Smt. Alakuntla Swarnalatha

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IN THE COURT OF THE VII-ADDITIONAL JUNIOR CIVIL JUDGE, WARANGAL.

Tuesday, this the 31st day of July, 2018.

Present: Smt. A. Swarnalatha, VII-Addl. Junior Civil Judge, Warangal.

O.S. No. 139 OF 2014

B E T W E E N:

Repalle Sreenadh, S/o. Narsimha Swamy, Age: 52 years, Occu: Business, R/o. H.No.3-14-136, Yadava Nagar, Hanamkonda, Warangal Urban District. . . . Plaintiff

A N D

Tula Rajender, S/o. Rajaiah, Age: 42 years, Occu: Govt. Employee, R/o. Jangedu village, Bhupalpally Mandal, Warangal District. . . . Defendant

This suit is coming up before me on this dayfor final hearing in the presence of Sri G. Vidyasagar reddy, Advocate for the Plaintiff and Sri S. Sunil, Advocate for Defendant, after hearing and on perusing the material on record and having been stood over for consideration till this day, this Court delivered the following:

:: J U D G M E N T ::

1. This suit is filed seeking permanent injunction restraining the defendants and their yes-men or any person or persons acting on their behalf from interfering into the peaceful possession and enjoyment of the Plaintiff over the suit schedule property and for costs of the suit.

2. Brief facts of the plaint are as follows:

The plaintiff is the owner and possessor of open plot bearing No.8 to an extent of 267 sq. yards in Sy.No.1242 and 1243 situated at Madireddy kunta,

Ganeshnagar, Hanamkonda, having purchased from one Mohd. Abdul Rasheed under registered sale deed, dt. 4.2.2014 vide Doc.No. 688/2014. The vendor of the plaintiff purchased from A. Yadagiri erstwhile owner on 19-3-1999 under a

Notarized agreement of sale duly impounded through Revenue Divisional officer on 9-1-2004 vide proceedings No. A/4381/2004. Since then plaintiff is in possession and enjoyment of the suit plot which is bounded with compound walls on three sides constructed by the adjacent house owners. The defendant is a stranger having no right interfering into the possession and enjoyment of the 2 plaintiff over the suit plot by encroaching the same. In the second week of

February, 2014, when the defendant along with unsocial elements came over suit plot, the plaintiff complained to the police, Hanamkonda, for which the defendant assured before the police that he would not interfere further. Whereas the defendant on 2-3-2014 at about 11.00 am tried to dig trenches towards north of the suit plot, for which the plaintiff with the assistance of adjacent house owners prevented the defendant while leaving the defendant threatened that he would come again and dispossess the plaintiff from the suit plot. Hence the suit.

3. The defendant filed written statement denying the plaint averments by submitting that he is the owner and possessor of open plot no.5 in item no.5 to an extent of 267 sq.yards in Sy.No.1242 and 1243 of Hanamkonda revenue village situated at New Raipura, Ganeshnagar, Hanamkonda having purchased under registered sale deed bearing doc.no.9602/2010, dt. 24-12-2010 from its erstwhile owner and possessor Annamaneni Rajamma, W/o. Bala Raju through her agreement of sale cum GPA holder Kola Anand @ Anandam vide registered document no.2461/2010, dt. 29-3-2010 and since then he is in possession of the same. Later, for the purpose of constructing a house in his plot, the defendant has dug a bore well and an electricity connection is obtained vide service no.

12287 – 100633. The said Annamaneni Rajamma acquired the property as per the terms of compromise in O.S.No.126/2000 on the file of II-Addl. Senior Civil

Judge, at Warangal which was decreed on 15-09-2008 and the vendors vendor

of the plaintiff never disclosed that he sold any piece of land to the vendor of the plaintiff. The plaintiff has approached the court by suppressing the real facts and created the documents in order to grab the plot of the defendant. Hence prayed to dismiss the suit with exemplary costs.

4. Basing on the pleadings, my predecessor has framed the following issues:

1. Whether the plaintiff is in lawful possession of suit schedule property as on the date of the suit?

2. Whether the defendant herein causing interference to such possession of the plaintiff over the suit schedule property?

3. If so, whether the plaintiff herein entitled to relief of permanent injunction against the defendant as prayed for?

4. To what relief?

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5. Heard the learned counsel for either side. Perused the material on record.

6. During the trial plaintiff himself got examined as PW1 and got marked

Exs.A1 to A9. A third party S.Venkataiah got examined as PW2. On the other hand, defendant himself got examined as DW1 and got marked Exs.B1 to B7 and Ex.A10.

7. Issue Nos.1 and 2: To substantiate the case of plaintiff in his chief affidavit as PW1 reiterated entire contents of the plaint and relied upon Exs.A1 to

A9. Ex.A1 is the original registered sale deed Doc.No.688/2014, dated 04.02.2014. Ex.A2 is the letter addressed by Electrical division, Warangal dated 10.02.2015. Ex.A3 is the property tax assessment dated 09.02.2015. Ex.A4 is the ownership certificate. Ex.A5 is the Receipt dated 04.08.2014. Ex.A6 is the

Special Notice with regard to property tax. Ex.A7 is the letter addressed by

Assst. Engineer to divisional engineer, Warangal, dated 18.07.2014. Ex.A8 is the Notice dated 18.04.2015 issued by Municipal officer. Ex.A9 is the Receipt

dated 15.02.2014 by Sri Sai Venkateshwara Bore Wells.

On the other hand the defendant to prove his contentions in his chief affidavit as DW1 reiterated entire contents of the written statement and relied upon Exs.B1 to B7 and Ex.A10, i.e., Ex.B1 is the original sale deed vide

Doc.No.9602/2010 dated 24.12.2010. Ex.B2 is the CC of Registered Sale-cum-

GPA vide document No.2461/2010 dated 29.03.2010, Ex.B3 is the Receipt dated 30.09.2013 by Venkateswara Bore Wells. Ex.B4 is the Bunch of Electricity Bills and Receipts by NPDCL. Ex.B5 is the CC of WS in OS.No.675/2009. Ex.B6 is the CC of Order dated 16.09.2014 in OS.No.675/2009. Ex.B7 is the CC of

Agreement of Sale dated 19.03.1999, and Ex.A10 is the photos (6) with CD.

8. It is the case of PW1 that he purchased the suit schedule property from one Md.Abdul Rasheed through registered sale deed under Ex.A1 who in turn purchased the same from one A.Yadagiri under Notarized Agreement of Sale which was impounded, thus he is in possession and enjoyment of the suit 4 schedule property where the defendant interfered with his possession over the same. To substantiate his case, the plaintiff was examined as PW1.

a) PW1, during his cross-examination, deposed that the suit schedule property is an open plot. His vendor by name Abdul Rasheed acquired the same through sale agreement and subsequently impounded it and does not know whether any suit was filed by his vendor/Abdul Rasheed against his vendor for specific performance of sale and the same was dismissed by the Court. PW1 further admitted that he has filed Exs.A2 to A9 pertains to the transactions that took place after filing this suit. He dug the bore well to an extent of 100 feets.

He is the Ex-councilor of Municipal Corporation, Warangal. The meter bearing number SC.No.12287/100633 Category-I pertaining to Tula Rajender has been fixed to H.No.3-4-758/28 of T.Ramesh’s bathroom and earlier it was affixed to the current pole No.RPH 26/5 and later removed from there and affixed to the house of Ramesh. Further admitted that he has not informed to the Municipal authorities with regard to this pending suit while obtaining the meeseva documents from the concerned. It is further deposed that he did not secure the agreement of sale through which his vendor purchased the suit schedule property, he does not know the O.S.No.675/2009, filed by his vendor Rasheed for Specific Performance of Agreement of Sale against his vendor which was dismissed.

b) Jakkula Venkataiah, a third party, who is examined as PW2 to support the case of PW1, during the cross-examination, he deposed that he has not filed any document in the court to show that he is residing in H.No.3-4-758/2, ganesh

Nagar, Madireddykunta, Hanamkonda. He sold the house bearing H.No.3-4- 758/2 to one Rangaiah about (12) years back. PW2 admitted that the plaintiff worked as Municipal Corporator and he does not know how many plots are there in between his house and the plaintiff’s plot No.8, and the Plot No.8 is a vacant plot. He does not know the date on which the alleged galata took place at the suit schedule property. Abdul Rasheed sold out the suit schedule property to the plaintiff at about (12) years back who purchased the same from one Yadagiri. He 5 knows that the suit schedule property belongs to Yadagiri. The plaintiff purchased the suit schedule property about twelve years back.

9. From the above evidence, it is observed that PW1 is an Ex-councilor of

Municipal Corporation, Warangal who purchased suit land from Abdul Rasheed through agreement of sale which was impounded subsequently, but he does not know whether any suit is filed by his vendor and pending or disposed off. Except the Ex.A1 the remaining documentary evidence was obtained after filing of the suit to support his case placed before the court. Further, PW1 categorically admitted that the Meter bearing SC.No.12287/100633 pertains to the defendant which was fixed to the current Pole No.RPH26/5, later it was removed from there and fixed to the house of T.Ramesh, and the PW2 also tried to corroborate his evidence with that of PW1. The evidence of plaintiff is not establishing the lawful right of the vendor and his vendors vendor to transfer the same to the plaintiff and the interference of the defendant with such right and possession.

