad
enough and per se unlawful or illegal.   Then the
impact or the injurious effect on the other spouse
need not be enquired into or considered.   In such
cases, the cruelty will be established if the conduct
ifself is proved or admitted.


      12.       It is therefrom observed that if the conduct and
allegations are such an extent showing by enough and per se
unlawful or illegal if that conduct or allegations proved that
constitutes mental cruelty.   It is to say unlawful or illegal and bad
conduct per se constitutes cruelty and that was the act of cruelty
must be proved as every conduct and every allegation or accusation
does not tantamount to cruelty.   The expression also cautioned the
consideration of the words mental cruelty to grant or refusal of relief
on determination of facts of each case for no definition under the
Hindu Marriage Act and for no uniform principle for all cases to lay
down

      13        But to keep in mind that of Lord Denning L.J in
Kaslefsky vs Kaslefsky
If the door of cruelty were opened too wide, we
should soon find ourselves granting divorce for
incompatibility of temperment.  This is an easy path
to tread, especially in undefended cases.  The
temptation must be resisted lest we slip into a state
of affairs where the institution of marriage itself is
imperilled.

      14.       In V.Bhagat vs. D.Bhagat , the Apex Court held at
para No.16 is as follows:
16.    Mental cruelty in Section 13 (1) (ia) can
broadly be defined as that conduct which inflicts
upon the other party such mental pain and suffering
as would make it not possible for that party to live
with the other.   In other words, mental cruelty must
be of such a nature that the parties cannot
reasonably be expected to live together.   The
situation must be such that the wronged party
cannot reasonably be asked to put up with such
conduct and continue to live with the other party.   It
is not necessary to prove that the mental cruelty is
such as to cause injury to the health of the
petitioner.   While arriving at such conclusion, regard
must be had to the social status, educational level of
the parties, the society they move in, the possibility
or otherwise of the parties ever living together in
case they are already living apart and all other
relevant facts and circumstances which is neither
possible nor desirable to set out exhaustively.   What
is cruelty in one case may not amount to cruelty in
another case.   It is a matter to be determined in
each case having regard to the facts and
circumstances of that case.   If it is a case of
accusations and allegations, regard must also be had
to the context in which they were made.

         15.    Thus, proved from Bhagat (5 supra) and Shobha
Rani (3 supra) concluded with approval in Naveen Kohli (1 supra)
but for the allegations per se unlawful or illegal and the conduct per
se bad or unlawful to constitute cruelty once that is proved; in so far
as other allegations and counter allegations of conduct concerned,
whether it is accusation or allegation as the case may be per se not
proved even that is proved and regard must also be had to the
context in which they were made without simply acting on it.

      16.       Even in Savithri Pandey vs. Prem Chandra
Pandey , it was observed that whether an act constitutes cruelty or
not, the Court must keep in mind that to distinguish the same from
ordinary way and deter family life, as it cannot be said on the basis
of sensitivity or the veracity but for to adjudge on the basis of the
course of conduct which would in general be dangerous to the
spouse with the other spouse or not possible to live together.

      17.       It was in the said expression Naveen Kohli (1 supra)
referring to Bhagat (5 supra) held that irretrievable break down of
marriage even not a ground for divorce, it cannot be ignored from
consideration in appreciation of the evidence as to there is a cruelty
or not therefrom also for long separation between the parties and
no possibility of reunion.

      18.       In Naveen Kohli (1 supra), the Apex Court therefrom
laid down broad guidelines of what constitutes cruelty.  By noticing
with approval of the guidelines in Naveen Kohli (1 surpa) and the
three judges bench expression of the Apex Court in Samar Ghosh
vs Jaya Ghosh  held at para No.101 as under:
   101. No uniform standard can ever be laid
down for guidance, yet we deem it appropriate to
enumerate some instances of human behaviour
which may be relevant in dealing with the cases of
mental cruelty.   The instances indicated in the
succeeding paragraphs are only illustrative and not
exhaustive.

(i)     On consideration of complete matrimonial
life of the parties, acute mental pain, agony
and suffering as would not make possible
for the parties to live with each other could
come within the broad parameters of mental
cruelty.
(ii)    On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that
the wronged party cannot reasonably be
asked to put up with such conduct and
continue to live with other party.
(iii)   Mere coldness or lack of affection cannot
amount to cruelty, frequent rudeness of
language, petulance of manner, indifference
and neglect may reach such a degree that it
makes the married life for the other spouse
absolutely intolerable.
(iv)    Mental cruelty is a state of mind.   The
feeling of deep anguish, disappointment,
frustration in one spouse caused by the
conduct of other for a long time may lead to
mental cruelty.
(v)     A sustained course of abusive and
humiliating treatment calculated to torture,
discommode or render miserable life of the
spouse.
(vi)    Sustained unjustifiable conduct and
behaviour of one spouse actually affecting
physical and mental health of the other
spouse.  The treatment complained of and
the resultant danger or apprehension must
be very grave, substantial and weighty.
(vii)   Sustained reprehensible conduct, studied
neglect, indifference or total departure from
the normal standard of conjugal kindness
causing injury to mental health or deriving
sadistic pleasure can also amount to mental
cruelty.
(viii)  The conduct must be much more than  
jealously, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and
emotional upset may not be a ground for
grant of divorce on the ground of mental
cruelty.
(ix)    Mere trivial irritations, quarrels, normal
wear and tear of the married life which
happens in day-to-day life would not be
adequate for grant of divorce on the ground
of mental cruelty.
(x)     The married life should be reviewed as a
whole and a few isolated instances over a
period of years will not amount to cruelty.
The ill conduct must be persistent for a
fairly lengthy period, where the relationship
has deteriorated to an extent that because
of the acts and behaviour of a spouse, the
wronged party finds it extremely difficult to
live with the other party any longer, may
amount to mental cruelty.
(xi)    If a husband submits himself for an
operation of sterilisation without medical
reasons and without the consent or
knowledge of his wife and similarly, if the
wife undergoes vasectomy or abortion
without medical reason or without the
consent or knowledge of her husband, such
an act of the spouse may lead to mental
cruelty.
(xii)   Unilateral decision of refusal to have
intercourse for considerable period without
there being any physical incapability or valid
reason may amount to mental cruelty.
(xiii)  Unilateral decision of either husband or wife
after marriage not to have child from the
marriagemay amount to cruelty.
(xiv)   Where there has been a long period of
continuous separation, it may fairly be
concluded that the matrimonial bond is
beyond repair.   The marriage becomes a
fiction though supported by a legal tie.   By
refusing to sever that tie, the law in such
cases, does not serve the sanctity of
marriage; on the contrary, it shows scant
regard for the feelings and emotions of the
parties.   In such like situations, it may lead
to mental cruelty.

      19.       It is there from held in Samar Ghosh (7 supra) that
taking into consideration of the afore mentioned factors along with
important circumstances that the parties are admittedly living
separately for more than sixteen-and a half years (since 27.08.1990)
the irresistible conclusion would be that matrimonial bond has been
ruptured beyond repair because of the mental cruelty caused by the
respondent and entire substantum of marriage has already
disappeared, hence granted decree of divorce on facts.  Now the
above principle say long living separately is also one of the factors
regarding marriage break down to be kept in mind.

      20.       Referring to the expressions of Samar Ghosh (7
supra) and Naveen Kohli (1 supra) in the later expression of the
Apex Court in Gurubux Singh Vs. Harminder Kaur , it was held
that

   No conduct can be dubbed as cruelty in all
circumstances and it is for the petitioner complaining
of cruelty against the respondent to make out
specific case that a particular conduct may amount to
cruelty in one case but the same conduct necessarily
may not amount to cruelty due to change on various
factors in a different set of circumstances.  Therefore
it is essential for the appellant who claims relief to
prove that a particular part of conduct or behaviour
resulted in cruelty.  It cannot be assumed that
particular conduct will under all circumstances
amount to cruelty, vis-a-vis, the other party.  No
prior assumptions can be made in such matters.   The
aggrieved party has to make a specific case that the
conduct of which exception is taken, amounts to
cruelty.

      21.       Needless to say even a single act of violence which is of
grievous and inexcusable nature satisfies the test of cruelty.
However, in deciding whether in a particular case, the cruelty
complained constitutes a ground of divorce, the marital life should
be assessed as a whole and a few isolated instances over certain
period will not amount to cruelty.  It is also observed that for the
acts of cruelty complained by subsequent act of the complainant
party tantamounts to condonation that cannot be made a ground to
seek the relief.

      22.       So far as the allegations in the counter or reply whether
tantamounts to cruelty or not concerned, it is categorically observed
that mere allegations per se do not constitute cruelty in the absence
of any evidence in this regard of such allegations constitute cruelty
to decide by Court by framing any issue or point for consideration
and without that such an allegation cannot be taken as a basis for
granting divorce.

      23.       In this regard, the Apex Court in Gurubux singh (8
supra) by distinguishing the earlier expression in Vijaykumar
Ramchandra Bhate vs. Neela Vijaykumar Bhate , held that all
the allegations made in the written statement or the allegations
specified in the course of cross examination by itself does not
tantamount to cruelty though it was held as cruelty in the earlier
expression.

      24.       In the later expression of the Apex Court in Malathi
Ravi, M.D vs. B.V.Ravi, M.D  regarding cruelty, it was observed
that the false and vexatious criminal proceedings, by the wife
against her husband and his family members also, under Section
498-A, 506 r/w 34 IPC where the facts show it is after the husband
filed divorce case, wife intentionally filed that criminal case, that has
to be taken into consideration in deciding such false and vexatious
criminal proceedings constitutes mental cruelty.   On facts, it was
held that constitutes mental cruelty for the reason that after
returning the letters of the husband with no response, the wife all of
a sudden joined the husband having coming with her relative who is
working in Police Department and with no time the wife lodged
criminal complaint regarding dowry against husband and his parents
and cause them arrested by influencing the police for the offences
under Sections 498-A, 506 r/w 34 IPC and Sections 3  & 4 of  Dowry
Prohibition Act and the husband was sent to jail, till grant of bail
though his family members could avail but not himself the benefit of
anticipatory bail which are resulted after dismissal of the divorce
application of the husband from which he vexed with her conduct
and filed the appeal with delay condonation and the delay
condonation thereby allowed. Ultimately, it was held that those acts
constitute cruelty or not to decide the Court can also take into
consideration the subsequent conduct and subsequent events from
the undisputed material and for that placed reliance on the earlier
expressions in A.Jayachandra vs Aneel Kaur , Suman Kapur
vs. Sudhir Kapur .

      25.       In the other recent expression of the Apex Court dated
19.11.2014 in Civil Appeal No.1213 of 2006 between K.Srinivas vs
K.Sunitha, for entitlement of divorce by husband on the ground of
cruelty from the Criminal proceedings, it was observed that the
Criminal complaint filed by the wife against the husband and several
family members under Section 498-A IPC and Sections 3 & 4 of
Dowry Prohibition Act, Section 307 (3), 384, 148 r/w 34 IPC on the
facts show the filing of the false criminal case and the expression of
the Apex Court in K.Srinivas Rao vs D.A.Deepa  was considered
and held as delivered a well reasoned judgment; therefrom
observed that it is now beyond doubt that, if a false criminal
complaint is lodged by either spouse, it would invariably and
undoubtedly constitute mental cruelty such as would make entitle
other spouse to get divorce.

      26.       Coming to K.Srinivasa Rao (13 supra) where it was
also held that a false complaint or false criminal proceedings and
indecent and defamatory statements made in the complaint or
criminal proceedings and wife not satisfied with the acquittal
judgment of the trial court of all other family members, pursued the
matter by filing revision seeking for their conviction and also against
the husband alleging insufficiency of sentence.  Her pursuing the
higher forms despite acquittal clearly speaks the same singly and
cumulatively amount to mental cruelty warranting grant of divorce.
It was also observed that making indecent and defamatory
allegations against the spouse or his or her relations in the pleadings
filed or presented a false complaint or issuing notice or news items
which may have adverse impact on the job or business prospects of
other spouse are the illustrative cases of mental cruelty which would
warrant grant of divorce.

      27.       For that conclusion, the Apex Court referred the earlier
expressions in Samar Ghosh (7 supra) Naveen Kohli (1 supra),
Vijaykumar (9 supra), Bhagat (5 supra)  and also considered the
factum of husband and wife having living separately for more than
10 years with unbridgeable distance between them created from the
outcome of false accusations and prosecuting the criminal
proceedings and pursuing them vehemently to say the marriage is
broken down irretrievably that can be considered as one of the
circumstance in appreciation of the facts and other aspects whether
constitutes cruelty or not.
      28.       In S.Hanumantha Rao vs. S.Ramani  the Apex
Court held that wifes parents seeking help of the police in bringing
about reconciliation between estranged spouses per se does not
constitute mental cruelty or said complaint under Section 498-A IPC
even registered for the reconciliation efforts made and there is no
evidence of the wifes relatives and wife, against the husband and
his relatives harassed through police, even the panic husband and
his family members obtain anticipatory bail or regular bail, that
cannot constitute mental cruelty.

