2009 SAR

1. Adverse possession-new concept : pleas of ownership and adverse possession available on the same fact-when a person is in possession asserting to be owner , even if he fails to establish his title, his possession would still be adverse to the true owner.- a deep analysis-684.

2. Resjudicate – a criminal case decision would not operate as resjudicate for civil case.cheque bouns case was dismissed and money suit of the same cheque would not be dismissed as the cheque bouns case was dismissed as the standard of proof in both cases is different. The doctrine of reverse of burden or evidentiary burden can not be imposed in civil proceeding-708.

3. sec.149 cpc granting permission for paying deficit court fee- and also allowing delay refilling of suit on payment of deficit court fee-can not be questioned later by defendants-658. 4. Benefit of enhancement for acquired land cannot be restricted to the deficit court fee paid. Court fee can be recovered later.693.

5. Hindu marriage act- mutual consent divorce- on the fix date if any party not turned up no exparte decree can be passed as the court lost jurisdiction for granting mutual consent divorce.708.

6. Hindu succession act sec.14(1) and (2)-sec.covers every kind of acquisition of property by a female Hindu- properties are recorded in the name of Hindu female-in the absence of any evidence to the contrary-female by operation of sec.14-1 is full owner. 728. 7. Hindu succession act sec.15 (1) –general rule of succession of female Hindu of self acquired property- lies on the heirs of husband in the absence of children sand husband. But not onthe mother of deceased female.704.

8. Hindu succession act sec.6, 8 and amended sec.23 came in to force in 2005 central amendment-omission of pleading under sec.23. Will proved not genuine- during pendency of appeal, amendment of sec.23 came to force- act is prospective-omission does not bar to file fresh suit for partition by daughters-609.

9. Adverse possession-long possession-not sufficient to prove adverse possession- relationship of the parties may have to be taken into consideration-joint family property-both the brothers were co-sharers.for the purpose of saving the property from the creditor-four registered deeds were executed on the dame day- deed of partition were executed-properties were divided in equal share between two brother-appellant sold his share to respondent-two deeds of settlement—in terms whereof, the lands were settled to appellant for enjoyment during his lifetime-suit for possession- in w/s, it was pleaded by appellant that he being in possession of suit property for a period of more than 12 years acquired title by adverse possession—upon execution of deeds the nature of his possession was changed so it is permissive in nature and further more as per sec.31 of specific relief act registered documents carry a presumption of valid execution- unless it is challenged in court under above section. As appellant not filed any suit in terms of sec.31 of the sp act could not raise the pleas that the transaction were sham and nominal. 567.

10. For letter of administration the limitation is 3 years under section 137 limitation.

11. T.P. act sec.130and135 and insurance act sec.38-insurance polices assigned in favour of bank- such an assignment amounts to transfer of actionable claim-bank is entitled to the insurance amount directly from the insurance company- terrorist destroyed the units- the bank which gave loan for the units can claim insurance as those policies are assigned to the bank. And further more in the claim of complainant, the bank directly demand for payment to them, they need not be as one of the plaintiff-73.

12. MONOPOLIES AND RESTRICTIVE TRADE PRACTICE ACT sec.12-B. an agent is not liable for acts of a disclosed principal-appellant premnath motors Ltd. Was a dealer to the Pal motors.- advertisements were given by Pal motors- respondent submitted their application at Prem Nath motors with a cheque in the name of Pal motors- he did not get the delivery. Claim petition under sec.12_B of the act- application filed by appellant was dismissed by commission as the agent could be sued when the principal had been disclosed-67.

13. Sec.151 cpc- jurisdiction of trial court- suit for a decree of divorce under sec.27 of the special marriage act 1954, - wife preferred a claim for medical reimbursement by filing an application under sec.151 cpc, in the pending suit- maintainability of – maintainable----1.

14. Hindu marriage act- mental cruelty- wife very much interested in her personal career and avoid having children unilaterally and neglecting towards matrimonial obligations and terminated pregnancies twice without the consent of husband is amounting to mental cruelty. Divorce can be granted-7.

15. Or.23, rule 1 – withdrawal of suit without giving notice to the interested parties under the guise of compromise not valid and is not binding on the parties who have no notice of compromise.-372.

16. sec.145(4)and(^) of Cr.P.C.- restoration of possession after expiry of 3 years not permissible in view of Art.137 of limitation act- sec.397 (3) –second revision- bar under sec.397(3)-can be lifted in special cases- proceedings under sec.145(4) of the code-for implementation under sec.156(6) of CrPC-allowed - revision was dismissed-second appeal-allowed by high court-power of the high court to entertain petition under sec.482, was not subject to the provisions of sec. 397(3).-366.

17. Unfair trade practice- consumer protection act- without affiliation and recognition, offering medical courses and receiving huge amounts from the students is unfair; the students are entitled for compensation-344.

18. Agreement of sale –valid execution -an agreement of sale was signed by vendor alone and delivered the deed to the vendee is enough who received the same as acceptance- valid-247. 19.Resjudicata- two suits –clubbed- one suit decreed and another suit is dismissed- appeal only filed against dismissed suit-but not against decreed suit by the aggrieved party- it operates as resjudicata-203. 20. Non filing of replication to the written statement filed by the defendant does not amounting to admission as per or .6 rule 1 which means the pleadings are only plaint and w/s .plaintiff could have filed the replication but not filed, but filed objections by way of affidavit in injunction ia, is not challenged by other side, does not means as admission-277.

21. Resjudicata –dismissal of the suit for non-prosecution was not a decision on merit- order cannot operate as resjudicata-or.9, rule 8-232.