10. On the other hand, it is the case of defendant that he purchased the plot

No.5 in suit survey number from one Annamaneni Rajamma through her GPA

Holder and he is in possession and dug a Bore well, and also obtained electricity connection. To support his case, the defendant was examined as DW1 and during his cross-examination he deposed that he purchased Plot No.5 under

Ex.B1 in Sy.No.1242/1243. It is admitted that he has no rights on plot No.8 and he does not know particularly how many plots were carved out by his vendor. But as per his documents, it is mentioned as total six plots. Further deposed that till today he is paying the bills of service connection No.12287-100633 in Ex.B4

before filing the present suit and he does not know pending suit in

O.S.No.126/2000 on the file of II-Addl. Senior Civil Judge’s Court, Warangal.

Further deposed that In the year 2014 he came to know about Ex.B7 after filing the present suit, and verified about the execution of said Ex.B7, further deposed that he came to know about the demise of Yadagiri died in the year 2003 or 2004 who is the vendor and Pattadar of Ex.B7. Though the DW1 was cross-examined 6 at length, nothing was elicited by the counsel for the plaintiff in support of his case and the interference with his possession as alleged.

11. On perusal of the documentary evidence and the oral evidence of both the parties, and in view of the above discussion, it is observed in Ex.A1 it shows that the sale deed in favour of the plaintiff executed by Rasheed and there is no mention about from whom his vendor purchased the same under what transaction. Exs.A2 to A9 are post suit documents, hence not considered, however on perusal of the said documents which were obtained from the

Municipal authorities, it shows that Ex.A2 is in favour of the defendant case,

Exs.A3 to A6 show that these documents are issued in the name of PW1 bearing with House No.3-4-762/2/B pertains to property tax assessment where as the plaintiff case is for an open plot. Ex.A7 is the photo copy of NPDCL letter pertains to defendant. Ex.A8, issued by Municipal Corporation of Warangal in the name of Plaintiff, shows the open plot of the plaintiff having with House bearing No.3-4-762/2/B. Ex.A9 is the payment receipt in original and duplicate for bore well, which creates a doubt that is the document is genuine or created.

As in general only one receipt should be given to the party paying the amount and the counterfoil receipt shall not be given to the parties along with the original.

12. Whereas on the other hand Ex.B1 shows the vendor of the defendant executed the property in favour of defendant, in which it is mentioned that through her GPA Holder the vendor sold the property in favour of the defendant.

Ex.B2 is the Agreement of Sale-cum-GPA in favour of K.Anand, executed by the vendor of the defendant. Ex.B3 is the payment receipt of Bore Well in the name of defendant. Ex.B4 is the Bunch of current bills with payment slips in the name of defendant, shows that the pole number RPH-36/5 as per the case of defendant as he obtained the current meter and paying the consumption charges regularly since before filing of the suit. Exs.B5 and B6 show written statement and decree for default in O.S.No.675/2009 filed by Rasheed against his vendor

Hymavathi W/o. Yadagiri which was dismissed for default. Ex.B7 is the link 7 document of Ex.A1 which shows vendor of the plaintiff Rasheed purchased property from one Annamaneni Yadagiri under an agreement of sale.

13. As can be seen from the above documentary evidence that vendor of the plaintiff Rasheed purchased the property from Annamaneni Yadagiri, later he filed suit against his wife Annamaneni Hymavathi for specific performance of the agreement entered with her husband which was dismissed for default under

Ex.B6. Therefore, the agreement of sale entered into by the vendor of the plaintiff Rasheed was dismissed for default, as such he does not acquire any rights over the property under Ex.B7 and during the pendency of

OS.No.675/2009 he sold out the subject matter to Rasheed. When the vendor of

the plaintiff not possess any right over the property, he has no right to alienate the same in favour of the plaintiff under Ex.A1, as such not mentioned any averments that how he acquired the property and under what transaction. Thus the plaintiff also not acquired any lawful rights or possession over the same.

14. However, during the arguments, in support of the case of plaintiff, the counsel for plaintiff filed case laws relying on as follows:

i) AIR 2012 SC 1727 – Mariamargarida Sequeria Fernandes and Ors. Vs. Erasmo Jack De Dequera (died) through Lrs.,

The above case law says about the administration of duties of the court.

ii) AIR 2004 SC 4609 – Ramegouda (died) by Lrs. Vs. M.Varadappa

Naidu (died) by Lrs. and another.

The above case law says that persons in peaceful possession is entitled to retain possession.

iii) 1989 (2) APCJ 77 (SC) – Krishnaram Mahale (died) by his Lrs. Vs. Mrs. Shobha Venkat Rao.

The above case law says that the occupant in possession canot be dispossed by the owner of the property except by recourse to law.

iv) AIR 1972 SC 2299 – M.Kallappasetty Vs. M.V. Laxminarayana Rao

The above case law says, the plaintiff in possession on the strength of such possession cannot resist the defendant who has no better title than himself.

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v) 2014 (5) ALT 56 – P.Laxminarayana and anr. Vs. Madhubabu and others.

The above case law says that it is the duty of the court to see that whether the plaintiff is in possession and whether defendant threatening to dispossess the plaintiff from such possession.

vi) 2000 (3) ALT 433 – Kondaveeti Francis Vs. M.Ludramma and others.

The above case law says that parties bound by pleadings and evidence, beyond that or contrary to pleadings cannot be looked into.

vii) 1985 (1) ALT 1 – Potturi Saraswathi Vs. Vallabhaneni Veerabhadra

Rao

The above case law says that the real owner cannot take forceful possession from the trespassers.

Viii) AIR 1988 Bombay 296 – Laxman Pandu Khadke Vs. Pandarinath

Purushotham

In the above case law says that person entered into possession of property lawfully on basis of agreement of sale can seek injunction.

ix) 2017 (5) ALT 630 – J.Venkateshwar Rao Vs. Smt. Vijayalaxmi

The above case law says that burden of proof lies on defendant to prove the boundaries of his property claiming if different with plaintiff claim.

x) 2008 (1) ALT 430 – Alla Sheshu Kumar and another Vs. Alla Radhakrishna

The above case law says that true owner cannot evict the person in settled possession.

xi) CRP No.1544 OF 2018 of the Hon’ble High Court at Hyderabad, dated

09.03.2018.

The above case law says that it is for the defendant to establish through cogent evidence that property was validly purchased by them, if it is the main issue of the suit.

The facts and circumstances of the above case laws are different with the present case, however on perusal of the case laws it is observed that a person who entered into the property lawfully only be protected not the trespassers 9 without lawful possession, and the case laws Nos.ii to v and viii also says that person lawful and settled possession cannot be dispossessed forcefully by the real owner who entered into the property lawfully.

15. In the present case on hand, the over all evidence placed before the court, it is observed that the vendor of the plaintiff does not have right as he acquired from the agreement of sale under Ex.B7 and he filed the suit in O.S.No.675/2009 for specific performance against the original owners and during the pending suit he executed Ex.A1 in favour of the plaintiff herein having without right over the same which was dismissed for default, as can be seen from Exs.B5 and B6. As such, it is clear that under Ex.A1 the vendor of the plaintiff not transferred any lawful right to the plaintiff, hence the plaintiff does not have such rights over the suit property. Therefore, there is no hindrance to hold that the plaintiff is not in lawful possession in absence of how the vendor of the plaintiff under Ex.A1 got the property to transfer the same, which is important to grant relief of permanent injunction in a suit for injunction simplicitor. However, the plaintiff not even chose to file link document of Ex.A1 which is the basis of his claim (filed by the defendant under Ex.B7) and it is the duty of plaintiff to produce the same to prove his case, and the evidence of the plaintiff is hit by Exs.B4 to B7. Thus, the plaintiff failed to prove his claim through oral and documentary evidence i.e., from

Exs.A1 to A9. As such, the plaintiff is not entitled to decree as prayed for.

Hence, the issue Nos.1 and 2 are answered against the plaintiff.

16. Issue No.3: As the Issue Nos.1 and 2 are answered against the plaintiff, he is not entitled to relief of permanent injunction as prayed for.

17. Issue No.4: In the result, the suit is dismissed, however no costs.

(Typed to my dictation, corrected and pronounced by me in the Open Court on this the 31st day of July, 2018.)

Sd/-

VII ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs: For Defendants:

PW1: R. Sreenadh DW1: T.Rajender PW2: J. Venkataiah

EXHIBITS MARKED

For Plaintiffs:

Ex.A1: Original registered sale deed Doc.No.618/2014, dated 04.02.2014. Ex.A2: Letter addressed by Electrical division, Warangal dated 10.02.2015. Ex.A3: Property tax assessment dated 09.02.2015. Ex.A4: Ownership certificate. Ex.A5: Receipt dated 04.08.2014. Ex.A6: Special Notice with regard to property tax. Ex.A7: Letter addressed by Assst. Engineer to divisional engineer, Warangal, dated 18.07.2014. Ex.A8: Notice dated 18.04.2015 issued by Municipal officer. Ex.A9: Receipt dated 15.02.2014 by Sri Sai Venkateshwara Bore Wells. Ex.A10: Photos (6) with CD.

