Sri Alamanda Ramu

IN THE COURT OF ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) SOMPETA

Present:- Sri. A. RAMU

Additional Civil Judge (Junior Division),

Sompeta.

Monday, this the 10th day of January, 2025

O.S.No.35 of 2015

Between:

Sana Sankara Rao, S/o. Ramana Murthy, aged about 55 years, Business, Door No. 5-10, Bazar Street, Haripuram village, Mandasa Mandal, Srikakulam District. … Plaintiff.

And :

1) State of Andhra Pradesh, represented by the District collector, Srikakulam

2) Tahsildar, Mandasa … Defendants

This suit is coming on 28-11-2024 for fi nal hearing before me in the presence of Sri V. Balakrishna, Advocate for plaintiff and of Sri B.

Lakshminarayana, Assistant Government Pleader, for Defendants, upon hearing on both sides and having stood over till this day for consideration, this Court delivered the following:-

J U D G M E N T

1.Plaintiff filed the suit for declaration that to declare that the notice issued in

RC. Nil dt. 04-05-2015 by the 2nd defendant as illegal; and for a consequential permanent injunction restraining the defendants, their subordinates, servants and workmen from ever interfering with plaintiff's peaceful possession and enjoyment of the plaint schedule property and costs of the suit.

2.The brief averments of plaint are as follows:

(a)The plaint schedule property belongs to the plaintiff and it is his joint family property, consisting of the plaintiff, his brothers Peraraju and Madhava Rao. The plaint schedule property originally belonged to Smt. Devakidevi Agarwal, w/o late

Sivadandas Agarwal. The said Devakidevi Agarwal who was in possession and enjoyment of the property having valid title sold the same to the father of the plaintiff under a registered sale deed dated 15-04-1993 through her power of attorney Sri Prem Kumar Agarwal and delivered possession of the property to the father of the plaintiff. The plaintiff's father having obtained possession there under, continued to be in possession of the plaint schedule property till his death on 14-06-2004, leaving behind him, his three sons, the plaintiff and his two brothers. The plaintiff being the eldest male member of the family has been managing the property in the capacity of manager of the joint family. Thus, the plaintiff is entitled to file the suit in his capacity as manager of the family on his behalf and on behalf of his two brothers.

(b) The plaint schedule property is zeroyithi land. Soon-after the plaint schedule property was purchased, the plaintiff's father constructed a cashew factory in the year, 1993 on the western end of the plaint schedule property after obtaining necessary approvals and permissions and has been operating the cashew knowledge of all including the defendants. The western boundary of the plaint schedule property is a channel which is beyond the bund on its western end. Due to flow of water through the channel, the eastern edge of the channel is subjected to erosion and it caused damage to the compound wall and also the factory.

Therefore, the plaintiff's father got constructed a concrete support wall at the western end of his field in his own site for the purpose of protecting the land and the factory. The wall is not only protecting the land erosion, but also preventing the flood water being entered into the factory. The wall is well within the plaintiff's own site. The defendants are aware of the existence of the wall ever-since it was constructed.

(c) While the matters thus stand, the 2nd defendant at the instance of the business rivals of the plaintiff got issued a notice under Sec.7 of the Land

Encroachment Act mainly alleging that the plaintiff encroached into the land in

Survey No.150/3 i.e. channel and directed the plaintiff to remove the support wall.

As stated supra, the wall is in existence in the plaint schedule property belonging to the plaintiff, the defendants have no right what so ever to interfere with the plaintiff's possession and enjoyment of the plaint schedule property and particularly, the supporting wall shown in the red-marked portion of the plaint plan, filed along with this plaint.

(d) When the notice under Sec.7 of the Land Encroachment Act was served on the plaintiff, immediately the plaintiff submitted a detailed explanation and requested the 2nd defendant to drop all further proceedings stating that Sec.7 of the Land Encroachment Act has no application as the plaintiff has not encroached any land belonging to the Government. As the plaintiff and his predecessors have been in continuous and un-interrupted possession and enjoyment of the plaint schedule property and the wall was constructed in the place of the existing bund within plaintiffs property, Sec.7 of the Land Acquisition Act or any other provision under the aforesaid Act have no application.

(e) It is submitted that the defendants after receipt of the explanation have been making hectic efforts to demolish the wall existing on the western side of the plaint schedule property threatening to demolish wall and cause damage to the factory and premises in the plaint schedule property. The threatened action of the defendants is illegal, without jurisdiction and is activated by malice and ill-will.

(f) Unless, it is declared that the notice issued by the 2nd defendant in Rc.No.

Nil dated 04-05-2015 as illegal, without jurisdiction and for a permanent injunction restraining the defendants, their subordinates, agents, servants and workmen from ever interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property, the plaintiff would sustain great and irreparable loss.