      29.       This Court in Katada Baby @ Kollati Baby vs.
Katada Sri Venkata Satya Raja Sekhar  held that the factum of
lodging complaint under Section 498-A IPC or filing of suit or claim
for maintenance by wife against the husband cannot be considered
as mental cruelty to make out as a ground for divorce and for that
conclusion also referred the expressions in Akuladevi Padmaja vs
Akula Veera Venkata Satyanarayana  Anagalla Padmalath  
Vs A.Sudarshan Rao  Ganti Srinivas vs. G.Vasantha ,
Lakshmi Chaitanya vs. B.Sharat Chandra , and other
expressions.  It was also held that without proof of the allegations
are false and untrue and made to harass, mere pursuing legal
remedy or filing of complaint or criminal case under Section 498-A
IPC not a ground for dissolving the marriage on the claim of cruelty.

      36.       In Vytla Alivelu Manga Devi vs. Vytla Venkata
Lakshmi Narasimha Palla Rao  it was also held that giving of
report or filing of complaint under Section 498-A IPC would not per
se constitute cruelty. It was held that the defence before the Court
seeking divorce on the ground of cruelty must be consistent to the
satisfaction of the Court and any benefit of doubt in acquittal of the
accused husband and his family members in a criminal case must
not result in suspending of marriage; as the legal provision availed
by wife against husband after she was driven out from the
matrimonial home with harassment or dowry demand would not per
se constitute a ground for cruelty.   It is only where a complaint is
given with false allegations and with a mind to harass the husband
and the same when proved, constitutes cruelty.

      31.       Further in V.Venkateshwarlu vs. Mamatha  in this
regard held that, even filing of complaint under Section 498-A IPC
by wife itself cannot be treated as act of cruelty, notwithstanding
acquittal of accused therein and the intention of the Parliament in
enacting Section 498-A IPC and other related provisions, was to
protect woman spouse, than to create avenue or opportunity for
male spouse to seek divorce solely on basis of institution of such
proceedings.   Unless such a ground of cruelty not proved as
outcome to harass and with false allegations mere filing of a report
or complaint does not tantamount to cruelty and the allegations
cannot be considered per se false and malafide.  Further in another
expression of this Court in P.Jayaram vs P.Sudha Laxmi  also, in
this regard it was held that the wife insisted for separate residence
which made the husband to take the residence near to his parents
house by itself, is not a ground to constitute cruelty on the party of
husband so also giving of report and filing of complaint under
Section 498-A IPC and sections 4 & 6 of Dowry Prohibition Act in the
absence of proof by husband that the very filing of complaint or
giving or report was motivated and aimed to harass him and his
family members, in holding the husband is not entitled on that
ground for divorce by claiming as cruelty.

      32.       Further a Division bench of this Court in N.K.Somani
vs.P.Somani   observed referring to several expressions that it is
essential for the petitioner who claims relief to prove that a
particular part of conduct or behaviour resulted in cruelty.   It is
observed that without such proof, no prior assumptions to be made,
nor it can be assumed that a particular conduct in a set of
circumstances amount to cruelty; as particular conduct may amount
to cruelty for one case may not necessarily amount to cruelty in
another case, due to change of various factors and in different set of
circumstances.   Thus, judgments of Courts are not to be construed
as statues.  A decision ordinarily is a decision on the case before the
Court, while the principle underlying the decision could only be
binding as the precedent in a case which comes up subsequently by
ascertaining the true principle laid down in that previous decision.

      33.       It was also observed in N.K.Somani (23 supra)
differing to the earlier expression of this Court in Jayakrishna
Panigrahi vs. Surekha Panigrahi of the allegations made in the
written statement not proved, will amount to cruelty is not correct.
It is to say such allegations are to be proved as wild, baseless, false
or the like as per Section 3 of the Indian Evidence Act, which defines
proved, not proved and disproved.   As per which, a fact is said to
be not proved, when it is neither proved nor disproved and as such
unless the allegations are disproved which is akin to say false, wild
or baseless to make a ground of that tantamount to cruelty, mere
allegations not proved which may be true or may not be true cannot
be taken as wild or baseless or false to say those constitute mental
cruelty.  For that conclusion this Court in N.K.Somani (23 supra)
placed reliance on the proposition, laid down in the earlier
expression of this Court in Lalitha Kumari vs. K.Ram Prasada
Rao  that followed a division bench expression of the Punjab &
Haryana High Court in Paras Ram vs. Kamlesh  and in
concluding that in order to succeed that the allegations made in the
pleadings by the opposite party to constitute cruelty, those
allegations must be disproved by showing false or wild or baseless
and there from constitute the mental cruelty; as unless truth or
falsity of such allegations establish one way or other, no legal
consequences can flow therefrom for the purpose of deciding cruelty
or not under Section 13 (1) (ia) of Hindu Marriage Act.

      34.       Having regard to the above propositions referred supra;
unless the allegations are per se illegal and unlawful from the
conduct is per se wild, bad and unlawful to make that itself
constitutes act of cruelty;  in other respects every conduct alleged
that tantamounts to cruelty must be proved by preponderance of
probabilities and even the giving of police report or filing of
complaint or pursuing of the case under Section 498-A IPC and
Sections 4 & 6 of D.P Act by wife against the husband or his family
members per se do not constitute cruelty including from the result
of acquittal therein; in the absence of showing and proving by the
husband that the complaint filed or report given or pursuing of the
case is aimed to harass and ill treat the husband that constitute
mental cruelty.  Equally mere allegations appearing wild or grave in
the pleadings of the parties, if not proved does not constitute
cruelty; in the absence of evidence showing the same are false or
made with intend to ill-treat or harass; by disproving said
allegations.

      35.       From the above propositions coming to the facts on
hand, it is the evidence of the respondent/wife that for not
conveying the property as demanded by the petitioner/husband i.e.,
covered by Ex.A7 agreement dated 11.06.1997, he started ill
treatment and sent her out of the house.   It is her further evidence
that even later her mother and another mediator made efforts for
her joining the petitioner, he did not allow.   Undisputedly, before
the O.P No.450 of 1998 filed by him for restitution of conjugal
rights, he did not issue any notice demanding his wife to join him.
The said O.P for restitution of conjugal rights was admittedly
decreed on 30.06.1999 vide Ex.A1.   It is important to note that the
report given by the wife under Section 498-A IPC against the
husband and his parents was dated 24.10.1998 in Crime No.192 of
1998 covered by CC No.180 of 1999.   It is during pendency of the
said crime, the restitution of conjugal rights case was decreed.  The
petitioner/husband undisputedly not filed any execution petition for
restitution of conjugal rights demanding his wife to join. He did not
even issued any notice asking her to join him. The so called
registered post letters on 30.07.1999 and 30.12.1999 allegedly sent
by him covered by Exs.A2 and A3, there is no proof.   The
respondent/ wife also disputed about sending letters and receiving
by her.  Even then, he did not file any proof, for the reasons best
known to him.  The so called mediator PW.2 evidence shows that he
was set up by him to depose to his tunes as if he is a mediator went
to the house of respondent to demand her to join the
petitioner/husband and as if she refused.   In there is any truth, that
important fact must find place in Ex.A2 which was within one month
from the date of Ex.A1 restitution of conjugal rights decree, leave
about Ex.A3 dated 30.12.1999.   The trial Court there from observed
that these two letters are created and manipulated and thereby
could not file any proof of service.   Now when he filed O.P for
restitution of conjugal rights, obtained the decree, did not even
choose to execute, but for filed O.P for divorce on the ground of
desertion and cruelty.   It was not even sought a ground of despite
restitution of conjugal rights decree, for no any reasonable or just
cause, she refused to join him under Section 13 ((1) (ia) clause (ii)
of the Act.

      36.       Ex.A4judgment in CC No.180 of 1999 also speaks the
factum supported by Ex.A7agreement, property conveyed by  
mother of respondent/ wife and the evidence of RWs.1 to 3 is that
the petitioner/husband demanded to part with the property and
convey in his name or to alienate.    Further, Ex.A4 certified copy of
judgment in CC No.180 of 1999 under Section 498-A IPC speaks that
the allegation is when the respondent/wife, her mother and another
said to have gone to his house to join the petitioner/husband by
respondent/wife, she was beaten, they were not allowed, she was
necked out and with the demand to part with the property.

      37.       What the lower Court observed rightly from reading of
Ex.A4 judgment was that, the observation in the acquittal judgment
was not because of the allegation was not proved, but such
averment does not constitute the offence under Section 498-A IPC.
The wife did not pursue the case further to say the filing of said
case constitutes cruelty to make it a ground for divorce even as a
subsequent event from the result of the acquittal judgment dated
08.05.2000,  after filing of the divorce O.P. No.396 of 2000.  Further
pursuing a legal remedy does not per se constitute cruelty, unless it
is shown out come of spite and ill will and the object behind is with
some oblique motive.   Coming to the other facts covered by Ex.A5
in CC No.270 of 2000 that was undisputedly ended in conviction on
31.03.2001 and the accused was released under Section 3(1) of the
Probation of Offenders Act by admonishing him and he did not even
choose to prefer appeal or revision impugning the same. It is
observed therein that while the respondent/ wife was going to Court
to give evidence in Section 498-A IPC case, the petitioner/ husband,
his father, another by name Simhachalam assaulted her and she
was beaten, for which she lodged complaint, that was covered by
C.C No.270 of 2000 on the file of the V Metropolitan Magistrate,
Visakhapatnam, as such that no way constitutes an act of cruelty on
the part of the wife against the husband but vice-versa.

      38.       No doubt, the wife filed maintenance case covered by
O.S No.82 of 2000 on the file of the Judge, Family Court,
Visakhapatnam with averments that while she was going to join her
husband, she was not allowed and she was beaten and necked her  
out, despite the decree for restitution of conjugal rights and she was
unable to maintain herself and hence to grant maintenance.  The
maintenance case no way constitute either cruelty or desertion on
the part of the wife from such a claim. Besides PW.1s evidence, one
P.Appa Rao, PW.2, deposed that in August, 1999 himself and
Varahalu went to the parents house of the respondent and
requested to send the respondent to the house of PW.1 but they
refused to send her.   Any credence can be given to said version of
PW.2 that in August, 1999, the respondent was demanded to join,
but she did not oblige; there is no whisper in this regard, if true to
find place in the alleged notice (A-3) dated 30.12.1999.  He is an
introduced and interested witness and moreover no such pleading
was there even in the petition for divorce in this regard.   Thus,
there is only self serving testimony of him and the introduced and
uncredible witness PW.2 with reference to Exs.A1 to A7 discussed
supra of which the Ex.A4, Ex.A5 and Ex.A7 substantiate the defence
of the respondent/ wife, besides respondent/wife, her mother, and
mediator i.e., K.Seetharatnam (RW.3)  also deposed in support of
the same.  It is there from the trial Court concluded that the
petitioner/husband cannot take advantage of his own fault to get rid
of the marriage tie with the respondent and for her no fault and
even though she is ready and willing to join him which he did not
allow.  He did not come to court with clean hands.  The said
conclusion of trial Court is as referred supra on factual aspects is
correct and supported by reasons to hold that there is no cruelty.

      39.       Now coming to the contention of otherwise, there is a
desertion on the part of the wife for his entitlement to the decree of
divorce, in this regard it is important to note, as observed in para
No.53 of the three judges Bench expression of the Supreme Court in
Naveen Kohli (1 supra) referring to the earlier expression in
Savitri Pandey (6 supra) at page 82 which referred the earlier
expressions of the Apex Court in Bipin Chander Jaisinghbhai
Shah vs. Prabhawati  that was followed and reiterated in
Lachman Utamchand Kirpalani vs. Meena , that:
Following the decision in Bipin Chander case this
Court again reiterated the legal position in Lachman
Utamchand Kripalani v. Meena by holding that in its
essence desertion means the intentional permanent
forsaking and abandonment of one spouse by the
other without that others consent, and without
reasonable cause.   For the offence of desertion so far
as the deserting spouse is concerned, two essential
conditions must be there (1) the factum of
separation, and (2) the intention to bring
cohabitation permanently to an end (animus
deserendi).  Similarly two elements are essential so
far as the deserted spouse is concerned: (1) the
absence of consent, and (2) absence of conduct
giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention
aforesaid.   For holding desertion as proved the
inference may be drawn from certain facts which
may not in another case be capable of leading to the
same inference; that is to say the facts have to be
viewed as to the purpose which is revealed by those
acts or by conduct and expression of intention, both
anterior and subsequent to the actual acts of
separation.

      40.       The later expression of the Apex Court in Malathi
Ravi, M.D (10 supra) reiterated the above principle by referring the
above expressions holding that there must be a continuous period of
two years desertion on the part of the other spouse to put an end to
marital tie with an intention to live away and without any mind to
join. Here that is totally lacking in the case as rightly concluded by
the trial Court and suffice to hold that there is no factual foundation
to establish desertion or construction desertion.