For Defendants:

Ex.B1: Original sale deed vide Doc.No.9602/2010 dated 24.12.2010. Ex.B2: CC of Registered Sale-cum-GPA dated 29.03.2010. Ex.B3: Receipt dated 30.09.2013 by Venkateswara Bore Wells. Ex.B4: Bunch of Electricity Bills and Receipts by NPDCLA. Ex.B5: CC of WS in OS.No.675/2009. Ex.B6: CC of Order dated 16.09.2014 in OS.No.675/2009. Ex.B7: CC of Agreement of Sale dated 19.03.1999.

Sd/-

VII ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

O.S.No. 776 of 2011 1 Dt: 30.12.2019

IN THE COURT OF THE VII-ADDITIONAL JUNIOR CIVIL JUDGE

WARANGAL

Monday, this the 30th day of December, 2019

Present: Smt. A. Swarnalatha, VII-Addl. Junior Civil Judge, Warangal.

O.S.No.776 of 2011

B E T W E E N:

1. Kasojula Pullaiah (died) per L.Rs.,

2. Kasojula Shanthamma, W/o:Late Pullaiah, Age: 47 yrs, Occu:Household, R/o: Paidipally village, Hanamkonda mandal, Warangal district. (Amended as per order vide I.A.No.361/2016, Dt. 1.9.2016) … Plaintiff A N D

1. Kasojula Ranjith, S/o: Laxminarayana, Age: 26 yrs, Occu:Student, R/o: Paidipally village, Hanamkonda mandal, Warangal district.

2. Kasojula Laxminarayana, S/o:Late Rajaveeru, Age: 65 yrs, Occu:Business, R/o: Paidipally village, Hanamkonda mandal, Warangal district.

... Defendantf

This suit is coming up before me on 02.12.2019 for fnal hearing in the presence of Sri Y. Nagender,Advocate for the Plaintif and of Sri L.

Jalender Reddy,Advocate for the Defendants. Upon perusing the material on record and after hearing and having been stood over for consideration till this day, this Court delivered the following:

:: JUDGMENT ::

1.This suit is fled seeking permanent Injunction restraining the defendants their family members, agents work men etc., from interfering with peaceful possession and enjoyment of the plaintif over the suit schedule property and for cost.

2. The Suit Schedule property if : Open plot to an extent of 245 Sq.yards in Sy.No.1223 situated at Paidipally village, Hanamkonda mandal, Warangal district bounded with :

East- Land of Veeragani Chandramouli and Kokerra Yellaiah,

West-30 feet road,

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North-Land of Goney Ravi,

South-10 feet road.

3. Brief avermentf of the Plaint are af followf:Plaintif

No.1 fled the main suit stating that he has purchased suit schedule plot to an extent of 245 Sq.yards in Sy.No.1223 situated at Paidipally village

Hanamkonda mandal through a simple sale deed on 2.1.1992 from its owner Sri Mulukoji Rajamouli since then in possession and enjoyment over the suit schedule property. In pursuance of purchase he intended to construct the basement around the suit plot thus clearing the bushes by engaging labour on 7.7.2011. Meanwhile defendant No.1 and 2 being the strangers to suit schedule property with an intent to grab the same tried to disturb the work for which Plaintif No.1 could resist their illegal acts with the help of neighbours and family members. Again ion 11.7.2011 defendants came to the suit land and repeated their acts and plaintif No.1 again resisted the same with the help of neighbors and his family members.

The defendants while leaving the suit plot have openly declared that under any circumstances they would come again and dispossess the plaintif No.1 and 2 from the suit schedule property. Hence the suit seeking permanent injunction.

4. Per Contra defendant No.1 and 2 got fled written statement denying the entire plaint averments by submitting that defendant No.1 is the son of defendant No.2 . Defendant No.2 is owner and possessor of land to an extent of 2 guntas 2 annas out of Sy.No1223 situated at Paidipally village having purchased the same through simple sale deed dt 14.2.1991 from its original owner and possessor from Mulukoju Rajamouli since then in possession and enjoyment over the said land and defendant No.2 also erected a hut and blacksmith kolimi and started blacksmith work since 13 years. Further, constructed a house therein towards eastern side of the said

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land and the kolimi is situated towards road side i.e. western side of the plot. The Grama panchayath have also allotted number to his house i.e. 1- 160 and defendant No.2 is regularly paying property tax. He also got electricity connection vide service No.466 and living with his family alongwith defendant No.1 in the said land. Further, it is the defendants contention that there is no open plot available as described in the suit schedule property. It is with an intent to grab the defendants land, plaintif had created a document for the purpose of fling suit and moreover mere suit for injunction is not maintainable without declaration of title. Therefore prayed to dismiss the suit with cost.

5.Basing on the above pleadings my predecessor has framed the following issues.

i) Whether the plaintif No.1 waf in poffeffion and enjoyment

of the fuit fchedule property af on the date of flinn of

the fuit.

ii) Whether the plaintif No.2 if entitled for the relief of

permanent injunction af prayed for.

iii) To what relief?

6.During the trial to substantiate suit claim plaintif No.2 got herself examined as PW.1 and Ex.A1 was marked through her. Plaintif No.2 to 4 also got examined on behalf of the plaintifs. On the other hand the defendant No.1 was examined himself as DW.1 and got marked Ex.B1. DW.2 also got examined on the behalf of the defendants.

7.Heard the learned counsels for either side. Perused the material on record.

8.Issue No.1 and 2 taken together to avoid repetition and for better appreciation of evidence:

9.It is a case of plaintif No.1 that he is the owner and possessor of suit schedule property having purchased under a simple sale deed, dt.

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2.1.1992. However, during the pending suit plaintif No.1 died, therefore his wife plaintif No.2 was added through I.A.No.361/2016, dt:1-9-2016. On the other hand the defendant contention is they are the owner and possessor of open plot to an extent of 245 sq.yards in Sy.No.1223 situated at Paidipally village having purchased under simple sale deed, dt. 2.1.1992. For seeking grant of temporary injunction plaintif has to prove his prima-facie possession over the schedule property as initial burden of proof lies on him.

10.To substantiate the case PW-1 wife of plaintif No.1 retreated entire contents of the plaint and relied upon Ex.A1 Original impounded sale deed with possession dt 2.1.1992.

During the cross examination PW.1 has deposed that plaintif

No.1 worked as government teacher during his life time her husband purchased the suit property under Ex.A1 and he has seen the said document in the year 1995 before fling the suit. The present suit land is an open plot. As per Ex.A1 signature of Rajamouli is mentioned with dt:

23.12.1991. Defendant No.2 is residing in the same locality after the three plots of suit land and he is working as blacksmith by erecting a kolimi in his land . Witness denied the suggestion that there is a hut in the suit land belongs to Laxminarayan. However deposed that above said

Laxminarayana is having a house in the said land i.e. his land. Further deposed that there is a small tiled house situated towards the eastern side in the suit schedule property and house number is allotted along with electricity connection vide 795. Further PW.1 admitted that it is in the name of K.Veeraiah who is her father in law and it is situated at about ½ forlong away to the suit schedule property. PW.1 deposed that the plaintif No.1 and 2 are own brothers during the cross examination. At present the suit property is not in the possession of anyone and they have fled a police complaint against the defendants for their interference with their right and

O.S.No. 776 of 2011 5 Dt: 30.12.2019

possession over schedule property. Witness denied the suggestion that they have not sold suit property or mortgage to the Neelam Srinivas immediately deposed I have mortgage the suit schedule property to Neelam Srinivas to an amount of Rs. 6 lakh after the demise of her husband and they have not executed any written document for the said transaction.

11.PW.2 a third party to the suit property deposed evidence during the cross examination that the present suit is fled by the defendants against the plaintifs and admitted to restrain the plaintif from interfering with the hut and kolimi of the defendants, they got fled the suit. The said hut is having electricity connection. Since 20 years the said Kolimi is running by the Laxminarayana. Further, she deposed that the distance between her house and defendants Kolimi is not so far and she know there were disputes between suit parties since 4 years in respect of possession of

Laxminarayana.

12.PW.3 another third party to the suit deposed that the suit property was purchased by husband of Shanthamma/PW-1 at about 20 years back during his life time. Again the witness deposed that he donot know how the PW-1 acquired the suit land to a suggestion given by the counsel for defendant. Further he deposed that plaintifs are residing in their old house which is far from a half mile to the suit property and there is a kolimi at the house of plaintif. The said 2½ gts land is an open plot. Since two years parties to the suit are having disputes in respect of suit property.

It is also deposed by the witness that defendant is residing adjacent of the plaintifs house towards northern side. Further witness admitted that

Laxminarayana is having house number and electricity connection for his property.

13.PW.4 is also another third party deposed evidence by admitting that his chief afdavit was got prepared by plaintif through her counsel.