(g)This suit is therefore filed praying the Hon'ble Court to declare that the notice issued by the 2nd defendant in Rc.No. Nil dated 04-05-2015 as illegal and without jurisdiction and to grant a permanent injunction restraining the defendants, their subordinates, agents, servants and workmen from ever interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property.

(h) The defendants are Government servants and notice under Sec.80(1) C.P.C.

is required to be served on them before filing this suit. As there is no time to issue notice and wait for the statutory period, a separate application Sec.80(2) C.P.C. is filed praying the Hon'ble Court to dispense with prior notice and to grant leave of the Hon'ble Court to file the suit.

3.The defendant Nos.1 and 2 field their written statement and denied all the allegations of the plaintiff pleaded in the plaint:- The allegations in the plaint are all not true, valid and binding on this defendant. The plaintiff is put to strict proof of all the allegations which are not expressly admitted herein. The allegations in the plaint that the plaint schedule property belongs to the plaintiff, and that it is his joint family property, consisting of himself, his brothers Peraraju and Madhava Rao, and that the plaint schedule property originally belonged to Smt. Devakidevi Agarwal, w/o late Sivadandas

Agarwal, and that the said Devakidevi Agarwal who was in possession and enjoyment of the property having valid title, sold the same to his father under a registered sale deed dated 15-04-1993 through her power of attorney Sri Prem

Kumar Agarwal and delivered possession of the property to his father, and that his father having obtained possession there under, continued to be in possession of the plaint schedule property till his death on 14-06-2004, leaving behind him, his three sons, i.e. the plaintiff and his two brothers, and that the plaintiff being the eldest male member of the family has been managing the property in the capacity of manager of the joint family, and that he is entitled to file the suit in his capacity as manager of the family on his behalf and on behalf of his two brothers, and that the plaint schedule property is a Zeroyithi land, and that soon-after the plant schedule property was purchased, the father of the plaintiff constructed a cashew factory in the year, 1993 on the western end of the plaint schedule property after obtaining necessary approvals and permissions and has been operating the cashew factory and carrying on the business un-interruptedly to the knowledge of all including the defendants, and that the western boundary of the plaint schedule property is a channel which is beyond the bund on its western end, and that due to flow of water through the channel, the eastern edge of the channel is subjected to erosion and it caused damage to the compound wall and also the factory, and that the father of the plaintiff got constructed a concrete support wall at the western end of his field in his own site for the purpose of protecting the land and the factory, and that the wall is not only protecting the land erosion, but also preventing the flood water being entered into the factory, and that the wall is well within his own site, and that the defendants are aware of the existence of the wall ever-since it was constructed, and that while the matters thus stand, the 2nd defendant at the instance of his business rivals got issued a notice under Sec.7 of the Land Encroachment Act mainly alleging that the plaintiff encroached into the land in Survey No.150/3 i.e. channel and directed him to remove the support wall, and that as stated supra, the wall is in existence in the plaint schedule property belonging to the plaintiff, and that the defendants have no right what so ever to interfere with his possession and enjoyment of the plaint schedule property and more particularly, the supporting wall shown in the red- marked portion of the plaint plan, filed along with this plaint, and that when the notice under Sec.7 of the Land Encroachment Act was served on the plaintiff, immediately he submitted a detailed explanation and requested the 2nd defendant to drop all further Proceedings stating that Sec.7 of the Land

Encroachment Act has no application as he has not encroached any land belonging to the Government, and that as himself and his predecessors have been in continuous and uninterrupted possession and enjoyment of the plaint schedule property and the- wall was constructed in the place of the existing bund within his property, Sec.7 of the Land Acquisition Act or any other provision under the aforesaid Act have no application, and that the defendants after receipt of the explanation have been making hectic efforts to demolish the wall existing on the western side of the plaint schedule property threatening to demolish wall and cause damage to the factory and premises in the plaint schedule property, and that the threatened action of the defendants is illegal, without jurisdiction and is activated by malice and ill-will are all false and all the allegations are invented for the purpose of the plaint only. The plaintiff is put to strict proof of all the allegations. This defendant submits that the Ayacutdars and other villagers of

Haripuram, Mandasa Mandal Srikakulam have filed a Mahajar petition before the

Tahsildar, Mandasa on 19-06-2014 requesting that the encroachments in Gorja

Poramboke i.e., in S.No. 150/3 and other constructions may be evicted immediately and safe guard the ryots for flow of the water to the tank in the Gorja

Porampoke. There-after, the matter has been referred to the Mandal Surveyor for verification of the same. The Mandal Surveyor, Mandasa has reported on 23-06- 2014 that one Additional Surveyor is required to fix the boundaries of Survey No.

