Andhra Pradesh High Court - Amravati
Tatikonda Pardha Saradhi, vs Murikipudi Srinivasa Rao, on 4 July, 2022
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
MAIN CASE: S.A.No.270 of 2022
PROCEEDING SHEET
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HCJ
2. & 04.07.2022
RSR, J KSR,J
Defendant No.1 in O.S.No.500 of 2010 on
the file of the Court of I Additional Junior Civil
Judge, Guntur, is the appellant herein. The 1st
respondent/plaintiff filed the above suit against
the appellant and defendant No.2 for recovery of
Rs.1,00,000/-towards the advance amount
under an Agreement of Sale, dated 13.04.2007
with subsequent interest @ 24% per annum and
for costs.
2. It is the case of the 1st respondent
/plaintiff that the appellant/defendant No.1
approached him stating that the property in an
extent of 404 square yards of site was ready for
sale and stated that one Boyapati Madana
Mohanrao and Boyapati Sambasiva Rao are the
owners of the said property. On believing his
words, 1st respondent/plaintiff visited the said
house site along with the appellant and agreed
to purchase the suit schedule property. He also
verified in the office of the Sub-Registrar,Guntur
and came to know that Boyapati Madana
Mohanrao and Boyapati Sambasiva Rao are the
owners of the said house site. When plaintiff
expressed his willingness to purchase the said
property, the appellant set up two persons as
Boyapati Madana Mohanrao and Boyapati
Sambasiva Rao and took the 1st
respondent/plaintiff to their house, which is
situated at Door No.5-89-27, Lakshmipuram,
3rd road, Abhyudaya Mahila College, Guntur
and showed them as they are the owners of the
said property. Then, the 2nd defendant wrote an
Agreement of Sale on 13.04.2007 in favour of
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the plaintiff for total sale consideration of
Rs.3,73,700/-.
3. On the same day, an amount of
Rs.1,00,116/- was paid towards advance to the
1st defendant. As the 1st defendant is not taking
any interest to get registered a sale deed in
favour of the plaintiff, he suspected the 1st
defendant and on verification, he came to know
that Boyapati Madana Mohanrao died about 10
years back and Boyapati Sambasiva Rao died
about 2 or 3 years back. On coming know
about the cheating committed by the 1st
defendant, plaintiff requested him to refund the
advance amount, but he did not choose to
return. On that, he lodged a report before
I-Town Police Station, Chirala on 01.09.2009
against the 1st defendant. As the police did not
take any action against the defendants, he filed
a private complaint before the Additional Munsif
Magistrate, Chirala, for the offences punishable
under Sections 181, 199, 406, 417, 419, 420
r/w 34 IPC, which culminated into C.C.No.222
of 2010 on the file of the Court of Additional
Munsif Magistrate, Chirala, and the same ended
in acquittal.
4. After receipt of notice, the defendants
1 & 2 filed separate written statements. It is
contended by the 1st defendant that he has
nothing to do with the suit schedule property
and he is not the owner of the suit schedule
property. He only signed on the Agreement of
Sale as a witness. After elaborate trial, the trail
Court decreed the suit against the 1st
defendant, vide, Judgment and Decree, dated
10.07.2013. Aggrieved by the same, the 1st
defendant filed appeal suit in A.S.No.252 of
2015 on the file of the Court II Additional
District Judge, Guntur. After hearing both
sides, the appellate Court dismissed the appeal
on 30.11.2021 by confirming the Judgment and
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Decree passed by the trial Court. Aggrieved by
the same, the appellant/1st defendant filed the
present second appeal.
5. In view of the facts and
circumstances of the case and the following
substantial questions of law :
1. Whether in the facts and circumstances of
the case, the findings of the Courts below
granting decree in favour of Plaintiff on the
sole basis of the non-examination of the
appellant /1st Defendant is legally
sustainable ?
2. Whether in the facts and circumstances of
the case, the approach of the Courts below
placing the burden of proof wrongly on the
appellant / 1st defendant to establish that
he did not receive any amount from the
plaintiff and that he did not introduce any
persons as owners of the plaintiff, is
legally sustainable as the same amounts
to insisting the appellant / 1st defendant to
adduce negative proof contrary to Sections
101 to 103 of Evidence Act ?
3. Whether in the facts and circumstances of
the case, an attesting witness can be
presumed to have known or acquainted
with the contents of the document and
identity of the executants compared to the
identifying witness ?
Admit the Second Appeal.
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KSR,J
I.A.No.1 of 2022
This application is filed under Section
151 of CPC seeking stay of execution of decree
and Judgment in O.S.No.500 of 2010 on the file
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of the Court of the I Additional Junior Civil
Judge, Guntur, pursuant to the judgment and
decree, dated 30.11.2021 passed in A.S.No.252
of 2021 on the file of the Court of the II
Additional District Judge, Guntur, pending
disposal of the second appeal.
2. Heard learned counsel for the
petitioner/appellant.
3. Having regard to the facts and
circumstances of the case and for the reasons
mentioned in the memorandum of grounds,
there shall be interim stay of execution of
Judgment and decree, dated 10.07.2013 in
O.S.No.500 of 2010 on the file of the Court of
the I Additional Junior Civil Judge, Guntur,
subject to the condition that the petitioner has
to deposit 50% of the decretal amount along
with costs, within a period of six (06) weeks,
from the date of receipt of a copy of the order.
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KSR,J
RPD
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