O.S.No. 776 of 2011 6 Dt: 30.12.2019

However he know defendant no.1 and 2 as they are Kammari professionals and in their house they have kammari kolimi. He donot know when plaintif no.1 demised. The new house of the plaintif situated near the agriculture farm and they are residing therein since 8 to 10 years. This witness denied the suggestion that suit property is an open plot but he deposed that there is a house towards its eastern side. There is no electricity connection to the said house and there is no Kammari kolimi also in the suit land. Further, since 7 years, the parties to the suit are having land disputes. Further he has also denied the suggestion that vendor of the plaintif sold away his property to plaintif and they are never in possession of suit schedule property.

14.To disprove the suit of the plaintifs, DW.1 son of Laxminarayana reiterated entire contents of his chief afdavit by denying the case of PW-1 and relied upon Ex.B1 i.e. 10 photographs with CD showing a hut and deposed evidence during the cross examination that they are residing in a hut as shown in Ex.B-1 and by running a blacksmith kolimi through which they are working for their livelihood as contended. During the cross examination witness admitted that he did not mention about the total square yards in which his father had constructed their house in his chief afdavit and simply mentioned house number 1-160 without its location.

Further deposed that his father has not fled any documents basing on which he purchased property in the year 1992. However, after purchase of suit property they have constructed their house and obtained electricity connection but he donot know another electricity connection vide no.795 which was granted in the year 1992. Further, he deposed that by the time of purchase of suit property he was about 2 years old and he got knowledge of the suit property and its purchase by his father through his junior paternal uncle/deceased plaintif no.1.

O.S.No. 776 of 2011 7 Dt: 30.12.2019

15.DW.2, third party to the suit deposed evidence that the extent of suit property is 2 gts 2 anas and defendant no.2 is the owner of the suit property having purchased in the year 1992 from one Ramaiah, he has seen the said transaction document as he stood one of the witnesses. However, on confrontation of Ex.A-1 this witness identifed the name of Komuraiah who is the father of Laxminarayana and denied the suggestion that as per his chief afdavit there is a house towards eastern side of suit land.

16.On perusal of entire evidence of both sides, it show that deceased/plaintif no.1 and defendant no.2 are own brothers. Plaintif no.1 purchased property under Ex.A-1 but there is no averment that how the vendor of Ex.A-1 acquired the property to sold out the same to plaintif no.1 without which it cannot be said that plaintif acquired the legal right over the property under Ex.A-1. Moreover PW-1 clearly deposed evidence that her husband/deceased plaintif no.1 purchased suit property in the year 1992 and she came to know about the said document in the year 1995 and

before fling the present suit only. The evidence of PW-2 to 4 not supported

the case of plaintifs. As it is not revealing the possession of plaintif over suit property and the evidence of PW-2 show that he do not know who fled suit against whom, moreover his evidence is supporting to both the parties.

Therefore not supported the case of plaintifs. PW-3 evidence is inconsistent with his own evidence that plaintif no.1 purchased suit property and being the wife of PW-1, how she acquired the same was not known to him. PW-4 evidence is totally inconsistent with the evidence of PW-1.

17.Both the parties have fled written arguments:

On perusal of the plaintif written arguments, the counsel stated that defendant might have the house which is not belongs to the suit schedule property and admitted that there is no dispute with regard to the vendor of the both parties i.e., Mulkoji Rajamouli and defendant did not fle

O.S.No. 776 of 2011 8 Dt: 30.12.2019

any documentary proof to support their contention that they have purchased the property in the year 1992 as plaintif depended only under

Ex.A-1 which is an impounded document. However, it is not the case of defendant to disprove his case as the suit is fled by plaintifs on whom the initial burden of proof lies on that to establish their possession over suit property. To this aspect there is no documentary evidence except Ex.A-1 which is an impounded simple sale deed from which no rights be transferred as per section 17 of the Indian Registration Act but it is only treated as collateral purpose even though nothing was proved in favour of the plaintif in absence of how the vendor of the plaintif no.1 got the right to execute the said document in his favour, to this aspect also there is no averment in

Ex.A-1. Thus, it is held that no legal rights were transferred basing on Ex.A-1 in favour of plaintifs 1 and 2 and to prove their possession plaintifs not even placed any scrap of paper to ascertain that plaintif are in possession over suit property as on the date of fling suit. On the other hand the written arguments of the defendants show that even the plaintifs have failed to prove the identity of the suit property as per their contention even without having possession over the suit schedule property.

18. Therefore, nothing was elicited in favour of the plaintifs with regard to the possession over suit schedule property which is necessary to prove for grant of permanent injunction and only on the basis of impounded document, one cannot acquire rights through such transaction as it is not registered document and it is to be used only for collateral purpose. More over plaintifs failed to produce the evidence to establish their possession over the suit schedule property. As such PW-1 failed to prove their possession over suit property basing on the strength of Ex.A-1 only. PW-1 failed to locate the suit property during the cross examination as the defendant could able to prove the existence of Kammari kolimi in their

O.S.No. 776 of 2011 9 Dt: 30.12.2019

property.

19.Inview of the above discussion on failure to establish the possession of the plaintifs over suit schedule property this court not inclined to grant relief of permanent injunciton and that point is answered against the plaintif.

20.In the result, the suit is dismissed without cost.

(Dictated to the Stenographer after his transcription, corrected and pronounced by me in the Open Court on this the 30th day of December, 2019)

VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:

PW-1: K. Shanthamma

PW-2: K. Subhadra

PW-3: Jannu Chinny

PW-4:V. Vijay

FOR DEFENDANT:

DW1- K. Ranjith

DW2- E. Ramesh

EXHIBITS MARKED

FOR PLAINTIFF:

Ex.A1 is Original impounded sale deed with possession dt 2.1.1992.

FOR DEFENDANTf

Ex.B1 is 10 photographs with CD.

VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL

O.S.No. 776 of 2011 10 Dt: 30.12.2019

1

IN THE COURT OF THE VII-ADDITIONAL JUNIOR CIVIL JUDGE,

WARANGAL.

Tuesday, this the 31st day of July, 2018.

Present: Smt. A. Swarnalatha, VII-Addl. Junior Civil Judge, Warangal.

O.S. No. 75 OF 2009

B E T W E E N:

Smt. Angadi Lachamma, W/o. Yellaiah, Age: 45 years, Occu: Household, R/o. H.No.4-140/1, Namiligonda village, Ghanpur (Stn.) Mandal, Warangal district. . . . Plaintiff A N D

Smt. Devara Susheela, W/o. Saraiah, Age: 40 years, Occu: Household, R/o. Tharalapally village, Hanamkonda Mandal, Warangal district. . . . Defendant

This suit is coming up before me on 31.07.2018for final hearing in the presence of Sri R. Ananda Rao, Advocate for the Plaintiff and of Sri Ch. Chidambarnath, Advocate for the Defendant, after hearing and on perusing the material on record and having been stood over for consideration till this day, this Court delivered the following:

:: J U D G M E N T ::

1. This suit is filed seeking declaration of ownership of item Nos.1 and 2 and for permanent injunction restraining the defendant, her agents, workmen and all those persons acting on her behalf from in any way interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule properties, and for costs of the suit.

2. Brief facts of the plaint are as follows:

The plaintiff is the owner and possessor of agricultural land in Sy.Nos.351/A and 351/B to an extent of Ac. 0-21.3/4 guntas, situated at Tharalapally village, Hanamkonda

Mandal, Warangal district, which is shown as Item No.1 in the suit schedule property, and also to an extent of Ac. 0.08 guntas agricultural land in Survey Nos.348/B and 347/C situated at Tharalapally village as above mentioned which is shown an Item No.2 in the suit schedule property. The father of plaintiff blessed with one daughter i.e., plaintiff and three sons, but his three sons expired and due to old age ailments, the father of the plaintiff intended to alienate the Item No.1 of the suit schedule property, as such the 2 plaintiff came forward and purchased the same by paying the market value after negotiations with her father through a registered sale deed vide Document

No.3215/2007, dated 11.06.2007. Ever since, the plaintiff is in peaceful possession and enjoyment of the Item No.1 of the suit schedule property by cultivating the same.

Later, as there is no person to look after and render the services to the ailing father of the plaintiff, she rendered services with love and affection and providing all his needs and requirements. As such, out of love and affection, the father of plaintiff gifted the Item No.2 of the suit schedule property to the plaintiff through a registered gift settlement deed vide Document No.397/2008, dated 21.01.2008, and ever since the date of said gift settlement, the plaintiff is in peaceful possession and enjoyment of the Item

No.2 of the suit schedule property by cultivating the same.

The defendant one of the sister-in-laws i.e., one of brother’s wife of plaintiff, being the third person and no way concerned with the suit schedule properties, trying to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule properties, for which the plaintiff resisted her interference. On 20.01.2009, the defendant with some un-social elements came to the suit schedule property and tried to interfere in the suit property and her men tried to remove the boundary stones denying the title of the plaintiff, again with the help of her family members and adjacent owners, plaintiff resisted the same. While leaving the spot, the defendant and her men openly declared that under any circumstances, they will occupy the suit schedule property. On 21.01.2009, the plaintiff lodged a complaint before the Police, Madikonda against the defendant, for which police refused to receive the complaint as the dispute is civil in nature and advised to approach the civil court. Hence, this suit.