        41.     Having regard to the above as rightly concluded by the
trial Court, the husband cannot take advantage of his own faults, for
no fault of the wife in driving out her from the marital home and for
the sake of record having filed restitution of conjugal rights with no
mind and even wife expressed her willingness to join and even after
the restitution of conjugal rights petition allowed, he did not execute
much less served any notice to her to come and join and further
even not allowed her to join and even case registered for the
offence under Section 498-A IPC from his demands to part with the
property having driven out when she tried to join by proceeding with
her mother (RW.2) and PW.3 (that is proved from their evidence) he
beat her and demanded to part with her property in his name to
alienate and further when she was attending Court to give evidence
she was way laid and beaten for which another case registered
where he was convicted.  Thus, there is neither desertion nor cruelty
on the part of the wife, but for cruelty and desertion on the part of
the husband.

      42.       In view of the above, there is no illegality or irregularity
or impropriety in appreciation of the evidence and to the conclusions
and findings arrived by the lower Court, for this Court while sitting in
appeal to interfere.

      43.       It is needless to say that it is one of the contentions of
the appellant/husband that after December, 1997, the parties are
living separately and that is a ground for divorce.  As held in the
expressions supra, irretrievably broken down of marriage is not a
ground for divorce.  It is needless to say even the amendment
proposed after Naveen Kohli  (1 supra) and Samar Ghosh (7
supra) to make it a ground for divorce and that was even
recommended by the law commission, it could not fructify in the
Parliament.   Accordingly, the point No.1 is answered.

Point No.2:

   44.  In the result, the appeal is dismissed.  No costs.

      45.       Consequently, miscellaneous petitions pending if any in
this appeal shall stand closed.

___________________  
R.SUBHASH REDDY, J    
____________________  
B.SIVA SANKARA RAO,J    
Date:19.02.2015

Monday, November 9, 2015

whether in absence of an appeal or cross-objection from the claimants, is it permissible to grant additional benefits to the appellants as provided in Section 23(1-A) of the Amendment Act?

HON'BLE SRI JUSTICE RAMESH RANGANATHAN HON'BLE SRI JUSTICE S. RAVI KUMAR                

A SMP No.730 of 2015

29-07-2015

Girreddy Suryanarayana Reddy .Appellant.                              

The Land Acquisition Officer and Special Deputy Collector, Y.R.P., Unit-III,
Peddapuram, East Godavari District. .....Respondent.

Counsel for the Petitioner: Sri A.K. Kishore Reddy.

Counsel for Respondent: G.P for Appeals.

<Gist :

>Head Note:

? Cases referred:
1. (2010) 10 SCC 458
2. (2007) 13 SCC 421
3. (2006) 1 SCC 380
4. (1994) 4 SCC 368
5. (2003) 2 SCC 330
6. (2005) 11 SCC 197
7. (2003) 1 SCC 197
8. (2001) 7 SCC 211
9. (2006) 8 SCC 457
10. (1996) 4 SCC 533
11. (1996) 5 SCC 501
12. (2005) 7 SCC 748
13. (2004) 1 SCC 328
14. (2001) 4 SCC 181


HON'BLE SRI JUSTICE RAMESH RANGANATHAN          

HON'BLE SRI JUSTICE S. RAVI KUMAR      

ASMP No.730 of 2015  
in
A.S No.1884 of 2001

Date:29-07-2015

The Court made the following :


ORDER: (Per Honble Sri Justice S. Ravi Kumar)

         This petition is filed under Sections 152 & 153-A of CPC
seeking amendment of decree dated 08-12-2010 in A.S.No.1884/2001  
by awarding interest on solatium and additional market value and to
pass such other orders that are deem proper and necessary.

2.      Petitioner herein is appellant in A.S.No.1884/2001, which is
preferred challenging the Reference Court order in O.P.No.02/1993.
Land Acquisition Officer-cum-Special Deputy Collector, Yeleru
Reservoir Project, Unit-III, Peddapuram acquired an extent of
Acs.4-20 cents of agricultural land in Survey No.34/1 and Ac.1-70
cents of land in Survey No.36/1, situated at Bhavaram Village,
Jaggampeta Mandal, East Godavari District for the purpose of Yeleru
Reservoir Project.  The Land Acquisition Officer passed an Award on
25-10-1991 in Award No.1/1991 granting an amount of Rs.11,000/-
per acre and not satisfied with the award of the Land Acquisition
Officer, petitioner made a request to refer the matter to the Civil Court
and accordingly, it was referred to Senior Civil Judge, Peddapuram
under Section 18 of the Land Acquisition Act.  Senior Civil Judge,
Peddapuram, after due enquiry, enhanced market value of the land
from Rs.11,000/- per acre to Rs.40,000/- per acre and also awarded
Rs.51,330/- as solatium and a sum of Rs.1,51,416/- towards
additional market value by an order dated 31-08-2000 and held that
claimant is not entitled for any interest on the solatium and on the
additional market value.  Claimant having not satisfied with the
market value fixed by the reference Court, preferred appeal to this
Court for enhancement and this Court dismissed the appeal on
08-12-2010 by confirming the award of the reference Court.
According to claimant, as the land Acquisition Officer has not
deposited the award amount, after dismissal of the appeal, he filed a
writ and only as per directions in the writ, a sum of Rs.10,99,068/-
was deposited on 16-10-2014 to the credit of O.P.No.2/1993 and that
the claimant was supplied a copy of the details of the deposit and on
verification of the same, he noticed that interest on solatium and
additional market value was not deposited and he approached his
counsel and that he was informed that the reference Court has not
granted interest on solatium and additional market value, he was
advised that it was a mistake crept while adjudicating his appeal and
that he has to seek for amendment of decree dated 08-12-2010.
According to petitioner, this Court, while adjudicating appeal, has not
considered the interest aspect on solatium and additional market
value, it is a statutory benefit and he is entitled for the same as per
the provisions of Land Acquisition Act.  According to claimant, this
Court has not taken into consideration his statutory entitlement while
dismissing the appeal and that the decree has to be amended by
adding payment of interest on solatium and additional market value.

3.      Heard both sides.


4.      Advocate for petitioner submitted that 4 (1) notification was
issued on 16-10-1980 and possession of the land was taken on
01-04-1984 and the Award is passed on 25-10-1991.  He further
submitted that on reference, civil Court enhanced market value from
Rs.11,000/- to Rs.40,000/- per acre as per order dated 31-08-2000
and as per clause 6 of decree, claimant was not entitled for interest on
solatium and additional market value.  He submitted that both
Government and claimant preferred appeal challenging the order of
the reference Court and both the appeals are dismissed on
08-12-2010 and by that date, the Honble Supreme Court clarified
that claimant is entitled for interest on solatium and additional
market value and this aspect was not brought to the notice of this
Court at the time of hearing of the appeal, but still this being a
statutory benefit, petitioner is entitled for interest on the solatium and
additional market value and the decree has to be modified
accordingly.

5.      Learned Advocate for petitioner-claimant contended that a
decree can be amended under Section 152 CPC when there is a  
accidental slip or omission and the facts of this case would squarely
fall under the category of omission or accidental slip and that the
claimant is entitled for the relief claimed.  He submitted that even
without appeal, the claimant is entitled for the statutory benefits and
to support his arguments, he placed reliance on a decision of Honble
Supreme Court in PRAHLAD vs. STATE OF MAHARASHTRA  and        
has drawn our attention to the following Paras of the said decision:-
     The basic issue before the High Court was whether in absence
of an appeal or cross-objection from the claimants, is it permissible
to grant additional benefits to the appellants as provided in Section
23(1-A) of the Amendment Act?

       Keeping in mind the aforesaid declaration of law, this Court
holds that in the instant case the acquisition proceeding commenced
with notification under Section 4 which is dated
5-3-1983 and the award was passed on 1-3-1984. Therefore, the
landowners who were affected by the instant acquisition
proceedings were entitled to the benefit of the amending provision
under Section 23(1-A) in view of the ratio in Paripoornan.

     The provision of Order 41 Rule 33 CPC is clearly an enabling
provision, whereby the appellate court is empowered to pass any
decree or make any order which ought to have been passed or
made, and to pass or make such further or other decree or order as
the case may require. Therefore, the power is very wide and in this
enabling provision, the crucial words are that the appellate court is
empowered to pass any order which ought to have been made as  
the case may require. The expression order ought to have been
made would obviously mean an order which justice of the case
requires to be made. This is made clear from the expression used in
the said Rule by saying the court may pass such further or other
order as the case may require. This expression case would mean
the justice of the case. Of course, this power cannot be exercised
ignoring a legal interdict or a prohibition clamped by law.

6.      Learned Advocate further submitted that no party shall be
prejudiced by an act of Court, is the principle as held by Supreme
Court in NIYAMAT ALI MOLLA V. SONARGON HOUSING        
COOPERATIVE SOCIETY LTD.,  and U.P.SRTC vs. IMTIAZ      
HUSSAIN .

7.      Learned Advocate further submitted that omission or accidental
slip can be corrected at any time either by Court on its own or on the
application of any of the parties and to support his argument, he
relied on a decision of Honble Supreme Court in
B. SHIVANANDA vs. ANDHRA BANK LTD., . Learned counsel has      
drawn our attention to following Paras from this decision:-
    The appellant contended that no interest can be granted since
the judgment did not specify the liability relating to payment of
future interest. The trial court allowed the application of the
appellant and dismissed the application of the respondent-Bank.
On revision filed by the Bank, the High Court, by its order dated
23-9-1989 allowed the revision of the Bank and dismissed the
application of the appellant. Thus, this appeal by special leave.

    Section 152 CPC, clearly gives power to the court to amend
clerical or arithmetical mistakes in the judgment and decree or order
or any errors arising therein from any accidental slip or omission.
The same may, at any time, be corrected by the court either of its
own motion or on the application of any of the parties to the suit.
Therefore, it is not necessary that the aggrieved party should
necessarily file an appeal or review for effecting correction of the
judgment or decree or order. But in this case, as seen, that the claim
for future interest at 16 1/2% was made in the suit itself which
admittedly, is the contracted rate of interest. Therefore, the Bank is
entitled to claim interest in terms of the contract at 16 1/2% from the
date of lending till the date of filing of the suit. However, the court
has discretion under Section 34 CPC to award interest. Admittedly,
the loan was taken for construction of theatre. In other words, the
loan was for a commercial transaction. In the facts and
circumstances of this case, we consider it just and proper that the
appellant should pay simple interest at the rate of 16 1/2% per
annum on the principal amount claimed in this suit from the date of
the decree till the date of realisation.

8.      Learned counsel further submitted that to put an end to
litigation, the Court can even permit to correct defect in the Court
record and to support the same, he relied on a decision of Honble
Supreme Court in PRATIBHA SINGH vs. SHANTI DEVI PRASAD        
and has drawn our attention to Para No.17, which reads as follows:-
        When the suit as to immovable property has been decreed
and the property is not definitely identified, the defect in the court
record caused by overlooking of provisions contained in Order 7
Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all
a successful plaintiff should not be deprived of the fruits of decree.
Resort can be had to Section 152 or Section 47 CPC depending on
the facts and circumstances of each case  which of the two
provisions would be more appropriate, just and convenient to
invoke. Being an inadvertent error, not affecting the merits of the
case, it may be corrected under Section 152 CPC by the court which
passed the decree by supplying the omission. Alternatively, the
exact description of decretal property may be ascertained by the
executing court as a question relating to execution, discharge or
satisfaction of decree within the meaning of Section 47 CPC.
A decree of a competent court should not, as far as practicable, be
allowed to be defeated on account of an accidental slip or omission.
In the facts and circumstances of the present case, we think it
would be more appropriate to invoke Section 47 CPC.

9.      Learned Advocate further contended that failure to grant
statutory benefit of interest on solatium and additional market value
can be corrected under Section 152 C.P.C.  To support his argument,
he relied on a decision of Honble Supreme Court in STATE OF
RAJASTHAN vs. NAV BHARAT CONSTRUCITON CO.,          

10.     Learned counsel further submitted that an inadvertent error
emanating from non-adherence to rules of procedure prolongs the life
of litigation and gives rise to avoidable complexities and that the same
can be corrected by Section 152 CPC and to support this, he relied on
a decision of Honble Supreme Court in LAKSHMI RAM BHUYAN vs.    
HARI PRASAD BHUYAN .    

11.     In answer to the submissions of the Advocate for petitioner,
learned Government Pleader would submit that the application under
Section 152 CPC is not maintainable and there is no clerical error or
arithmetic mistake or accidental slip or omission and the remedy of
the claimant is only to seek a review or prefer appeal, but not under
Section 152 CPC.  He further submitted that all the decisions referred
to by the Advocate for petitioner have no application for the simple
reason that the reference Court specifically refused interest on
solatium and additional market value and the same is confirmed by
this Court in the appeal and the relief claimed by the claimant in this
application would amount to grant a relief which was specifically
denied.  He submitted that the application is misconceived and liable
to be dismissed.

12.     Now the point that would arise for our consideration in this
application is whether there is any accidental slip or omission to be
corrected by exercising the powers under Section 152 CPC?