22. Indian contract act sec.74- default clause in a compromise decree would not be considered to be a penal clause-one of term of decree was that on failure to make payment in time, the plaintiff is entitled to claim interest at @18%pa –consent decree was acted upon-as such it cannot be considered as penal clause to attract sec.74.-241.

23. Indian evidence act sec.68- when the gift deed is denied –the burden lies to examine the witness of the deed is compulsory- else it cannot be considered as proved-277.

24. Pre-emption- sale of specific portion of the land out of the joint holding by one of co-owners is nothing but sale of a share out of the joint holding and is pre-emptible- when there is no partition, joint holder has got higher rights than the purchaser-267.

25. specific relief act sec 16© - vendee had performed her part by paying the earnest money and sent a notice conveying her willing ness and readiness to pay the balance amount of sale consideration-notice was acknowledge –plaintiff is entitled for decree-247.

26. will – execution proof-the scribe and one of the attesting witness died before the date of examination-second witness was not in good physical condition –appellant led secondary evidence-the son of attesting witness who did not state his was an attesting witness-one identified witness was also examined who never deposed about execution of the will and conditions of executants- will not proved as per evidence act-277.

27. Motor accident’s claims-deceased aged about 20 years, bachelor, income was fixed at 4000/- per month basing on income tax returns, multiplier of 14 is fixed for calculation, taking the younger age of parents into consideration. Apex court fixed 4 lakes- 257.

28. Motor accident’s claims- asst. executive engineer lost both legs, no deduction of expenses, aged 55 years, and fixed 19 laks-222.

29. Hindu marriage act- sec.24 even for enhancement of interim maintenance is to be disposed off before commencement of t rial-215.

30. Sec.60 c.p.c.- sec.60 (1) (g) – attachment of pension and gratuity even in form of fixed deposits after receiving also can not be attached-119.

31. T.P.Act sec.58- interpretation of a deed- documents must be read in its entirety-appellant was the owner of in respect of half of the property-parties were related to each other- it is difficult to conceive that the other half of the property would be subject to mortgage and not a sale—136.

32. Indian stamp act sec.33 and 35- interpretation of words ‘for any purpose whatsoever”- used in sec.35 of the act should be given their natural meaning –if all purposes for which the document is sought to be brought in evidence are excluded- would not be admissible for collateral purposes- transfer of a house, entire amount of consideration was paid, possession had been delivered, for effecting transfer-permission was rejected by collector- suit for recovery of the amount of consideration- agreement, which was sought to registered as a sale deed has been relied- it was directed to impounded stating that such instrument will be admitted in evidence on payment of duty- petition under art.227 of the constitution-whether the document was admissible for collateral purpose – held no—142.

33. sec.21 cpc-question of territorial jurisdiction-unless respondent suffered any prejudice, they could not have question the jurisdiction of the court- only one question raised by the respondent was that the tribunal lost territorial jurisdiction – on that single point, no appeal is to be entertainable-167.

34. C.P.C. or.8, rule 1 –acceptance of WS after 90 days, permissible court can extend time beyond 90 days if reasons furnished.-126.

35. CPC or.8, rule 1 and 10 – when defendant fail to file written statement, the court can proceed under or.8, rule 10 and pronounce judgement.-132.

36. Sec.151 cpc- application for issuance of directions to the defendant to pay rent / compensation at the enhanced rate- rejected by the trial and high court, apex directed the respondent to pay amount by way of rent/compensation for the premises in their occupation during the pendency of suit-633.

37. Or.22, rule 4(4) cpc- adding of legal heirs after passing of decree is wrong- decree is non-est in law-586.

38. motor accident claim- sec.166- future prospects of deceased to be taken in to consideration- salary is 4000 .by the date retirement it would be 8000/- 50% adding fixing 6000/- I s proper and just-592.

39.

2009 ALT

1. AP CO-OPERATIVE SOCIETIES ACT – SEC.52, AND 60- PASSING surcharge orders basing on inquiry report , without conducting enquiry, without giving opportunity for cross-examining the witnesses, is invalid- vol.5-92.

2. AP CO-OPERATIVE SOCIETIES ACT- SEC. 62(4) AND 151 OF CPC- GRANTING INTERIEM INJUNCTION restraining the elected body from discharging their functions – is illegal and out of scope of election tribunal – vol. 5-130.

3. AP WATER,LANDAND TREES ACT SEC.15(1) AND (2)- DIGGING OF BORE WELL-violation of provisions of act- order passed by tahsildar directing revenue inspector to seize bore well dug by appellant without serving statutory notice on him- liable to be quashed being violative of principles of natural justice- vol5-112.

4. Or. 9, rule 13 C.P.C -set aside exparte decree, within 30 days from the date of knowledge is valid- it cannot be dismissed, without enquiry, as barred by limitation, without giving correct finding regarding date of knowledge when the petitioner exactly come to the notice of exparte decree-vol.5-187.

5. Or.11,rule 12- discovery of documents- party may apply to court to direct the other party to produce documents in his possession- petitioner/defendant and other defendants made application to direct plaintiff to produce 7 documents, while the court order only to produce one relevant document instead of all other irrelevant documents- is valid – vol.5-177.

6. Or.7, rule11 – barred by limitation is a mixed question of law and fact- can not be decided at interim stage-vol 5-167.

7. Or.14, rule2 – territorial jurisdiction is also a mixed question of law and facts, can not be decided as preliminary issue- vol 5.- 37.

8. or.39, rule 1 and 2 – interim mandatory injunction , for removing sugar cane crop raised in the path- the defendants pleaded that there is another rash, which the plaintiff denied- is a question to be decided and then no mandatory injunction can not be granted pending the suit- vol.5-95.

9. evidence act sec.45- merely because, contemporary of signature is not available, the petition can not be dismissed as the exparte can find out the same including variances of signature and other required things –vol.5-113.