3. The defendant in her written statement admitted that the plaintiff is the only daughter of Mallaiah and the said Mallaiah had three sons namely Uppalaiah, Venkanna, and Saraiah, and contended that the plaintiff did not approach the Court with clean hands, and she filed the above suit in collusion with her father Mallaiah, to knock away the land of the defendant. It is averred that the defendant is the wife of brother of the 3 plaintiff by name Saraiah. Originally her father-in-law Mallaiah had no salable right over the Schedule - I and II of suit schedule property, hence no right could be ascertained by the plaintiff through her alleged sale deeds as mentioned above. In fact, the father of the plaintiff used to live with the defendant during the life time of the husband of the defendant who worked in Indian Railways at Kazipet. The marriage of the plaintiff was performed more than thirty years ago and she used to live with her husband at her in- laws society. The said Mallaiah is totally dependent on his son Saraiah who is the husband of the defendant, therefore the question of rendering services to the father-in- law of the defendant is denied. Further averred that the plaintiff submitted an application to the Tahasildar, Hanamkonda in the month of April, 2008 for mutation of her name in respect of schedule-1 and 2 properties. The defendant having came to know about the said application, submitted her objection before the District Collector, Warangal on 28.07.2008. After considering the same, the Tahasildar, Hanamkonda issued a memo

dated 27.08.2008 wherein it is specifically mentioned in 2nd para “that the daughter in law

of Sri Devara Mallaiah by name Smt Devara Susheela is in possession of above said properties i.e., item No.1 and 2 of suit schedule property and she is cultivating the said land”.

It is further submitted by the defendant that originally the item Nos.1 and 2 of the suit schedule property was purchased by her husband Saraiah about (18) years ago, by that time he was working in Railways at Kazipet. The husband of defendant purchased the said property from one Sri Marishetty Shivaiah who is the pattedar of the said property. Since the husband of defendant had love and affection towards his father, he purchased the said property in his father’s name i.e., Devara Mallaiah. The father of plaintiff i.e., Mallaiah is incapable to spend money to purchase the said property who do not have any income on his own. Hence, the defendant prays to dismiss the suit with costs.

4. During the trial plaintiff herself was examined as PW1 and got marked Exs.A1 to

A6. Plaintiff husband was examined as PW2. On the other hand, defendant herself was 4 examined as DW1 and got marked Ex.B1. One third party a villager of the defendant examined as DW2.

5. Heard the learned counsel for either side. Perused the material on record.

6. My predecessor has framed the following issues:

1) Whether the plaintiff is entitled for declaration as prayed for?

2) Whether the plaintiff is entitled for consequential relief of permanent injunction as prayed for?

3) Whether the suit is bad for non-joinder of necessary parties?

4) Whether the suit is barred by limitation?

5) To what relief?

7. Issue Nos.1 and 2: To prove her case, the plaintiff as PW1 reiterated entire contents of the plaint in her chief affidavit and relied upon Exs.A1 to A6 i.e., Ex.A1 is the sale deed bearing Document No.3215/2007 dated 11.06.2007, Ex.A2 is the

Registered Gift Settlement deed, vide document No.397/2008, dated 11.06.2007,

Ex.A3 is the Pattadar Pass Book, Ex.A4 is the Pass Book, Ex.A5 is the MRO proceedings, dated 27.08.2008, and Ex.A6 is the valuation certificate. Ex.A1 shows PW1 husband purchased Item No.1 of suit schedule property and Ex.A2 shows father of the PW1 gifted Item No.2 property of suit schedule property to the defendant. Exs.A3 and A4 shows PW1 name was entered in revenue records.

Exs.5 and 6 are market value assessment issued by concerned authority for suit schedule property items.

7 (a). PW1, during cross-examination, deposed that her parents have three sons. Saraiah is the husband of defendant. Uppalaiah died unmarried. Samba is wife of Venkataiah. The said Samba and Venkataiah who have one daughter by name Venkataratnam. The defendant has a daughter. Her second brother

Venkataiah died in a train accident, who worked in Railways. His wife Samba was given employment in Railways on compassionate grounds. The husband of the 5 defendant i.e., Saraiah committed suicide about eight years back. Her mother

Yellamma predeceased to her brother Saraiah. Her parents village is Tharalapally.

Her marriage with Yellaiah was performed about (40) years back. Her in-laws village is Namiligonda of Station Ghanpur Mandal. Her husband has agricultural land measuring about an acre at Namiligonda village. Her husband purchased the said land after the birth of her daughter from one Ramachandraiah. Her father died about four months back.

The PW1 further deposed in her cross-examination that by the date of filing of this suit, the defendant was staying in the house situated at Tharalapally belonging to his father. The defendant is residing at Tharalapally now. Her father was in due of Rs.40,000/- to her. Her father indebted to others and to clear the said debts he sold item No.1 of the suit property. She does not know from whom her father borrowed the amounts. She paid Rs.40,000/- to her father as consideration.

After receipt of the said amount, her father executed Ex.A1 sale deed in her favour.

Her father brought the witnesses to Ex.A1 sale deed, but she does not know the said witnesses. She made an application to Tahsildar to mutate her name as owner in the Revenue records. The defendant filed objections before the Tahsildar. Her father appeared before the Tahsildar and gave a statement to the effect that he sold the suit schedule lands to her. She does not know her father has cancelled Ex.A2 through a registered cancellation deed dated 29.09.2010. Her father filed a suit to cancel Ex.A1 sale deed and she has received summons in the said suit. She further deposed that one Madishetty Shivaiah was the Pattedar of suit schedule lands.

7(b). PW2-Angadi yellaiah, husband of PW1, in his cross-examination, deposed that Mallaiah has three sons and one daughter. One Samba is wife of Venkataiah.

They were blessed with a daughter by name Venkataratnam. The defendant is wife of Saraiah. His father-in-law died at Tharalapally village. The defendant performed the obsequies of his father-in-law. The daughrters-in-law of his father-in-law were not aware about the execution of Ex.A2 by his father-in-law. His father-in-law did not inform his daughters-in-law before executing Ex.A2 in favour of the plaintiff.

6

Plaintiff also did not informed the wives of her brothers about her obtaining Ex.A2 from her father. Exs.A1 and A2 were executed at a time. The plaintiff purchased item No.1 of the suit schedule property for Rs.40,000/-. The daughters-in-law of his father-in-law do not know about the sale of item No.1 of the suit schedule property in favour of the plaintiff. The plaintiff also did not informed the wives of her brother that she has purchased item No.1 of the suit schedule property from her father.

They have no proof to show that they were having Rs.40,000/- with them as on the date of execution of Ex.A1.

8. On the other hand defendant to prove her case, examined as DW1 and reiterated entire contents of the written statement in her chief affidavit and relied upon Ex.B1-Revocation of Gift Settlement Deed executed by Devara Mallaiah dated 29.09.2010, and during her cross-examination admitted the contents of her chief affidavit, and the counsel for plaintiff failed to disprove the contentions raised by the defendant by examining DW1.

8(a). DW2-Munga Komuraiah, in his cross-examination, deposed that he knows

Devara Mallaiah since his childhood. Devara Mallaiah’s son is Devara Saraiah who was demised at about his 40 to 45 years age. D.Mallaiah had purchased his land nearby M.Shivaiah about 50 years back, and at that time Saraiah was working. The defendant is the wife of Saraiah. D.Mallaiah had given his some of land to the defendant through the Registered document, since then defendant is cultivating her land. D.Mallaiah gifted his property in the name of plaintiff, further witness adds that he gifted his property to his grand-daughter. He has not seen the above said gift documents, but he came to know about the same.

9. From the above evidence, it is observed that the PW1 could not able to establish that how he purchased Item No.1 under Ex.A1 as she simply deposed that at the time of purchase she sold out some of her jewellery with the help of her husband they purchased Item No.1 by paying Rs.40,000/-, and no specific proof 7 was placed before the court to prove it, except saying her father was indebted to others, and to clear the said debts the father of the plaintiff sold out the Item No.1 under Ex.A1 to PW1, and further the Item No.2 under Ex.A2 was gifted to PW1 by her father for her rendering services out of love and affection was also not proved according to law. As a rule if execution of gift deed is denied the burden of proof lies on claimant to prove its genuinity by calling the one of the attesters at least.

The PW1 not even chose to examine her father who executed Ex.A2 in her favour.

All these flaws of evidence shows that the plaintiff failed to prove her case, except the self serving statements no other evidence to prove the plaintiffs claim, and in the light of Ex.B1 and non-challenging of it Ex.A2 is presumed to be got executed under influence by the PW1 in her favour by Devara Mallaiah her father.

At this stage, this court relied upon a case law as follows:

2002 (1) ALT 466 (D.B.) - Sanjana Granites, Madras and another Vs.

Manduva Srinivasa Rao and others

In the above case, it was held that where truth and genuineness of a document is put in issue, burden of proving it, lies on party relying on it – no presumption can be drawn that all the registered documents are true and genuine –

Para-30.