13.     Point:-Facts are not in dispute.  The petitioner herein preferred
A.S.No.1884/2001 challenging the reference Court order and that
appeal was dismissed on merits confirming the order of the reference
Court. It is also not in dispute that reference Court specifically
refused interest both on solatium and additional market value.  Entire
argument of the learned counsel for the petitioner is that the
petitioner is entitled for interest on solatium and additional market
value as per the decisions of Honble Supreme Court in SUNDER vs.
UNION OF INDIA  and GURPREET SINGH vs. UNION OF INDIA .      
According to him, though these two decisions were not brought to the
notice of this Court at the time of disposal of A.S.No.1884/2001 as it
is a statutory benefit, the Court is expected to grant the same and as
it was not granted, it would amount to accidental slip or omission on
the part of the Court and the same can be corrected under the
provisions of Section 152 CPC.  It may be relevant to read Section 152
CPC which reads as follows:-

        Amendment of judgments, decrees or orders
       Clerical or arithmetical mistakes in judgments, decrees
or orders or errors arising therein from any accidental slip or
omission may at any time be corrected by the court either of
its own motion or on the application of any of the parties.

14.     From a perusal of the above provision, it provides for correction
of clerical or arithmetical mistakes in judgments, decrees or orders or
errors arising therein from any accidental slip or omission.  Normally,
after passing the judgment, decree or order, the Court becomes
functus officio and not entitled to modify the terms of the judgment,
decree or order, but Section 152 is an exception to the above general
rule for correcting accidental slip or omissions or clerical mistakes or
arithmetical mistakes.  Section 152 CPC cannot be pressed into
service to correct an omission which was intentional though it may
appear erroneous.  As seen from the record, the applicant herein
challenged the reference Court order with regard to quantum and he
no where challenged, finding refusing interest on solatium and
additional market value.  The purport of all the decisions relied on by
the applicant is any inadvertent error not effecting merits of the case
can be corrected under Section 152 CPC by the Court, which passed
the decree or order.  Any omission sought to be corrected which goes
into the merits of the case is beyond the scope of Section 152 CPC.
Keeping this in mind we now examine the case law with reference to
power under Section 152 CPC.

15.     In PRAHLAD vs. STATE OF MAHARASHTRA1, the issue before      
Supreme Court was not in respect of application of Section 152 CPC.
In that case Supreme Court dealt with the power of Court under
Order 41 Rule 33 C.P.C; In NIYAMAT ALI MOLLA V. SONARGON      
HOUSING COOPERATIVE SOCIETY LTD.,2 and U.P.SRTC vs.        
IMTIAZ HUSSAIN3, Supreme Court held under Section 152 CPC it is  
not permissible to go in to disputed questions and omissions sought
to be corrected which goes in to the merits of the case, is beyond the
scope of Section 152 C.P.C; In B. SHIVANANDA vs. ANDHRA BANK      
LTD.,4 future interest was not granted.  Both parties filed applications
for amendment.  Bankers application for grant of future interest was
allowed. While confirming grant of interest, Supreme Court observed
that it should be confined to that case only in view of peculiar facts of
that case; In PRATIBHA SINGH vs. SHANTI DEVI PRASAD5,      
Supreme Court held that inadvertent error not effecting merits of the
case may be corrected under Section 152 C.P.C. by the Court which
passed decree; In STATE OF RAJASTHAN vs. NAV BHARAT        
CONSTRUCITON CO.,6 dismissal of petition under Section 152 CPC  
was confirmed.  In that case petition was filed for enhancement of rate
of interest by the contractor invoking Sections 152 C.P.C.
That petition was dismissed and Supreme Court upheld the same;
In LAKSHMI RAM BHUYAN vs. HARI PRASAD BHUYAN7, Supreme            
Court held only intention expressed in the judgment must formulate
into relief.  In that case as that aspect was missed party, was
permitted to invoke Section 152 C.P.C.

16.     Honble Supreme Court in BAI SHAKRIBEN (DEAD) BY NATWAR        
MELSINGH vs. SPECIAL LAND ACQUISITION OFFICER  held as        
follows:-
    The omission to award additional amounts under Section
23 (1-A), enhanced interest under Section 28 and solatium under
Section 23(2) are not clerical or arithmetical mistake crept in the
award passed by the Reference Court but amounts to non-award.
Under those circumstances, the Reference Court was clearly in error
in entertaining the application for amendment of the decree and is
devoid of power and jurisdiction to award the amounts under
Sections 23(2), 23(1-A) and 28 of the Act.

17.     In UNION OF INDIA vs. SWARAN SINGH , Honble Supreme    
Court held as under:-
    The question then is whether the High Court has power to
entertain independent applications under Sections 151 and 152 and
enhance solatium and interest as amended under Act 68 of 1984.
This controversy is no longer res integra. In State of Punjab v. Jagir
Singh ((1995 Supp (4) SCC 626) and also in a catena of decisions
following thereafter in Union of India v. Pratap Kaur ((1995) 3 SCC
263); State of Maharashtra v. Maharau Srawan Hatkar ((1995) 3
SCC 316); State of Punjab v. Babu Singh ((1995 Supp (2) SCC 406);
Union of India v. Raghubir Singh ((1989) 2 SCC 754 and
K.S. Paripoornan v. State of Kerala ((1994) 5 SCC 593), this Court
has held that the Reference Court or the High Court has no power or
jurisdiction to entertain any applications under Sections 151 and
152 to correct any decree which has become final or to
independently pass an award enhancing the solatium and interest
as amended by Act 68 of 1984.

18.     In BIJAY KUMAR SARAOGI vs. STATE OF JHARKHAND ,        
Honble Supreme Court held that Section 152 CPC cannot be invoked
for claiming a substantial relief which was not granted under the
decree, or as a pretext to get the order which has attained finality,
reviewed.

19.     In STATE OF PUNJAB vs. DARSHAN SINGH , Honble      
Supreme Court while dealing with the powers of the Court under
Sections 151 & 152 of Code of Civil Procedure held no court can,
under the cover of the aforesaid sections, modify, alter or add to the
terms of its original judgment, decree or order.


20.     In BAI SHAKRIBEN (DEAD) BY NATWAR MELSINGH vs.        
SPECIAL LAND ACQUISITION OFFICER10, Honble Supreme Court        
clearly indicated that omission to award additional amount under
Section 23 (1-A) enhanced interest under Section 28 and solatium
under Section 23 (2) are not clerical or arithmetical mistakes and the
Court has no power or jurisdiction to award those amounts under
Section 152 of CPC.
       
21.      In STATE OF PUNJAB vs. DARSHAN SINGH13, Honble      
Supreme Court noticed that the courts below have been liberally
construing and applying the provisions under Sections 151  & 152
CPC even after passing effective orders in the lis pending before them
and cautioned that the Court cannot modify, alter or add any terms to
its original judgment, decree or order by exercising powers under
Sections 151 & 152 CPC.
       
       
22.     In JAYLAKSHMI COELHO vs. OSWALD JOSEPH COELHO ,          
Honble Supreme Court held that 152 CPC should not be for
reconsideration of merits of the matter and it observed as follows:-  
    As a matter of fact such inherent powers would generally be
available to all courts and authorities irrespective of the fact
whether the provisions contained under Section 152 CPC may or
may not strictly apply to any particular proceeding. In a matter
where it is clear that something which the court intended to do but
the same was accidentally slipped or any mistake creeps in due to
clerical or arithmetical mistake it would only advance the ends of
justice to enable the court to rectify such mistake. But before
exercise of such power the court must be legally satisfied and arrive
at a valid finding that the order or the decree contains or omits
something which was intended to be otherwise, that is to say, while
passing the decree the court must have in its mind that the order or
the decree should be passed in a particular manner but that
intention is not translated into the decree or order due to clerical,
arithmetical error or accidental slip. The facts and circumstances
may provide clue to the fact as to what was intended by the court
but unintentionally the same does not find mention in the order or
the judgment or something which was not intended to be there
stands added to it. The power of rectification of clerical, arithmetical
errors or accidental slip does not empower the court to have a
second thought over the matter and to find that a better order or
decree could or should be passed. There should not be
reconsideration of merits of the matter to come to a conclusion that it
would have been better and in the fitness of things to have passed
an order as sought to be passed on rectification. On a second
thought the court may find that it may have committed a mistake in
passing an order in certain terms but every such mistake does not
permit its rectification in exercise of the courts inherent powers as
contained under Section 152 CPC. It is to be confined to something
initially intended but left out or added against such intention.

23.     In this case, reference Court specifically refused interest on
solatium and additional market value and the same is confirmed by
this Court in the appeal, therefore, it cannot be treated as an
accidental slip or omission.  With regard to benefit extended by the
Honble Supreme Court in GURPREET SINGH vs. UNION OF INDIA9      
and SUNDER vs. UNION OF INDIA8, as rightly pointed out by learned
Government Pleader the remedy of applicant is not under Section 152
CPC and his remedy is otherwise.

24.     The cumulative effect of all the above referred decisions is that
Section 152 CPC has to be applied only when the intention of the
Court is not translated into a decree or order, due to accidental slip or
omission, but not to reconsider the matter and grant a relief which
the Court has not granted originally.  The relief claimed by applicant
in this petition would amount to adding certain clauses to the
judgment in A.S.No.1884/2001.  Therefore, considering the facts of
the case with reference to the legal position indicated above, we are of
the considered view that there is no accidental slip or omission in the
judgment dated 18-12-2010 to be corrected under Section 152 CPC.
Accordingly, point is answered against the petitioner.

25.     For the reasons stated above, we are of the view that application
is devoid of merits and liable to be dismissed.  In the result, petition is
dismissed.  No costs.
____________________________________    
JUSTICE RAMESH RANGANATHAN        
___________________________    
JUSTICE S. RAVI KUMAR    
Date:29-07-2015

Sunday, November 1, 2015

Proof of Will – mere expressed ignorance of the manner in which the Will was executed by each of them pleading that the other person has personal knowledge, that is hardly of any significance. – does not make the will invalid as the signature on the Will was admitted = A perusal of the cross-examination of the plaintiffs witnesses, and in particular that of PW-3 and PW-4, who are the attestors to Ex.A-5-Will and PW-5, the scribe of the Will, shows that nothing is elicited to discredit their testimony regarding the execution of the Will by Vasantha Devi. Except the suggestion consistently put to both the attestors and the scribe that the Will was fabricated using the signatures of Vasantha Devi, nothing of significance which would cast a shadow on the genuineness of the Will has been extracted from these witnesses. The evidence of these witnesses, in my opinion, completely satisfies the requirements of Section 63 of the 1925 Act. Though respondent Nos.1 and 2 have expressed ignorance of the manner in which the Will was executed by each of them pleading that the other person has personal knowledge, that is hardly of any significance. Last Testament - though unregistered, last will prevails the earlier registered will deed = Indeed, a perusal of Ex.A-5-Will would show that the testatrix referred to Will dated 11-3-1990 and rescinded the same. From the evidence of appellant No.1, who was examined as DW-1, it is clear that he had admitted the signature of the testatrix while denying the execution of Ex.A-5 Will. In the face of the evidence of PW-3 to PW-5, which remained unshaken, it needs to be held that respondent Nos.1 and 2 are able to prove Ex.A-5-Will as true and valid. Even if PW-1 and PW-2 did not have personal knowledge of the manner in which Vasantha Devi executed the Will, the same would not in any manner affect its genuineness No Equities = When the sale deeds are hit by Doctrine of Lis Pendency, cannot claim any Equities=, but he has also sold Ac.5-00 of land which was bequeathed to respondent Nos.1 and 2 under Ex.A-5-Will to defendant Nos.8 and 9. It is also not in dispute that these properties were sold after the suit was instituted. In these facts and circumstances, defendant Nos.8 and 9 cannot claim any equities against respondent Nos.1 and 2. At the most, they can proceed against appellant No.1 for recovery of the money paid to him and also for damages, if any. - 2015 A.P. MSKLAWREPORTS