10. In view of the above discussion the evidence on behalf of PW1 not supporting her case as she failed to prove the execution of Ex.A1 and A2, and failed to disprove the Ex.B1, and on failure of lawful possession of the suit properties i.e., Item Nos.1 and 2 that till filing of the suit, the defendant is cultivating the suit property and residing with Devara Mallaiah, shows PW1 is not in possession of the same. Hence, the Issue Nos.1 and 2 are answered against the plaintiff.

11. Issue Nos.3 and 4: To answer this question, there is no evidence on record that whether any necessary parties or proper parties are left out as neither the 8 defendant nor the plaintiff chose to bring them on record. The facts and circumstances of the case shows that suit is not barred by any limitation. Hence, the Issue Nos.3 and 4 are answered in favour of the plaintiff. Though these issues are answered in favour of the plaintiff, the main issues Nos.1 and 2 are answered against, hence the suit is liable to be dismissed.

12. Issue No.5: In the result, the suit is dismissed. However, no costs.

(Typed to my dictation, after his transcription, corrected and pronounced by me in the Open Court on this the 31st day of July, 2018.)

Sd/-

VII ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs: For Defendants:

PW1: A. Lachamma DW1: D.Susheela PW2: A. Yellaiah DW2: M.Komuraiah

EXHIBITS MARKED

For Plaintiffs:

Ex.A1: Sale deed bearing Document No.3215/2007 dated 11.06.2007. Ex.A2: Registered Gift Settlement deed, vide document No.397/2008,

dated 11.06.2007.

Ex.A3: Pattadar Pass Book. Ex.A4: Pass Book. Ex.A5: MRO proceedings, dated 27.08.2008. Ex.A6: Valuation certificate.

For Defendants:

Ex.B1: Revocation of Gift Settlement, Doc.No.5512/2010 dated 29.09.2010.

Sd/-

VII ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

Dt: 10-12-2019 1 C .C.No.1299/2019

IN THE COURT OF THE VII-ADDL. JUDICIAL FIRST CLASS MAGISTRATE:

WARANGAL

Present: Smt. A. Swarnalatha, VII- Addl. Judicial First Class Magistrate, Warangal.

Tuesday, this the 10th day of December, 2019

CALENDER CASE No. 1299 OF 2019

Between: The State of Telangana through the Inspector of Police, P.S. Hanamkonda. .… Complainant

AND

1. Shaik Rafeeq, S/o. Shaik Malik, Age: 32 years, Caste: Muslim, Occ: Cloth business, R/o. 66 Dabendra Chandra Dey road, Tangra, Kolkata, West Bengal.

2. Rokon Shaik, S/o. Nooruddin Shaik, Aged: 37 years, Caste: Muslim, Occ: Cloth Business, R/o. Bamangachi, Datapukur Police Station, North 24 Parganas district, Kolkata, West Bengal.

3. Ohidul Molla, S/o. Sharath Ali Molla, aged: 33 years, Caste: Muslim, Occ: Cloth business, R/o. Harwa, North 24 Parganas District, Kolkatta, West Bengal.

4. Jumroti Molla, S/o. Bill Lal Molla, Age: 26 years, Caste: Muslim, Occ: Cloth business, R/o. 66 Debendra Chandra Dey road, Tangra, Kolkatta, West Bengal.

...Accused

This case coming on 10.12.2019 for final hearing before me in the presence of learned Asst. Public Prosecutor for the State and of Sri. D.

Chandra Prakash Rao, Legal Aid counsel for the accused and the matter having stood over for consideration till this day, this Court delivered the following:

: : J U D G M E N T : :

1.The Sub-Inspector of Police, P.S. Hanamkonda laid the charge sheet against the Accused Nos.1 to 4 for the offences punishable u/Ss. 454 and 380 IPC in Cr. No.9/2019.

Dt: 10-12-2019 2 C .C.No.1299/2019

2. The case of the Prosecution in the brief is that:

On 15.01.2019 at 11.30 p.m., complainant/LW1 Borra Srujana lodged a complaint stating that her family members went to Fort Warangal to attend funeral of her grand-mother at about 12.30 p.m., on the same day and at about 9.00 p.m., when they returned back to home, she found the lock of main door was broke open and immediately she rushed into the bed room and found gold ornaments i.e., Kasulperu wt. 50 gts., gundla golusu, wt. 30 gras, vasantha Haram wg. 50 grams, necklace 30 gts, baby chain 10 grams, all worth of Rs.5,10,000/- were found missing and also all the household things were spread out herein and there in the house. Hence, the complaint. Basing on LW-10/Sampath Rao, Inspector of Police, Hanamkonda has registered a case in Cr.No. 09/2019 u/S. 454 and 380 I.P.C. Accordingly, he issued FIR and took up the investigation. He examined and recorded the statement of PW1, visited the scene of offence, drew a rough sketch of scene in the presence of Lws. 3 and 4. Later on 22.02.2019 LW9/Sadaiah, S.I. of

Police, Subedari arrested A1 and A2, remanded them to judicial custody.

Basing on that he recorded confession cum-scene of offence of panchanama in the presence of Lws. 5 and 6 and recorded the stolen property in presence of Lws. 7 and 8 and then arrested A-3 and A-4. After completion of entire investigation, he filed charge sheet. Hence, the charge.

3. Cognizance was taken for the offences U/Sec. 454 and 380 of I.P.C.

4. On the appearance of A1 to A4, copies required under

Section 207 of Cr.P.C., were furnished and they were examined U/Sec. 239 of

Cr.P.C. for the said offence by read over and explained to them in Telugu language, for which they pleaded not guilty and claimed to be tried. Thus, charges u/Secs.454 and 380 I.P.C. were framed against them.

Dt: 10-12-2019 3 C .C.No.1299/2019

5. The prosecution to bring out the guilt of the accused persons has examined Pws.1 to 6 and exhibited P-1 to P-8. The evidence of LW2/T.

Narender, LW4/T. Srikanth, LW.7/A. Sambaiah, LW8./A. Venugopal Reddy were given by the Learned APP.

6. The A1 to A4 were examined U/Sec.313 Cr.P.C. by explaining the incriminating evidence made against them in Telugu language, for which they denied the same and reported no defence evidence on their behalf.

7. Heard, the arguments on the other side perused the record.

8 . Now the point for consideration is:

“Whether the prosecution has proved the guilt of A1 to A4 beyond

all reasonable doubt to implicate them for the offences punishable

u/Ss. 454 and 380 of IPC?”

9. POINT: PW-1/B. Srujana is the defacto complainant, she deposed the evidence that she along with her family went to funeral ceremony of their grand mother at about 12.00 p.m., on 15.01.2019. On the same day at 9.00 p.m., when they returned back to home they found missing of gold ornaments, worth of Rs.5,10,000/-. On that she made a phone call to

No.100 and lodged a complaint to the police, Hanamkonda under Ex.P1. She has also took interim custody of the missing gold ornaments from the Court vide Crl.M.P.No. 93/2019, dated 13.06.2019. During the cross-examination she admitted that the police have did not have conduct any property identification parade while handing over M.O.1 to 5. Except this nothing was elicited against A-1 to A-4 as she made a complaint on coming to know that her gold ornaments committed theft by broke open the doors of her house in their absence.

Dt: 10-12-2019 4 C .C.No.1299/2019

10. PW.2/T. Ella Goud, panch witness of CDF deposed evidence that on 16.1.2019 about 11.00 am, police called him at 11.00 AM to go to complainant house at KUC Prem Nagar to conduct panchanama for offence of theft and in his presence the police prepared CDF panchanama under Ex.P-2 and he put his signature on the same after read over him. LW-4/T. Srikanth also present along with him and put his signature on the same. During the cross-examination witness deposed that he was at his home when the police called, except this nothing was elicited against A-1 to A-4 and not corroborating with the case of PW-1 with regard to the committing theft of what property at what place and about what time, etc., 11.PW-3/Syed Vaseem panch witness for confession cum seizure panchanama turned hos;tile and not supported the case of prosecution.

During the cross examination also nothing was elicited against A-1 and A-2 that he witnessed the confession made by the accused persons and the seizure and recovery of the stolen property by the police from their possession and he deposed when he went to police station for lodging complainant of his missing motor cycle, the police obtained his signatures and he admitted his signatures along with LW-6 on Ex.P-5 and P-6.

12.PW-4-Nawaz Pasha, panch witness for recovery cum seizure panchanama also turned hostile and nothing was elicited against A-1 to A-4.

During the cross examination made by APP, nothing was supported its case.

13.PW5/P. Sadaiah, Inspector of Police, Subedari deposed evidence that on 22.02.2019 he arrested A-1 and A-2 and secured the presence of LW-4 and

PW-3 recorded confession statement of A-1 and A-2, basing on that he also arrested A-3 and A-4 and remanded them to judicial custody. Basing on their confession statement, he seized stolen property from A-1 to A-4 under

Dt: 10-12-2019 5 C .C.No.1299/2019

Ex.P-5 and Ex.P-6. During the cross-examination witness admitted that he did not get weighed seized property under Ex.P-5 and Ex.P-6. The evidence of this witness not corroborated the case of the prosecution as it seems procedural and there is no eye witness to support the case of prosecution that the offence as alleged was committed by A-1 and A-4 only. Simply deposing the evidence that while discharging the duties this witness at RNT

Road, Warangal arresting them and securing the presence of LW-3 and LW-4 is not supporting the case that’s why he arrested A-1 to A-4 and what circumstances he got suspicious on A-1 to A-4 and in what condition they found on that road. Therefore, this evidence is not believable and seems to be a table investigation.