Proof of Will – mere expressed ignorance of the manner in which the Will was executed by each of them pleading that the other person has personal knowledge, that is hardly of any significance. – does not make the will invalid as the signature on the Will was admitted = A perusal of the cross-examination of the plaintiffs witnesses, and in particular that of PW-3 and PW-4, who are the attestors to Ex.A-5-Will and PW-5, the scribe of the Will, shows that nothing is elicited to discredit their testimony regarding the execution of the Will by Vasantha Devi.  Except the suggestion consistently put to both the attestors and the scribe that the Will was fabricated using the    signatures of Vasantha Devi, nothing of significance which would cast a shadow on the genuineness of the Will has been extracted from these witnesses.  The evidence of these witnesses, in my opinion, completely satisfies the requirements of Section 63 of the 1925 Act. Though respondent Nos.1 and 2 have expressed ignorance of the manner in which the Will was executed by each of them pleading that the other person has personal knowledge, that is hardly of any significance.                 Last Testament - though unregistered, last will prevails the earlier registered will deed = Indeed, a perusal of Ex.A-5-Will would show that the testatrix referred to Will dated 11-3-1990 and rescinded the same.  From the evidence of appellant No.1, who was examined as  DW-1, it is clear that he had admitted the signature of the testatrix while denying the execution of Ex.A-5 Will.  In the face of the evidence of PW-3 to PW-5, which remained unshaken, it needs to be held that respondent Nos.1 and 2 are able to prove Ex.A-5-Will as true and valid.  Even if PW-1 and PW-2 did not have personal knowledge of the manner in which Vasantha Devi executed the Will, the same would not in any manner affect its genuineness   No Equities = When the sale deeds are hit by Doctrine of Lis Pendency, cannot claim any Equities=, but he has also sold Ac.5-00 of land which was bequeathed to respondent Nos.1 and 2 under Ex.A-5-Will to defendant Nos.8 and 9.  It is also not in dispute that these properties were sold after the suit was instituted.  In these facts and circumstances, defendant Nos.8 and 9 cannot claim any equities against respondent Nos.1 and 2.  At the most, they can proceed against appellant No.1 for recovery of the money paid to him and also for damages, if any. - 2015 A.P. MSKLAWREPORTS

without seeking relief of recovery of possession, plaintiffs are not entitled to claim relief of declaration as discussed earlier in the earlier paras, defendants miserably failed to establish their possession over the property and on the other hand this Court while accepting possession of defendant No.1 directed defendants not to dispossess plaintiff No.1 from possession of the property under Ex.A.1 after issuing notice, plaintiffs filed the present suit and undisputedly defendant Nos.5 to 11 and plaintiff Nos.1 and 2 were compromised as per orders in I.A.No.1930 of 1992. Defendants also failed to establish that they are continuing in possession of the property, consequently the contention of the defendants that plaintiff Nos.3 to 6 are not entitled to claim relief of declaration of title, without seeking relief of recovery of possession is without any substance and this contention would stand to any legal scrutiny by this Court.unless an enquiry as contemplated under Section 7 of the Act and by following necessary procedure under Sections 9, 10 and 11 of the Act, the property cannot be declared as escheat under Section 12 of the Act. But, in the present case except producing Exs.B.1 and B.2 as part of compliance of the procedure under Section 10(1) of the Act, nothing has been brought on record to establish the strict adherence of the procedure contemplated under the A.P. Act of 1974. In the absence of compliance of the procedure under the A.P. Act of 1974, it is difficult to hold that the possession of the property was taken by defendant Nos.1 to 4 and later on, the same was handed over to defendant Nos.13 to 24 by issuing eksal pattas. Even assuming for a moment that pattas were granted under Exs.B.3 and B.4 to defendant No.13 to 24, those pattas are only for a period of one year i.e., 1991- 1992 and not renewed from time to time as required under law. Therefore, the eksal patta holders i.e., defendant Nos.13 to 24, if any, are liable to vacate and deliver possession of the property after expiry of one year period. Thus, defendant Nos.1 to 4 are totally violated the procedure as contemplated under Sections 9, 10, 11 and 12 of the Act and allegedly took possession of the property.; Admittedly, the plaintiffs and defendant Nos.5 to 11 are covered by Hanani Law of Inheritance. Plaintiff No.1 is not a sharer under absence of defendant Nos.5 to 11, plaintiff No.1 is entitled to succeed Section 63 of the Hanafi Law of Inheritance. Section 67 of Hanafi Law of Inheritance defined distant kindred as follows: Distant Kindred: (1) If there be no shares or Residuaries, the inheritance is divided amongst Distant Kindred. (2) If the only sharer be a husband or wife, and there be no relation belonging to the class of Residuaries, the husband or wife will take his or her full share, and the remainder of the estate will be divided among Distant Kindred. 32. Again the Distant Kindred are divided into four classes under Section 68 of the Hanafi Law of Inheritance, namely: (1) descendants of the deceased other than sharers and Residuaries; (2) ascendants of the deceased other than sharers and Residuaries; (3) descendants of parents other than sharers and Residuaries; (4) descendants of ascendants how highsoever other than Residuaries. The descendants of the deceased succeed in priority to the ascendants, the ascendants of the deceased in priority to the descendants of parents, and the descendants of parents in preference to the descendants of ascendants. Clause (2) of Section 68 of the Hanafi Law of Inheritance is the list of Distant kindred comprised in each of the four clases; 1.Whether plaintiff No.1 is the distant kindred of late Abdulla Bin Musallam? 2. Whether plaintiff No.1 be declared as heir being the distant kindred of late Abdulla Bin Musallam? 3. Whether late Abdulla Bin Musallam died leaving no legal heirs to succeed his estate? 4. Whether plaintiff Nos.3 to 5, being the purchasers from defendant Nos.5 to 11, are entitled to claim relief that they are owners of the schedule property? 5. Whether the claim of plaintiff Nos.3 to 6 is barred by

HONOURABLE SRI JUSTICE M. SATYANARAYANA MURTHY            

APPEAL SUIT NOs.1490 of 1996 andm batch  

19-08-2015

Boddapalli Anjaiah S/o.Yellaiah and eleven others. Appellants

Shaik Sayeed S/o.Shaik Mohammad and twenty one others. Respondents    

Counsel for Petitioner: Sri B. Vijaysen Reddy

Counsel for Respondents: Sri Y. Rama Rao for R.1
                          Sri V.Ravi Kiran Rao for R.3, R.6 & R.6
<GIST:

>HEAD NOTE:  

? CITATIONS:
1.      1987 (2) ALT 46 (NRC)
2.      AIR 2004 AP 167


HONBLE SRI JUSTICE M. SATYANARAYANA MURTHY          

A.S.Nos.1490 of 1996 and 1582 of 1997

COMMON JUDGMENT:    

     Defendant Nos.13 to 24 in O.S.No.162 of 1988 on the file of
the Subordinate Judge, Karimnagar filed A.S.No.1490 of 1996 and
defendant Nos.1 to 4 in O.S.No.162 of 1988 filed A.S.No.1582 of
1997, challenging the degree and judgment dated 13.02.1996 where
under plaintiff No.1 is declared as distant kindred of late Abdulla Bin
Musallam, who was the pattadar of the suit land and plaintiff Nos.3 to
7 are declared as owners and possessors of the suit schedule land
being purchasers from defendant No. 5, 6 and 8 to 11.
2.      For convenience of reference, the ranks given to the parties in
O.S.No.162 of 1988 before Subordinate Judge, Karimnagar, will be
adopted throughout the judgment.
3.      Plaintiff Nos.1 and 2 filed the suit for declaration that plaintiff
No.1 is the heir of late Abdulla Bin Musallam, who was pattadar of
suit schedule property, being the nearest distant kindred under the
Muslim Law (Sunni) and Plaintiff Nos.3 to 7 as owner and possessors
of the suit land and for grant of perpetual injunction restraining
defendant Nos.1 to 4 from interfering with the possession and
enjoyment of the suit schedule property by the plaintiffs alleging that
late Abdulla S/o Musallam was the pattadar, owner and possessor of
the agricultural land, which is more fully described in the schedule
annexed to the plaint, situated at Reekurthi Village of Karimnagar
Mandal and District, during his last days the said Abdulla Bin
Musallam became imbecile and was not in a position to carry on
agricultural operations nor he was not in a position even to attend his
day-to-day affairs.  He was admitted in mental hospital at Hyderabad,
during his treatment in mental hospital, plaintiff No.2 was looking
after and managing the estate of late Abdulla Bin Musallam.
4.      Abdulla Bin Musallam died unmarried leaving no lenial
descendant or residuaries to inherit his estate under Muslim Law.
However, plaintiff No.2 continued in management of the entire estate
of late Abdulla Bin Musallam and he has been paying land revenue on
behalf of plaintiff No.1 as his distant kindred.  Defendant Nos.5 to 11
claimed to be the nearest heirs of late Abdulla Bin Musallam, they are
widow and children of Ali, have executed registered sale deeds in
favour of plaintiff Nos.3 to 7, who in turn become the owners and
possessors of the suit land.  Thus, plaintiff No.1 is the distant kindred
and nearest relative of late Abdulla Bin Musallam and plaintiff Nos.3
to 7 being the purchasers of the suit schedule property from defendant
Nos.5 to 11 became owners of the suit schedule land and they are in
possession and enjoyment of the schedule property from the date of
their purchase.
5.      Late Abdulla Bin Musallam had only one brother by name Ali,
who pre-deceased to late Abdulla Bin Musallam, leaving behind his
wife and children, therefore, they are legal heirs and excluded from
succession.
a.      Plaintiff No.1 is the great grand son of Mohasina Bee
W/o.Shaik Abdul Rahman, who was paternal aunt of late
Abdulla Bin Musallam.  Consequently, plaintiff No.1, who
is the nearest living distant kindred to the exclusion of
remoter and as such he is entitled to claim rights in the estate
of late Abdulla Bin Musallam.
b.      While the matter stood thus, plaintiffs came to know about
issue of proceedings initiated by defendant No.1 under the
Andhra Pradesh Escheats and Bona Vacantia Act, 1974 (for
short, the A.P. Act of 1974) or under Section 60 of
A.P.(T.A.) Land Revenue Act.
c.      In pursuance of the alleged proceedings, defendant No.3
issued memo bearing No.B1/2910 dated 02.07.1988 in
pursuance of defendant No.1s proceedings No.B6/3074/87
dated 29.05.1987 directed defendant No.4 to take possession
of the entire agricultural lands ie., suit schedule property of
late Abdulla Bin Musallam.
6.      The plaintiffs on coming to know about the alleged fact of
taking possession of the property approached this Court by filing
W.P.No.10179 of 1988.  While disposing of the said writ petition by
order dated 08.07.1988, this Court was pleased to direct the plaintiffs
to take appropriate civil proceedings to establish their claims as legal
heirs and directed defendant No.3 not to evict the plaintiffs from the
land in question for a period of three months from the date of order.
7.      In pursuance of the direction in the writ petition, the plaintiffs
got issued a legal notice dated 18.07.1988 under Section 80 C.P.C. to
defendant Nos.1 to 4, but no purpose was served.  Inasmuch as the
plaintiffs were not parties to the proceedings issued by defendant
Nos.1 to 3 referred supra, no relief to set aside the proceedings was
sought for.  Hence, claimed the aforesaid reliefs by filing the suit.
8.      Defendant Nos.1 to 3 filed written statement and resisted the
claim alleging that late Abdulla Bin Musallam died unmarried and he
was a lunatic and did not leave any heirs to succeed his estate.
Therefore, the schedule property became escheat and vested on the
Government.  Plaintiff No.2 has no authority or power of authority for
and on behalf of late Abdulla Bin Musallam to claim any right.
Plaintiff No.2 was not a natural or legal guardian appointed by any
Court or Authority or management of the estate of late Abdulla Bin
Musallam.  Moreover, the question of authorizing plaintiff No.2 does
not arise as late Abdulla Bin Musallam was an imbecile.
9.      Plaintiff No.1 is not the heir of late Abdulla Bin Musallam and
plaintiff No.2 is not managing on behalf of any one of the legal heirs.
Therefore, the defendants denied the claim of plaintiff No.1 being the
alleged great grand son of late Mohasine-bee and that she was
paternal aunt of late Abdulla Bin Musallam and plaintiff No.1 is living
distant kindred, excluded all other remote heirs.
10.     The defendants denied the relationship between late Abdulla
Bin Musallam and his brother by name Ali, as late Abdulla Bin
Musallam died leaving no heirs, his entire property became escheat
vested on the Government.  Therefore, defendant No.1 issued
proceedings bearing No.136/3074/87 dated 29.05.1988 under Section
5 of the A.P. Act of 1974 and the possession of the property was taken
by the Government and the Government is in custody.  Therefore, the
plaintiffs have no right whatsoever in the schedule property of late
Abdulla Bin Musallam.
11.     The plaintiffs have no locus standi to file the suit as they are not
legal heirs and possessors of the property and that the property was
undervalued.
12.     The plaintiffs are neither in possession of the properties on the
date of filing of the suit nor having any title to the suit property.
Therefore, the suit for simple declaration without any consequential
relief is not maintainable and on this ground alone the suit is liable to
be dismissed and prayed to dismiss the suit.
13.     Defendant No.4 did not file any written statement.
14.     Defendant Nos.5 and 6 filed separate written statement
claiming that they are the legal heirs of late Abdulla Bin Musallam,
being the nearest relatives.  Plaintiff No.1 claimed to be a distant
kindred of late Abdulla Bin Musallam as per Muslim Law and in fact,
he is not entitled to claim any right in the property to the exclusion of
defendant Nos.5 and 6.
15.     Syed Bin Mohammed was blessed with two children, by name,  
Abdulla Bin Sayeed and Awad Bin Sayeed.  Abdulla Bin Sayeed was  
blessed with two sons by name, Ali Bin Mohammad and Abdulla Bin
Musallam.  Defendant Nos.5 and 6 are the legal heirs of Ali Been
Musallam, who is brother of late Abdulla Bin Musallam (the owner of
the suit schedule property).
16.     Defendant Nos.5 and 6 pleaded ignorance about the
proceedings initiated by defendant Nos.1 to 3 under the A.P. Act of
1974 or under Section 60 of the A.P. (Telangana Area) Land Revenue
Act and claimed right in the property as per Muslim Personal Law.
Therefore, the suit is liable to be dismissed with costs.
17.     Defendant No.13 filed independent written statement almost
reiterating the contentions raised by defendant Nos.1 to 3.  In addition
to the above contentions, it is specifically contended that the suit is
filed by plaintiff Nos.1 and 2 for declaration that plaintiff No.1 is the
legal heir of late Abdulla Bin Musallam and later colluded with
defendant Nos.5 to 11 and set up a false claim to be the heirs of late
Abdulla Bin Musallam during pendency of the suit and executed
registered sale deed in favour of plaintiff Nos.3 to 7 individually and
also Abdulla, who is the son of defendant No.2 Shaik Saheeda i.e.,
plaintiff No.3 is no other than the wife of plaintiff No.1.  Plaintiff
No.4 is closely related to plaintiff No.1.  Plaintiff No.5 is the brothers
wife of plaintiff No.1 and plaintiff No.6 is the son of plaintiff No.2.
Plaintiff No.7 is the brother of plaintiff No.1.  Plaintiff Nos.1 and 2
are the cousins as well as brothers-in-law.  Plaintiff Nos.1 to 7 are
interrelated and plaintiff Nos.3 to 7 are kith and kin of plaintiff Nos.1
and 2.  The sale deeds were executed by defendant Nos.5 to 11 are
collusive and on the strength of the said sale deeds, the plaintiffs are
not entitled to claim any right in the property.
18.     It is further contended that defendant Nos.1 to 4 after taking
possession of the schedule property on 05.07.1988 under the
proceedings initiated under the A.P. Act of 1974, granted eksal patta
to defendant Nos.13 to 24 to the extent of about Ac.3.00 each under
File No.B1/2788/91 dated 01.09.1991.  Since the date of eksal patta,
defendant Nos.13 to 24 have been in possession and enjoyment of the
land and plaintiff Nos.1 and 2 did not produce any documents to
prove their claim.  Thereby, they are not entitled to claim any right in
the schedule property.  Defendant No.13 prayed to dismiss the suit.
19.     Basing on the above pleadings, the trial Court framed the
following issues.
i.      Whether the 1st plaintiff is a distant kindred of late
Abdulla Bin Musallam?
ii.     Whether defendants 5 and 6 are the lenial
defendants of late Abdulla Bin Musallam?
iii.    Whether defendants 5 and 6 are excluded from
inheritance to inherit the properties of late Abdulla
Bin Musallam?
iv.     Whether plaintiff No.2 is managing the landed
properties of late Abdulla Bin Musallam during his
life time and on his death on behalf of the 1st
plaintiff?
v.      Whether the suit as framed is not tenable?
vi.     Whether the suit for bare declaration without the
consequential relief of possession is not
maintainable?
vii.    Whether the suit is under valued and court fee paid
is insufficient?
viii.   Whether the plaintiffs have no locus standi to file
the suit?
ix.     Whether the plaintiff No.1 is entitled for the
declaration prayed for?
x.      To what relief?

20.     The trial Court on 09.07.1993 framed the following additional
issues:
i.      Whether late Abdulla is the owner of suit land,
whether the 1st plaintiff is the distant kindred?
ii.     Whether the defendants 5 to 11 are the nearest
heirs of Abdulla Bin Musallam who are the widow
and children of Ali, the brother of late Abdulla?
iii.    Whether the Proceedings No.B6/3074/87 were
properly initiated under A.P. Escheats and Bona
Vacantia Act, 1974?
iv.     To what relief?

21.     The trial Court on 01.03.1994 framed the following an
additional issue:
Whether the suit is maintainable in view of the registered
sale deed executed by the plaintiffs 1 and 2 in favour of
the other plaintiffs?

22.     During course of the trial, on behalf of plaintiffs, PWs.1 to 6
were examined, marked Exs.A.1 to A.17.  On behalf of defendants,
DWs.1 to 9 were examined, Exs.B.1 to B.5 are marked.
23.     Upon hearing arguments of both the counsel and considering
the oral and documentary evidence, the trial Court held that plaintiff
No.1 is the distant kindred of late Abdulla Bin Musallam, who was the
pattadar and declared that plaintiff Nos.3 to 7 are the owners and
possessors of the suit land having purchased the property from
defendant Nos.5, 6 and 8 to 11.
24.     Aggrieved by the decree and judgment, defendant Nos.13 to 24
filed A.S.No.1490 of 1996 and raised several contentions challenging
the decree and judgment passed by the trial Court.
a.      The main contentions urged in the grounds of appeal are that
defendant Nos.5 to 11 are not the nearest legal heirs of late Abdulla
Bin Musallam and in view of the specific allegation made in the plaint
that they are excluded from succession as plaintiff No.1 is alone
distant kindred of late Abdulla Bin Musallam.  But, contrary to it, the
trial Court believed the claim of the plaintiffs and defendant Nos.5 to
11 and declared that plaintiff No.1 is the distant kindred of late
Abdulla Bin Musallam and plaintiff Nos.3 to 7 as owners of the
property.
b.      The trial Court did not consider the crucial admissions made by
PW.1 in his evidence about the exact relationship with late Abdulla
Bin Musallam.  Similarly, the evidence of PW.3 inspires no
confidence as he was convicted under Section 302 IPC.  PW.4 is the
brothers son of plaintiff No.1 and his evidence is not independent
evidence.  DW.4 is defendant No.6.  DWs.5 and 7 are brothers, DW.8
is mother and DWs.9 to 11 are sisters of DW.4.  When DW.4
claiming that defendant Nos.5 to 11 are alone entitled to claim right in
the suit schedule property, plaintiff No.1 cannot be declared as distant
kindred of late Abdulla Bin Musallam, on this ground alone, the suit is
liable to be dismissed.
c.      As Ali Bin Musallam, brother of late Abdulla Bin Musallam,
pre-deceased to him, therefore, defendant Nos.5 to 11 cannot be said
to be the heirs of late Abdulla Bin Musallam, but the trial Court on
wrong appreciation of facts, erroneously decreed the suit.
d.      Finally, it is contended that when the possession of the property
was taken over by the Government by initiating proceedings under the
A.P. Act of 1974 and granted eksal pattas in favour of defendant
Nos.13 to 24, the plaintiffs are not entitled to claim any relief in the
civil Court without challenging the proceedings initiated under the
A.P. Act of 1974 and that the plaintiffs though out of possession did
not seek relief of recovery of possession, on this ground also the suit
is liable to be dismissed, but the trial Court did not appreciate the facts
with reference to law and committed an error in decreeing the suit,
finally prayed to allow the appeal by setting aside the decree and
judgment of the trial Court.
25.     Whereas defendant Nos.1 to 4 filed A.S.No.1582 of 1997 and
raising various contentions, the following are the specific contentions
urged in the grounds of appeal:
a.      Plaintiff Nos.1 and 2 initially filed suit for declaration that
plaintiff No.1 is the heir (distant kindred) of late Abdulla Bin
Musallam, but later on, in the year 1992 plaintiff Nos.3 to 7 were
brought on record and claimed declaration that they are owners of the
property.  Therefore, the limitation starts from the date of their
impleading, but the trial Court did not consider the limitation in
proper perspective.
b.      The trial Court totally relied on the evidence on record
produced by the plaintiffs without considering the evidence regarding
initiation of proceedings under the A.P. Act of 1974, taking
possession of the property after due compliance of the provisions of
the Act, 1974, grant of eksal patta in favour of defendant Nos.13 to
24, thus, committed a grave error in decreeing the suit in favour of the
plaintiffs.  Thus, the findings of the trial Court are vitiated by
illegality and prayed to allow the appeal by setting aside the decree
and judgment passed by the trial Court and dismiss the suit filed by
the plaintiffs.
26.     During course of arguments, the learned counsel for defendant
Nos.13 to 24 mainly contended that they are in possession and
enjoyment of the property as eksal patta holders by virtue of the
proceedings bearing No.B1/2788/91 dated 01.09.1991.  Unless they
are duly evicted by due process of law, the plaintiffs cannot seek
perpetual injunction and relief of declaration that they are in
possession of the property.  Therefore, the finding of the trial Court is
erroneous on the face of record with regard to the maintainability of
the suit.  Apart from that there is a conflict between plaintiffs and
defendant Nos.5 to 11 regarding heir-ship.  Moreover, PW.1 himself
admitted in evidence that defendant Nos.5 and 6 are the legal heirs of
Ali Bin Musallam, elder brother of late Abdulla Bin Musallam.  At
best defendant Nos.5 and 6 being the residuaries are entitled to claim
the estate of late Abdulla Bin Musallam.  In such case, the trial Court
ought not to have granted relief in favour of plaintiff No.1 declaring
him as heir being the distant kindred, that apart, sale deeds executed in
favour of plaintiff Nos.3 to 7 by defendant Nos.5 to 11 would not
confer any title as those sales takes place during the pendency of the
suits.  But, the trial Court did not appreciate the contention of
defendant Nos.13 to 15 with regard to entitlement of the plaintiffs to
claim any right in the schedule property.
27.     The trial Court did not consider the limitation for filing a suit
for declaration of title and committed an error and defendant Nos.13
to 24 requested this Court to re-appreciate entire evidence with
reference to law and pass a decree and judgment dismissing the suit
while allowing this appeal.
28.     Learned Government Pleader in A.S.No.1582 of 1997 almost
argued similar to argument advanced by the learned counsel for
defendant Nos.13 to 24.  In addition to that, it is contended that the
possession of the property was already taken by the Government,
leased out to defendant Nos.13 to 24 by issuing eksal pattas and they
are in possession and enjoyment of the property.  Apart from that,
defendant No.1 initiated proceedings under the A.P. Act of 1974 and
after due compliance of the procedure contemplated therein, took
delivery of possession.  Unless the said proceedings are challenged,
the plaintiffs are not entitled to claim any relief and prayed to dismiss
the suit while allowing this appeal.
29.     Considering rival contentions, perusing the material available
on record including the decree and judgment, oral and documentary
evidence, the points that arise for consideration are as follows:
1.      Whether plaintiff No.1 is the distant kindred of late Abdulla
Bin Musallam?
2.      Whether plaintiff No.1 be declared as heir being the distant
kindred of late Abdulla Bin Musallam?
3.      Whether late Abdulla Bin Musallam died leaving no legal
heirs to succeed his estate?
4.       Whether plaintiff Nos.3 to 5, being the purchasers from
defendant Nos.5 to 11, are entitled to claim relief that they
are owners of the schedule property?
5.      Whether the claim of plaintiff Nos.3 to 6 is barred by
limitation?
POINT Nos.1 and 2:
30.     Undisputed facts in this case are that late Abdulla Bin
Musallam was the owner and possessor of the suit schedule property.
Late Abdulla Bin Musallam and his brother of Ali Bin Musallam are
the sons Abdulla Bin Sayeed and late Abdulla Bin Musallam is the
grand son of Syed Bin Mohammed.  Similarly, initiation of
proceedings under the A.P. Act of 1974 is also not equally in dispute.
The dispute is only with regard to the death of late Abdulla Bin
Musallam leaving no legal heirs and the relationship of plaintiff No.1
with late Abdulla Bin Musallam, so also, defendant Nos.5 to 11.
31.     To prove that plaintiff No.1 is the heir being distant kindred of
late Abdulla Bin Musallam, he himself was examined as PW.1.  PW.1
in his examination-in-chief testified about his relationship with late
Abdulla Bin Musallam and more specifically stated that his great
grandmother is the paternal aunt of late Abdulla Bin Musallam, who
died as imbecile and unmarried.  Thus, PW.1 is the heir of late
Abdulla Bin Musallam.  Admittedly, the plaintiffs and defendant
Nos.5 to 11 are covered by Hanani Law of Inheritance.  Plaintiff No.1
is not a sharer under
absence of defendant Nos.5 to 11, plaintiff No.1 is entitled to succeed Section 63 of the Hanafi Law of Inheritance.
Section 67 of Hanafi Law of Inheritance defined distant kindred as
follows:
Distant Kindred: (1) If there be no shares or
Residuaries, the inheritance is divided amongst Distant
Kindred.
(2)     If the only sharer be a husband or wife, and there
be no relation belonging to the class of Residuaries, the
husband or wife will take his or her full share, and the
remainder of the estate will be divided among Distant
Kindred.

32.     Again the Distant Kindred are divided into four classes under
Section 68 of the Hanafi Law of Inheritance, namely:
(1) descendants of the deceased other than sharers and
Residuaries;
(2) ascendants of the deceased other than sharers and
Residuaries;
(3) descendants of parents other than sharers and
Residuaries;
(4) descendants of ascendants how highsoever other than
Residuaries.
     The descendants of the deceased succeed in
priority to the ascendants, the ascendants of the deceased
in priority to the descendants of parents, and the
descendants of parents in preference to the descendants
of ascendants.