14.PW-6/A. Sampath Rao, Inspector of Police, Hanamkonda deposed evidence that he registered case in Cr.No. 9/2019 and issued FIR under Ex.P- 7, accordingly, he examined and recorded the statement of PW1, LW-2 and

LW-4 visited scene of offence, conducted CDF in presence of PW-2 and LW-4 under Ex.P-2, therefore, on 27.2.2019 on executing PT warrant he produced

A-1 to A-4 and remanded to judicial custody. On 28.02.2019 he summoned

LW7 and LW8 and produced the stolen property and conducted the identification panchanama under Ex.P-8. After completion of investigation, he filed charge sheet in the present case. During the cross-examination, witness admitted that he did not collect any submitted any receipts to show that

PW1 is the owner of crime property and he was not issued any notice to panch witness for conducting property identification panchanama under

Ex.P-2 and P-8. The evidence of witness went on procedural aspect, however non issuance of notice to panch witnesses is not fatal and it cannot be said because of that no panchanama was conducted by the investigating officer.

Although there is no clear evidence that A1 to A4 only committed the said offence though they were arrested in some other cases and produced under

PT warrant.

Dt: 10-12-2019 6 C .C.No.1299/2019

15.At this juncture this Court relied on Case Law where Hon’ble

High Court of Andhra Pradesh in “Boina Chinnam Naidu Vs. State of

Andhra Pradesh reproted in 2006(1) ALT Crl.11 AP held that

“Normally conviction cannot be sustained on the evidence of Investigating

Officer alone in the absence of independent evidence”.

16.The evidence of Pws.1 to 6 did not support the case of the prosecution as there were no independent eye witness to prove the case and

PW-2 also turned hostile, who is the main basis to ascertain that a commission of theft was occurred at scene of offence in the house of PW-1, basing on which Ex.P1 was registered by PW-5 in pursuance of it PW-6 filed charge sheet to support the case of prosecution. As in any criminal cases of official witness evidence restricting to the procedural aspect. It has to support by the eye eye witnesses or by atleast circumstantial witnesses.

However, there is no such kind of evidence to ascertain that PW-1 to PW-4 were committed the alleged offences.

17.In view of the above said discussion held supra and established rule positions and on careful of perusal of the evidence of PW1 to PW-6 and in the light of recitals of Ex.P1 to P-7, this Court has no hesitation in holding that prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt as there is no cogent and reliable evidence against the A-1 to A-4. Moreover, it is well settled principle that “panel statues should be strictly construed when prosecution proved its case beyond all reasonable doubts, which is lacking in the present case on hand to bring home the guilt of A-1 to A-4. Hence, they are liable to be acquitted.

IN THE RESULT, A-1 to A-4 are found not guilty for the offences

Dt: 10-12-2019 7 C .C.No.1299/2019

U/Ss.454 and 380 of I.P.C. and accordingly, they are acquitted for the same under Section 248 (1) of Cr.P.C. A1 to A4 shall be set at liberty forthwith, if they are not required in any other case.

The interim custody of M.Os. 1 to 5 given to PW1 on 13.06.2019 vide

Crl.M.P.No. 93/2019, shall be made absolute after lapse of appeal period.

The case property, if any, shall be destroyed after appeal period.

(Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court on this the 10th day of December, 2019)

Sd/-

VII-ADDL. JUDL. FIRST CLASS MAGISTRATE,

WARANGAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1: Burra Srujana-None-

PW2: Theegala Yellagoud

PW3: Syed Vaseem

PW4: Syed Nawaz Pasha

PW5: T. Sadaiah, Inspector of Police, Subedari, 1st Investigating Officer

PW6: Avirineni Sampath Rao, Inspector of Police, 2nd Investigating Officer.

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P1: Original complaint, dated 15.01.2019

Ex.P2: Signature of PW2 on crime details form

Ex.P3: Signature of PW3 on confession and recovery panchanama

Ex.P4: Signature of PW4 on confession and recovery panchanama

Ex.P5: Four confessional statement of A1 to A4

Ex.P6: First Information Report, dated 15.01.2019

Ex.P7: Property identification panchanama.

FOR DEFENCE:

- Nil -

Dt: 10-12-2019 8 C .C.No.1299/2019

MATERIAL OBJECTS:

M.O.1: Kasulaperu weighing 50 grams,

M.O.2: Vasantha Haram weighing 50 grams

M.O.3: Gundla golusu weighing 30 grams

M.O.4: Necklace weighing 30 grams

M.O.5: Baby chain weighing 10 grams.

Sd/-

VII-ADDL. JUDL. FIRST CLASS MAGISTRATE,

WARANGAL.

Dt: 10-12-2019 9 C .C.No.1299/2019

CALENDER EXTRACT

IN THE COURT OF THE VII-JUDICIAL FIRST CLASS MAGISTRATE :: WARANGAL

CALENDER CASE NO. 1299 OF 2019

1. Name of the Police Station.: Hanamkonda

2. Crime Number: 9/2019

3. Offences: Under Sections 454 and 380 of IPC

4. Name of the Accused :

1. Shaik Rafeeq, S/o. Shaik Malik, Age: 32 years, Caste: Muslim, Occ: Cloth business, R/o. 66 Dabendra Chandra Dey road, Tangra, Kolkata, West Bengal.

2. Rokon Shaik, S/o. Nooruddin Shaik, Aged: 37 years, Caste: Muslim, Occ: Cloth Business, R/o. Bamangachi, Datapukur Police Station, North 24 Parganas district, Kolkata, West Bengal.

3. Ohidul Molla, S/o. Sharath Ali Molla, aged: 33 years, Caste: Muslim, Occ: Cloth business, R/o. Harwa, North 24 Parganas District, Kolkatta, West Bengal.

4. Jumroti Molla, S/o. Bill Lal Molla, Age: 26 years, Caste: Muslim, Occ: Cloth business, R/o. 66 Debendra Chandra Dey road, Tangra, Kolkatta, West Bengal.

5. Date of:

a. Occurrence : 15.01.2019 b. Complaint : 15.01.2019 c. Apprehension : 23.02.2019 d. Released on bail : -- e. Commencement of trial : 24.06.2019 f. Close of trial :02.12.2019 g. Judgment :10.12.2019

R E S U L T:- In the result, A1 to A4 are found not guilty for the offences u/Ss.454 and 380 of I.P.C., and accordingly, they are acquitted for the same under Section 248(1) of Cr.P.C. A1 to A4 shall be set at liberty forth, if they are not required in any other case. The interim custody of M.Os. 1 to 5 given to PW1 on 13.06.2019 vide Crl.M.P.No. 93/2019, shall be made absolute after lapse of appeal period. The case property, if any, shall be destroyed after appeal period. That the case property, if any, shall be destroyed after appeal period.

Explanation for Delay : No delay

Sd/-

VII-Addl. Judicial First Class Magistrate, Warangal

Dis.No. Date:

Copy Submitted to:

The Hon’ble I Addl. District and Sessions Judge, Warangal.

O.S.No. 504 of 2016 1 Dt: 17.12.2019

IN THE COURT OF THE VII-ADDITIONAL JUNIOR CIVIL JUDGE,

WARANGAL.

Tuesday, this the 17th day of December, 2019

Present: Smt. A. Swarnalatha, VII-Additional Junior Civil Judge, Warangal

O.S. No.504 of 2016

B E T W E E N:

Thota Sadashiva Rao, S/o.Govinda Rao, Age:53 years, Occu: Retd. ADC, TSRTC, R/o. H.No.2-5-173, Water tank, Nakkalagutta, Hanamkonda, Warangal district. . . . Plaintif A N D 1.S. Punnam Chander, S/o: Sharabaiah, Age: 48 years, Occu: Record Assistant, Warangal-II Depot, TSRTC, Hanamkonda,

2. S. Lalitha, W/o:Punnam Chander, D/o. Yakub, Age: 45 years, Oc: House-hold, Both R/o. H.No.2-4-1010, NGO’s colony road, Hanamkonda, Warangal …Defendants -o0o-

This suit is coming up before me on 17.12.2019 for fnal hearing in the presence of Sri C. Vidyasagar Reddy, Advocate for the Plaintif and Sri B. Venkateshwar Rao, Advocate for Defendant, after hearing and on perusing the material on record and having been stood over for consideration till this day, this Court delivered the following:

: : J U D G M E N T : :

1.This suit is fled seeking recovery of an amount of Rs.1,50,833/- (Rupees One lakh, ffty thousand, eight hundred and thirty three only) against the person and property of both the defendants with future interest @ 2% per month on principle amount of Rs.1,00,000/- (Rupees One lakh only) from the date of suit to till the realization of total decreetal amount and for costs of the suit.