33.     Clause (2) of Section 68 of the Hanafi Law of Inheritance is the
list of Distant Kindred comprised in each of the four classes:
34.     Plaintiff No.1 is the Distant Kindred of late Abdulla Bin
Musallam as per clause IV (6) of Section 68     of the Hanafi Law of
Inheritance, who is entitled to priority over.  Undisputedly, plaintiff
No.1 is entitled to claim as a heir in the absence of sharers and
Residuaries.  Defendant Nos.5, 6 and 8 to 11 are the Residuaries
under Section 65 of the Hanafi Law of Inheritance.  In the cross-
examination dated 25.01.1994 PW.1 admitted that late Abdulla Bin
Musallam died on 04.12.1984 and his last rituals were performed by
defendant Nos.5, 6 and others and late Ali Been Musallam was the
elder brother of late Abdulla Bin Musallam.  Defendant Nos.5 to 7 are
the sons of Ali Bin Musallam.  Defendant No.8 is the wife and
defendant Nos.9 to 11 are daughters of late Ali Bin Musallam.  PW.1
further admitted that defendant Nos.5 to 11 are the nearest heirs of
late Abdulla Bin Musallam while denying that they looking after the
properties of late Abdulla Bin Musallam during his last days.
Strangely, PW.1 admitted that defendant Nos.5 to 11 are the nearest
legal heirs and also defendant Nos.5 to 7 are entitled to succeed the
properties of late Abdulla Bin Musallam as his legal heirs and in the
the property left by late Abdulla Bin Musallam.  Thus, crucial
admissions in the cross-examination dated 25.01.1994 totally takes
away the rights of plaintiff No.1 to succeed the estate of late Abdulla
Bin Musallam.  When defendant Nos.5 to 7 are nearest heirs of late
Abdulla Bin Musallam, plaintiff No.1 is excluded from succession.
Whereas, defendant Nos.5 to 7 being the sons of Ali Bin Musallam,
elder brother of late Abdulla Bin Musallam, are alone entitled to claim
right in the suit schedule property being Residuaries under Section 65
of the Hanafi Law of Inheritance.
35.     It is equally an admitted fact that defendant Nos.5 to 7 executed
sale deeds in favour of plaintiff Nos.3 to 7 marked as Exs.A.13 to
A.17, whereunder they conveyed the suit schedule in favour of
defendant Nos.3 to 6.  Curiously, plaintiff Nos.1 and 2 and defendant
Nos.5 to 17 entered into compromise during the pendency of the suit
and filed compromise petition in I.A.No.1930 of 1992 dated
13.10.1992 and the compromise was recorded by the trial Court.
Therefore, in view of the execution of Exs.A.13 to A.17, defendant
Nos.5 to 7 ceased to be the owners and plaintiff Nos.3 to 6 became
owners of the property by virtue of Exs.A.13 to A.17.
36.     The trial Court recorded a finding that plaintiff No.1 is the heir
of deceased late Abdulla Bin Musallam being the Distant Kindred.
This finding is an apparent error in view of the admission in the cross-
examination of PW.1 dated 25.01.1994.  The nearest heirs of late
Abdulla Bin Musallam are defendant Nos.5 to 7 excluding plaintiff
No.1 to succeed his property.  In the absence of defendant Nos.5 to 7,
plaintiff No.1 is alone nearest legal heir being Distant Kindred of late
Abdulla Bin Musallam.   When defendant Nos.5 to 7 sold the suit
schedule property under Exs.A.13 to A.17 being the legal heirs of
deceased late Abdulla Bin Musallam, plaintiff No.1 cannot be
declared as heir being the Distant Kindred.  Therefore, declaration of
plaintiff No.1 as heir of late Abdulla Bin Musallam as Distant Kindred
by the trial Court is erroneous and the same is liable to be set aside.
Hence, point No.1 is held in favour of defendant Nos.5 to 7 and
against plaintiff No.1.  Accordingly, point Nos.1 and 2 are answered.
POINT No.3:
37.     The contention of the plaintiff No. is that he is the nearest legal
heir being Distant Kindred and impleaded defendant Nos.5 to 11, who
are children and wife of deceased Ali Bin Musallam, who is elder
brother of late Abdulla Bin Musallam, who are claiming to be the
nearest legal heirs being Residuaries under Hanafi Law of Inheritance.
The admission of PW.1 in his cross-examination coupled with the
evidence of PWs.2 to 6 and established that defendant Nos.5 to 11 are
the children and wife of deceased Ali Bin Musallam, elder brother of
late Abdulla Bin Musallam.  In the entire cross-examination of PWs.1
to 6 nothing was elicited to disprove the relationship between
defendant Nos.5 to 11 and late Abdulla Bin Musallam, who died
intestate.  In the absence of any evidence to discredit the testimony of
PWs.1 to 4, the trial Court had no option except to believe the
testimony of PWs.1 to 4 regarding the relationship between defendant
Nos.5 to 11 with the deceased late Abdulla Bin Musallam.
38.     Turning to the evidence of DW.1, who was the Mandal
Revenue Officer and according to his evidence, he is the in-charge of
the file relating to case bearing No.B1/2788/91 and based on record he
deposed before the trial Court.  He deposed that he was directed by
the Joint Collectors letter bearing No.JCs Spl./37/87 dated
28.10.1987, calling for report from him about the legal heirs of late
Abdulla Bin Musallam.  Accordingly, he submitted a report to the
then Mandal Revenue Officer dated 03.11.1987 to send the same to
the Joint Collector, Karimnagar.  Thereafter, the Joint Collector
conducted enquiry as per the provisions of the A.P. Act of 1974,
passed final order on 29.05.1988 vide proceedings No.B6/3074/87,
authorizing Mandal Revenue Officer to take possession of the
property of late Abdulla Bin Musallam under Section 5 of the A.P.
Act of 1974.   Accordingly, Mandal Revenue Inspector took
possession of the property under a panchanama dated 05.07.1988 in
the presence of A. Ashanna, Parasharamulu and Kistaiah, whereas
Sarpanch of Malkapoor Village is signed as witness.  The Mandal
Revenue Inspector by letter dated 06.07.1988 reported about taking
possession of the property in the presence of panchas to the Joint
Collector.  After taking possession of the property of Ac.36.01 gts.,
the land was handed over to 12 individuals under eksal pattas to
defendant Nos.13 to 24 and they are in possession and enjoyment of
the property.  He did not testify anything that late Abdulla Bin
Musallam died leaving no legal heirs.  In the cross-examination, the
plaintiffs questioned the very proceedings under the A.P. Act of 1974
and similarly, defendant Nos.5 to 11 also questioned the proceedings
while suggesting that they are owners, legal heirs of late Abdulla Bin
Musallam under Hanafi Law of Inheritance, but DW.1 pleaded
ignorance of plaintiffs right to claim the property being the nearest
legal heirs of late Abdulla Bin Musallam.
39.     The Deputy Inspector of Survey was examined as DW.2.  His
evidence is not relevant for deciding the present controversy regarding
the death of late Abdulla Bin Musallam without leaving any legal heir.
DW.3 is the Upper Division Revenue Inspector of Gangadhara
Village and earlier he worked as Revenue Inspector in M.R.O. Office,
Karimnagar, testified about taking possession of the suit property and
his evidence is not relevant to decide legal heirs of late Abdulla Bin
Musallam.  DW.6 is defendant No.12 in the suit related to defendant
Nos.5 to 11.  According to his testimony originally the land belongs to
his father Shaik Saleem.  Shaik Saleh is the son of his fathers elder
brother and his sister is given in marriage to Shaik Saleh and his
father had three brothers.  One Abudalla was not having any legal
heirs and he died unmarried.  His brother-in-law Shaik Saleh own
some property recorded in the name of late Abdulla Bin Musallam for
his selfish ends also to grab to the lands.  At best the evidence of
DW.6 is helpful to claim a right in the property of late Abdulla Bin
Musallam as the property is an ancestral property.  But, no iota of
evidence is brought on record to claim that the schedule property is
the ancestral property of DW.6.  In fact, it was not the case of DW.6
in the pleadings and for the first time he started claiming right in the
schedule property on the ground that the schedule property belongs to
his ancestors.  In the absence of pleading, it is difficult to believe the
evidence of DW.6.  Therefore, much credence cannot be attached to
the testimony of DW.6.
40.     Turning to the evidence of DW.7, who is the beneficiary of
eksal lease, claiming to be the possessor of the property in view of the
eksal patta granted in his favour along with others.  DWs.8 and 9 are
also beneficiaries of eksal patta, who claimed to be in possession of
Ac.3.00 of land each.  Their evidence is not relevant to decide late
Abdulla Bin Musallam died without leaving heirs.  In the entire cross-
examination of PWs.1 to 4 nothing could be elicited by the counsel
for the defendants, that apart, the evidence of DW.5 is also in support
of plaintiffs case.  Therefore, by examining PWs.1 to 4 it is
established that defendant Nos.5 to 7 are the nearest legal heirs being
the Residuaries and sons of Ali Bin Musallam, elder brother of late
Abdulla Bin Musallam.  Hence, the contention that late Abdulla Bin
Musallam died without leaving any legal heirs is false on the face of
the record.
41.     The trial Court after appreciating the evidence of PWs.1 to 4
coupled with the documentary evidence marked as Exs.A.11 and A.12
concluded that defendant Nos.5 to 7 are the nearest legal heirs of late
Abdulla Bin Musallam.  This finding does not call for interference of
this Court as I find no legal infirmity in the finding recorded by the
trial Court. I, therefore, hold that defendant Nos.5 to 7 are the nearest
legal heirs of late Abdulla Bin Musallam.  Accordingly, this point is
answered in favour of defendant Nos.5 to 7 and against plaintiff No.1
and defendant Nos.13 to 24.
POINT No.4:
42.     Plaintiff Nos.3 to 6 claimed ownership over the property by
virtue of Exs.A.9 and A.13 to A.17 executed by defendant Nos.5 to 7
in their favour.  As per my finding on point Nos.1 to 3, defendant
Nos.5 to 7 are the nearest legal heirs of late Abdulla Bin Musallam
and defendant Nos.5 to 7 executed Exs.A.9 and A.13 to A.17 in
favour of plaintiff Nos.3 to 6.  When defendant Nos.5 to 7 are the
legal heirs and conveyed the property in favour of plaintiff Nos.3 to 6,
they will become absolute owners of the property.
43.     The major contention of defendant Nos.1 to 4 is that the
Government initiated proceedings under the A.P. Act of 1974 after
following due procedure and took the possession of the schedule
property, later on, granted eksal pattas in favour of defendant Nos.13
to 24 and they are in possession of the property.  The plaintiffs
questioned the very same proceedings initiated by defendant No.1 and
taking possession by defendant No.4 on the ground that the procedure
contemplated under the A.P. Act of 1974, was not followed.
Therefore, the proceeding initiated under the A.P. Act of 1974 is not
valid and Exs.B.1 to B.5 are not enforceable under law.
44.     Before adverting to the compliance of procedure as contended
by the defendant Nos.1 to 4, the definition of bona vantia would
serve useful purpose.  Section 2(1) of the Act defined bona vacantia.
Bona vacantia includes any property, situated in the
State of which there is no rightful owner, but does not
include an escheat on any immovable property and found
in a public place.

Whereas, escheat is defined under Section 2(iv) of the Act.
escheat means any property the owner of which dies
intestate and without leaving legal heir.

45.     According to the contention of defendant Nos.1 to 4 and 13 to
24, late Abdulla Bin Musallam died without leaving legal heirs.
Therefore, the property is deemed to be an escheat as defined under
Section 2(iv) of the Act.  According to my findings in the earlier
points, late Abdulla Bin Musallam though died intestate, but left
behind him his legal heirs i.e., defendant Nos.5 to 7, who were the
sons late Ali Bin Musallam, who was elder brother of late Abdulla
Bin Musallam, predeceased to him.  Therefore, the property cannot be
said to be an escheat as late Abdulla Bin Musallam left behind him
defendant Nos.5 to 7 as his legal heirs.  Certain procedure is
prescribed to declare a particular property as escheat or bona vacantia.
Section 4 of the Act deals with general superintendence of escheat and
bona vacantia.  According to Section 6 of the Act, the Government is
empowered to dispose of escheat or bona vacantia in the manner
prescribed therein.  But, Section 7 prescribed an inquiry relating to
escheat or bona vacantia by a local officer, under Section 5 of the Act
is as follows:
Whenever the local officer receives information from
any source that any property of the nature of an escheat
or bona vacantia is situated or lying within his
jurisdiction, he shall cause an inquiry to be made in
support thereof.