2. The brief facts of the plaint are:

The plaintif and defendant no.1 are collegues and working in

APSRTC. Defendant no.2 is the wife of defendant no.1. Due to the said acquaintance, defendant no.1 approached plaintif on 6.4.2014 and

O.S.No. 504 of 2016 2 Dt: 17.12.2019

requested him to advance an amount of Rs.1,00,000/- as hand loan to meet his family necessities for which the plaintif lent the said amount on the same day to defendant, for which defendant promised to repay the same along with interest @ 2% per month within short period and also executed demand promissory note in favour of plaintif in which Defendant no.2 stood as guarantor for the said amount and signed on the promissory note. Later, after availing the loan amount, the defendants neither paid the principal amount nor the interest in spite of repeated oral demands made by the plaintif. Vexed with this plaintif got issued legal notice to defendant Nos. 1 and 2 on 28.04.2016. Hence the suit.

3.Per Contra, defendants fled written statement denying the plaintif averments and contended that, the defendant no.1 name is S.

Punnam Chander not S. Punender as mentioned in the plaint by plaintif and he never borrowed any amount from the plaintif by executing demand promissory note. Further, contended that no such transaction was took place between the plaintif and defendant no.1 on 6.4.2014 and there is no occasion to him to see any persons by name G. Devender Reddy, R. Rakesh

Kumar and another as they are stock witnesses. Therefore, prayed to dismiss the suit.

4.During the course of trial, the plaintif himself was examined as PW1 and PW-2 also examined to support of his case and got marked Ex.A1 to A-3. No oral or documentary evidence was adduced on behalf of the defendants.

5.Heard the learned counsel for plaintif. Perused the material on record.

6. Now the point for consideration is:

"Whether the plaintif is entitled to recover the suit claim as prayed for"? To what relief?

O.S.No. 504 of 2016 3 Dt: 17.12.2019

7. Point :It is the case of plaintif that he lent an amount of

Rs.1,00,000/- to the Defendant No.1 on executing promissory note by him on 6.4.14. On the other hand it is contended by the Defendants that the name of S. Punnam Chander is no way concerned with defendants and defendant no.1 did not obtained any hand loan from the plaintif. Further the signature on Ex.A1 is not his signature.

8.To substantiate his case PW-1 reiterated entire contents of his chief afdavit and relied upon the EX.A1 to A3. As per his evidence. Ex.A.1 is

Original promissory note, dt.06-04-2014, Ex.A-2 is Ofce copy of legal notice, dt.28-04-2016, Ex.A-3 is Xerox copy of postal return covers (2) nos, with acknowledge.

9.During the cross examination Pw.1 deposed that at the time of suit transaction two persons were present on that day namely G.Damoder

Reddy and R. Rakesh Kumar. The name of defendant no.1 is mentioned as

Punnam Chander in their ofce record. PW-1 and defendant no.1 working in

RTC Department. Further, it is also deposed that defendant no.1 was scribed

Ex.A-1 on confrontation of vakalathnama of defendants and Ex.A-1 witness identifed the signature of defendnat no.1 and admitted that both signatures are one and the same. Along with defendant no.1, his wife/defendant no.2 also put her signature in Ex.A-1. With the above evidence, it is clear that plaintif and defendant no.1 are working in same department and he executed Ex.A-1, to which defendant no.2 stood as witness. Except this nothing was elicited against the PW-1 case by the counsel for defendants.

10.PW-2 one of the attesting witness in Ex.A-1 deposed evidence that he is working in RTC as conductor. He know defendant no.1 who is working as record assistant in the same department and they called defendant no.1 as Punender in their department, but he donot know his name as per the records. Further, he deposed that PW-1 also worked as

O.S.No. 504 of 2016 4 Dt: 17.12.2019

Assistant Depot clerk and retired 6 years back from the service and it is admitted that he used to visit the house of PW-1 where the defendant no.1 also used to visit his house, thereby he know them. Further, he added that at request of defendant no.1 PW-1 arranged suit amount for his necessities and admitting that defendant has executed promissory note in favour of PW- 1 on 6.4.2014 in his presence and along with him one G. Damoder Reddy also put his signature as one of another witness on the said document.

From the above evidence, it is clear that defendant no.1, PW-1 and this witness belong to same department and they know well each other and at request of defendant no.1 only PW-1 lent the suit amount for which defendant no.1 executed Ex.A-1.

11.On the other hand, no oral or documentary evidence on behalf of the defendants except the contentions made by way of written statement on their behalf. Therefore, mere taking contentions in written statement will prove nothing about the party, for which this court relied on the following case laws : 1999 (2) ALD (S.C. SN) 19, Wherein Honorable Supreme

Court held that "Indian Evidence Act - Section 114(g) – Defendant failing to appear as a witness to substantiate his defense. It can be presumed that his pleas in the written statement are not established. Suit can be decreed on the basis of evidence adduced by the plaintif".

Further in another decision reported in AIR 1999 S.C. 1441 in between Vidhyadar Vs Mankik Rao and another, it was held by the

Honorable Supreme Court that “Where a party to the suit does not appear

into the witness box and states his own case on oath and does not ofer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct“.

However, the initial burden of proof lies on plaintif to establish his claim, to this aspect evidence of PW-1 and PW-2 and EX.A1 to A3 are

O.S.No. 504 of 2016 5 Dt: 17.12.2019

supporting his case as it is a rule that who afrms a fact must prove PW-1 succeeded in discharging burden laid on him by examining PW-2 who is non other one of the attesting witness of Ex.A-1. Now the burden shifts on the defendant to disprove that the signature on Ex.A-1 and signatures on written statement are diferent. To this aspect, he failed to take any steps to disprove it.

12. Coming to the discrepancy in the promissory note with regard to the name of the defendant no.1. PW.2 clearly admitted that they call

Defendant no.1 as Puninder only in their department, but he donot know his actual name. Except giving formal suggestions to PW.1 nothing could be elicited by the counsel for defendant that no consideration was passed under Ex.A1 and he did not execute the same. The admissions made in para no.8 of the written statement also clearly show that PW-1 did some fnancial business with employees of TSRTC and during the course of same, S.

Punender borrowed a sum of Rs.25,000/- from the plaintif. At that time, he obtained blank promissory note with duly signed and later said amount was repaid along with interest in presence of S. Mogili, Driver and K. Prasad,

Conductor but such promissory note was not returned by PW-1 at that time and taking advantage of said note PW-1 now created this false allegation and came with this suit is not reliable, as there is no proof of evidence that he has borrowed Rs.25,000/- only from PW-1 and repaid the same, as he has not choose to coming to witness box and depose evidence or even tried to bring said S. Mogili or K. Prasad who were witnesses said transaction which clearly established that defendant no.1 has borrowed hand loan from PW-1 and he kept his promissory note with PW-1 only even on clearing the same.

Therefore, it is proved that he had executed promissory note in favour of the plaintif but for what purpose and under what circumstances not necessary that execution of the document was admitted along with the statement that

O.S.No. 504 of 2016 6 Dt: 17.12.2019

by taking the advantage of the same without returning plaintif came with this suit is sufcient to prove the case of plaintif. If really it is so, then what made the defendant to come into the witness box and to bring one of those witness who could able to disprove his contentions.

13.The defendants relied on the following case law, i.e., Gopi Ram v. Karnail Singh, dt. 11.2.2015 held by the Hon’ble Punjab and Haryana

High Court, in which para no.11 relied by the defendant is not applicable to the present case on hand either to the facts and circumstances or the admissions made by the defendants at para no.8 of written statement fled by them. Hence the above case law is not applicable to the present case on hand.

In absence of disproving the contentions raised by the defendants and succeeding to establish the case as alleged by the PW-1 in respect of an elaborate above discussion, it is held that the plaintif proved his claim against the defendants with his evidence in support of PW-2 eividence corresponding with Ex.A-1 to A-3. Therefore, the suit is liable to be decree as prayed. Hence, the issue is answered in favour of the plaintif and against the Defendants.

14. In the result, the suit is decreed with costs in favour of the plaintif for a sum of Rs,1,50,833/- (Rs. One lakh, Fifty thousand, eight hundred and thirty three only) against the person and property of

Defendant no.1 & 2 directing them to pay together with future interest @ 24% P.A. on the principle amount of Rs. 1,00,000/- (Rs. One lakh only) from the date of fling suit to till the date of decree, and thereafter at 6% interest

P.A. till realization.

(Typed to my dictation by Stenographer, corrected and pronounced by me in the open court, on this the 17th day of December, 2019.)

VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

O.S.No. 504 of 2016 7 Dt: 17.12.2019

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif: For Defendants:

PW-1: Thota Sadashiva Rao -None-

PW-2: T. Sadasiva Rao,

EXHIBITS MARKED

For Plaintif:

Ex.A-1:Copy of promissory note, dt.06-04-2014,

Ex.A-2:Ofce copy of legal notice, dt.28-04-2016,

Ex.A-3:Xerox copy of postal return covers (2) nos, with acknowledge.

For Defendants: -NIL-

VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

O.S.No. 504 of 2016 8 Dt: 17.12.2019