46.     In view of the Section 7 of the A.P. Act of 1974, an inquiry is
required to be made on mere notice by local officer, without enquiry
directing delivery of possession of certain lands which were in
possession of certain persons is not legal as held by this Court in G.
Narasimha Reddy & others v. State of A.P., .  In the present case,
no inquiry was conducted as contemplated under Section 7 of the Act
and no material is brought on record about strict compliance of
Section 7 of the Act.  Section 8 contemplates the procedure for
instituting a suit for recovery of possession of escheat or bona
vacantia where a person in possession.  According to Section 9 of the
Act, where the property of the nature of an escheat or a bona vacantia
is not in the possession of any person or where the person in
possession surrenders such possession when demanded, the local
officer shall take the property into his custody and arrange for its care
and maintenance until the claim is settled under Section 11 of the Act.
The Rules framed under the A.P. Act of 1974 prescribed the
procedure for taking possession of the property.  Rule 3 of the Andhra
Pradesh Escheats and Bona Vacantia Rules, 1975 deals with
procedure for disposal of property declared as escheat or bona
vacantia and Rule 4 deals with management of escheat, bona vacantia
handed over by court till its disposal.
47.     According to Section 9 read with Section 11 of the Act, the
possession of the property shall be taken under panchanama in the
presence of five panchas.  But, in the present case, the possession was
allegedly taken in the presence of three panchas vide Ex.B.2.
According to Section 10 of the A.P. Act of 1974, the local officer has
to prepare on the site and in the presence of not less than five
respectable persons of the locality, an inventory of the property taken
into his custody under Section 9 Act and forthwith send a report in the
prescribed form to the competent authority, together with a copy of
the inventory; and where such property is an immovable property, the
leasehold rights thereof shall be sold by public auction by such
revenue authority and after following such procedure as may be
prescribed and the sale proceeds shall be held in deposit etc.,  The
report must be in Form-I prescribed under the Rules, disclosing the
details contained in Form-I from 1 to 11 and shall be signed by a local
officer with date along with remarks.  After receiving report in Form-I
under Section 10 of the Act, a notice (Form-II) under Section 11(1) of
the Act is to be issued inviting objections calling upon the person,
who has claimed to such property, to prefer his claiming to such
property in the prescribed proforma within three months.  Form-II is
the proforma prescribed to make such claim within three months.  In
this case, no possession was taken under Section 9 of the Act in the
presence of five panchas as required under Section 10 of the Act when
prepared on the site plan.  But, the possession of the property was
allegedly taken by the Mandal Revenue Inspector in the presence of
three panchas viz., A. Ashaiah, V.Parashuram and K.Kistaiah and
submitted report along with covering letter, which is marked as
Ex.B.2.  The panchanama dated 05.07.1988 marked as Ex.B.1 is
totally in utter disregard of the procedure as contemplated under
Section 10(1) of the Act.  Since the possession was allegedly taken in
the presence of three panchas, whereas the section provides the local
officer shall prepare on the site and in the presence of not less than
five respectable persons of the locality possession be taken.  The
Mandal Revenue Inspector-DW.3 after taking alleged possession of
the property under Section 9 of the Act, he has to submit his report in
Form-I under Section 10(1) of the Act containing the details
mentioned therein.  But, no such report was submitted to the
competent Authority, except sending a panchanama.  When no report
was sent in Form-I under Section 10(1) of the Act, question of issuing
notice in Form-II under Section 11(1) of the Act by the Mandal
Revenue Inspector or Joint Collector calling for claims from the
public does not arise.  Defendant Nos.1 to 4 did not produce any
material about the compliance of Sections 10(1) of the Act and in the
absence of calling for objection, notice under Section 11(1) in Form-
II, the question of the plaintiffs or defendants submitting their
objections or claims about taking possession of escheat property does
not arise.
48.     Curiously, the witnesses examined on behalf of defendant
Nos.1 to 3 made categorical admissions that no declaration as required
Section 11 of the Act was issued.  In view of the procedure under
Section 11 of the Act, the local officer is under obligation to publish a
notice in such manner as may be prescribed, calling upon the persons
who may have any claim to such property under Form-II within three
months from the date of publication of the notice.  But, no such
publication of notice was issued.  Similarly, the local officer is under
obligation to refer the claim to the Court for its decision as to whether
or not the person making the claim is entitled to the property and the
Court shall, after giving a notice to the local officer and the claimant,
decide the reference, as if it were a suit.  But, compliance of procedure
under Section 11(3)(a) of the Act is totally absent in the present facts.
49.     Further a declaration is required under Section 12 of the Act
and according to it, as soon as a declaration is made by the local
officer under sub-section (2) of Section 11 or by the Court under
clause (b) of sub-section (3) of that Section, the local officer shall
publish a notification thereof in the Andhra Pradesh Gazette and in a
local newspaper of district where the property is situated or lies, and
shall also cause an announcement of the declaration to be made by
beat of drum in the village in which the property is situated or lies.
Here, no declaration under Section 11(2) or clause (b) of sub-section 3
of Section 11 of the Act was issued.  Thereby, the question of
publication of declaration in the Andhra Pradesh Gazette and local
newspaper of the district where the property is situated and by beating
of drum in the village does not arise.
50.     Apart from the above procedural lacunas pointed out by the
learned counsel for the plaintiffs, there is a direct interdict on the
rights of the Government to dispose of the property as contemplated
under Section 13.  Section 13 of the Act created interdict to dispose
any immovable property and according to it no immovable property,
which is declared as escheat or bona vacantia shall ordinarily be
alienated by sale or grant until it has been in the possession of the
Government for twelve years.  Therefore, it is obvious from Section
13 of the Act that from the date of taking possession under Section 9
and 11 of the Act, the Government shall continue in possession of the
property for a period of not less than 12 years and after completion of
12 years period from the date of taking of custody of escheat property,
it can be disposed of by sale or grant.  In the present case, the custody
of the property was allegedly taken under Ex.B.1 on 05.07.1988 and
issued eksal pattas under Ex.B.3 in favour of  defendant Nos.13 to 24
on 01.09.1991.  Therefore, the issue of eksal pattas in favour of
defendant Nos.13 to 24 is in utter disregard of bar under Section 13 of
the Act.
51.     Similar question came up before this Court V.Lingamma and
others v. Government of Andhra Pradesh .  This Court while
discussing the procedure under the A.P. Act of 1974, more
particularly, Sections 8, 9, 11 and 12 held in para 12: following the
decision in G. Narasimha Reddy (1 supra),
without conducting any enquiry as contemplated under
Section 12 of the Act, the authorities cannot just come to
a conclusion that particularly property is an Escheat or
Bona Vacantia. In view of the same, on the unilateral
report procured, the Joint Collector cannot treat the
property in question as escheat or Bona Vacantia without
causing an enquiry under Section 7 after due notice to the
parties who put up their claims over the property or
claiming to be the purchasers of the said property. If it is
found that the property of the nature of an Escheat or
Bona Vacantia is in the possession of a person who has
no authority to claim over the property, the local officer
after obtaining sanction of the competent authority
institute a suit in a Court for declaration of the
Government's right to the property for recovery of
possession of such property and only after such
declaration by the Court that the property is an escheat or
bona vacantia, the local officer can obtain possession and
issue notification. Section 9 contemplates where the
property of the nature of an escheat or a Bona Vacantia is
not in possession of any person or where the person in
possession surrenders such possession when demanded,  
the local officer shall take the property into his custody
and arrange for its care and maintenance until the claim
is settled under Section 11, namely after taking
possession of the property he can issue public notice in
such manner as may be prescribed. The very nature of
enquiry under Section 7 does contemplate issuance of
notice to the parties who are likely to be affected by such
declaration. In view of the same, it is obligatory on the
part of the respondents to conduct an enquiry before
passing the impugned order

52.     In view of the principles laid down in the above judgment,
unless an enquiry as contemplated under Section 7 of the Act and by
following necessary procedure under Sections 9, 10 and 11 of the Act,
the property cannot be declared as escheat under Section 12 of the
Act.  But, in the present case except producing Exs.B.1 and B.2 as
part of compliance of the procedure under Section 10(1) of the Act,
nothing has been brought on record to establish the strict adherence of
the procedure contemplated under the A.P. Act of 1974.  In the
absence of compliance of the procedure under the A.P. Act of 1974, it
is difficult to hold that the possession of the property was taken by
defendant Nos.1 to 4 and later on, the same was handed over to
defendant Nos.13 to 24 by issuing eksal pattas.  Even assuming for a
moment that pattas were granted under Exs.B.3 and B.4 to defendant
No.13 to 24, those pattas are only for a period of one year i.e., 1991-
1992 and not renewed from time to time as required under law.
Therefore, the eksal patta holders i.e., defendant Nos.13 to 24, if any,
are liable to vacate and deliver possession of the property after expiry
of one year period.  Thus, defendant Nos.1 to 4 are totally violated the
procedure as contemplated under Sections 9, 10, 11 and 12 of the Act
and allegedly took possession of the property.
53.     Curiously, in the present case, plaintiff Nos.1 and 2 filed
W.P.No.10179 of 1988 which was disposed of at the stage of
admission by order dated 08.07.1988, defendant No.3 is directed not
to evict plaintiff Nos.1 and 2 from the land in question for a period of
three months from the date of order.  Thus, by the date of order,
plaintiff No.1 is deemed to be in possession since defendant No.3 was
directed not to dispossess him.  Thereafter, plaintiff No.1 issued a
notice under Ex.A.3 stating that he is in possession of the property and
filed the present suit in the year 1988.  Thereby, the question of taking
possession on 05.07.1988 under Ex.B.1 appears to be an artificial act
of defendant No.13 and at best it is only a paper transaction of taking
custody of the property.  If really the custody of the property was
taken on 05.07.1988, defendant Nos.1 to 3 would have issued a reply
by disclosing the date of taking custody of the property to the notice
Ex.A.3.  Added to that when an injunction was in force under Ex.A.1
dated 08.07.1988 directing defendant No.3 not to dispossess the
plaintiffs from the possession of the property for three months, the
alleged taking custody or possession under Ex.B.1, if any, true is in
clear violation of order of this Court.  Hence, I hold that taking
custody of the possession of the property under Ex.B.1 is vitiated by
illegality and irregularity and it is only a paper transaction of taking
custody of the property.
54.     Though defendant Nos.13 to 24 contending that they are in
possession of the property in pursuance of eksal pattas under Ex.B.3,
nothing has been produced to prove that they are in possession of the
property.  Since taking custody of the property under Ex.B.1 is in utter
disregard of order under Ex.A.1, their possession cannot be accepted
as it is illegal possession even their possession is for one year.
Considering all these facts and attending circumstances of the case, it
is difficult to hold that defendant Nos.13 to 24 are in possession and
enjoyment of the property on the date of injunction for three months
granted by this Court under Ex.A.1 and later the interim injunction
was granted by the trial Court restraining defendants from
dispossessing plaintiffs holding that the plaintiffs established that they
are in possession of the property.
55.     Plaintiff Nos.3 to 6 have purchased the property under Exs.A.9,
13 to 17 from the nearest legal heirs who succeeded the estate of late
Abdulla Bin Musallam, they became owners of the property and they
are entitled to claim declaration of title to the property.  Accordingly,
this point is answered in favour of plaintiff Nos.3 to 6 and against
defendant Nos.1 to 4 and 13 to 24.


POINT No.5 :
56.     One of the contentions raised in the grounds of appeal is that
the claim of plaintiffs is barred by limitation.  Since the plaintiff Nos.3
to 6 have come on record in the year 1992 by virtue of the order dated
11.08.1992 in I.A.No.1106 of 1992 and they are deemed to have come
on record only the date when they were impleaded.  Undoubtedly, the
limitation to claim declaration under Article 58 of the Indian
Limitation Act is three years and the limitation starts from the date
when the right to sue first accrued.   In the present case, defendant
Nos.5 and 6 were impleaded by order in I.A.No.2024 of 1998 dated
09.02.1990, plaintiff Nos.3 to 6 are claiming rights only through
defendant Nos.5 to 7.  When the alleged proceedings took place in the
year 1988, assuming that the limitation starts from the date when
Ex.B.1 panchanama was prepared, allegedly taking custody of the
property, the suit is still in time for the reason that plaintiff Nos.3 to 6
are claiming right only through defendant Nos.5 to 7.  Therefore, the
question of bar of limitation to claim declaration by plaintiffs under
Limitation Act does not arise.  No such contention was raised before
the trial Court and no issue was framed but for the first time in the
grounds of appeal raised the said contention without any factual
foundation in the pleadings, though, limitation is mixed question of
fact law.  On overall consideration of entire evidence including the
dcoumetnary evidence, I find that the claim of plaintiff Nos.3 to 6 is
within time as they are claiming right through defendant Nos.5 to 7,
who are already on record by 1990 ie.., within three years from the
date of Ex.B.1.  Added to that, defendant Nos.5 to 7 also claimed right
in their written statement being the nearest legal heirs of late Abdulla
Bin Musallam.  I, therefore, hold that the suit claim of plaintiff Nos.3
to 6 is within limitation.  Accordingly, this point is held against
defendant Nos.1 to 4 and 13 to 24.
57.     One of the contentions raised before the trial Court is that since
defendant Nos.13 to 24 are in possession and enjoyment without
seeking relief of recovery of possession, plaintiffs are not entitled to
claim relief of declaration as discussed earlier in the earlier paras,
defendants miserably failed to establish their possession over the
property and on the other hand this Court while accepting possession
of defendant No.1 directed defendants not to dispossess plaintiff No.1
from possession of the property under Ex.A.1 after issuing notice,
plaintiffs filed the present suit and undisputedly defendant Nos.5 to 11
and plaintiff Nos.1 and 2 were compromised as per orders in
I.A.No.1930 of 1992.  Defendants also failed to establish that they are
continuing in possession of the property, consequently the contention
of the defendants that plaintiff Nos.3 to 6 are not entitled to claim
relief of declaration of title, without seeking relief of recovery of
possession is without any substance and this contention would stand
to any legal scrutiny by this Court.
58.     In view of my findings on point Nos.1 to 5, both the appeals are
devoid of merits and deserves to be dismissed.
59.     In the result, A.S.Nos.1490 of 1996 and 1582 of 1997 are
dismissed, but without costs.
60.     Miscellaneous Petitions pending, if any, shall stand closed.

_________________________________    
M. SATYANARAYANA MURTHY, J      
19th August 2015.