150, 152 and 153 of Haripuram village of Mandasa Mandal. Accordingly the

Assistant Director, Srikakulam has been addressed in this office Rc.No. 146/2014 dt.25-06-2014 to depute 2 Task Force Surveyor to fix the boundaries on 09.07.2014. The Dy. Inspector of Survey, Tekkali visited Haripuram village and fixed the Boundaries of S.No. 150/3, S.No.251-1 and S.No.152/1 of Haripuram village in the presence of the Mandal Revenue Inspector-2, Village Revenue

Officer, Surveyor T.F., Surveyor of Mandasa Mandal. The Dy. Inspector of Survey

Office of the Revenue Divisional Officer, Tekkali identified the S.No. 150/3 is in

Gorje Poramboke and some encroachment found in S.No. 150/3 construction of wall by the plaintiff free flow of water to the tank in view of much obstruction.

There is stagnation of water causing health problems to the public, for an extent of Ac.0-03 by raising illegally, thereby causing obstruction of free flow of water to the tank in view of much obstruction. There is stagnation of water causing health problems to the public. It is further submitted that the villagers of Haripuram filed a petition before the Revenue Divisional Officer, Tekkali to remove the encroachments in S.No. 150/3 of Haripuram village. The Revenue Divisional

Officer, Tekkali addressed to the Tahsildar, Mandasa in his Rc.No. 215/2015B dated 24..02..2015 to esquire and remove the encroachments. It is submitted that again the villagers of Haripuram filed a grievance petition before the District Collector,

Srikakulam to remove the encroachments in S.No. 150/3 of Haripuram village. The

Collector while sending the petition to the Tahsildar, Mandasa in his Rc. No.

329731/2015 H 7 dated 27-02-2015 directed to take action and to give endorsement to the plaintiff and the action taken may be up to date in the "PRAJAVANI" website.

4. Therefore, the plaintiff Sana Sankara Rao, S/o late Rama Murthy of

Haripuram village has encroached to a extent of Ac.0-03 cents in Survey No.

150/3 out of the total extent of Ac.0-70 cents and raised compound wall and a notice u/s.7 of Land Encroachment Act, 1905 has been issued to him. But the individual refused to take notice u/s. 7 of Land Encroachment Act, 1905. The said notice was sent to the party by registered post and also one copy of the Form-7.

Notice affixed on the land encroached by Sri Sana Sankara Rao. The individual sent reply to the Tahsildar to drop notice since he did not encroach land in

S.No.150/3 and he has constructed wall in the Zerayathi S.No. 150/4 but not in 150/3.

5. The Survey No.150/3 is a Government Poramboke land classified as "Gorja

Poramboke. Therefore, the plaintiff has no right to encroach the land covered by

S.No.150/3. As the plaintiff encroached the land, this defendant issued Form-7 notice to the plaintiff that he encroached the land to an extent of Ac.0-03 cents in

S.No. 150/3. and as the public interest is involved in this case and there is every necessity to remove the encroachment. As per Land Encroachment Act, 1905, the plaintiff has to vacate the encroached land. There are no cause of action in this suit. The cause of action as alleged in the plaint is created for the purpose of filing the suit. It is submitted humbly, the Civil Court has no jurisdiction to entertain the suit. The defendant submits that notice as contemplated under Sec.80 С.Р.С. is required to be served on the defendants, as the defendants are Government servants and this suit without notice is not maintainable in law as the defendants have already issued notice under Sec.7 of Land Encroachment Act. The suit is not in time. There are no merits in the suit. The suit is not maintainable in law. This defendant therefore prays that the Hon'ble Court may be pleased to dismiss the suit with costs in the interest of justice.

6.Heard the both side and perused the case record on hand the following issues were settled for trial.

7.Basing on the above rival pleadings the court framed the following issues:

1) Whether the notice issued on dated 04.05.2015 by defendant no.2 is illegal as claimed by the plaintiff?

2) Whether the plaintiff encroached to an extent of Ac. 0.03 cents in survey No. 150/3 as contented by the defendant?

3) Whether this court has jurisdiction to entertain this suit as contented by the defendant?

4) If so, to what relief?

8.During the trial the plaintiff himself examined as PW.1, himself and got marked Ex.A1 to Ex.A3 on their behalf and Kanagala Baburao and Mavudilli

Dharmarao are examined as PW.2 and PW.3 respectively.

9.On the other hand, the first defendant himself examined as a DW.1 and got marked Ex.B1 to Ex.B11 marked on his behalf.

10.Heard the arguments from council for the plaintiff and defendant.

11.Issue Nos.1 and 2:

At the outset this a suit for grant of perpetual injunction against the defendants restraining them from interfering with peaceful possession of the plaintiff over the suit schedule property. Before going into discussion, it is relevant refer the decision of the

Hon’ble Apex court in Agnigundala Venkata Rangarao Vs Indukur Ramachandra

Reddy inPara no.35 held that “ It is a settled principal of Law that in order to claim prohibitory(temporary or permanent) injunction, it is necessary for the plaintiff to prima facie prove apart from establishing other two ingredients namely, irreparable loss and injury that is possession over the suit land is legal”. Hence, the initial burden lies upon the plaintiff to prove that he has prima facie case and he is in lawful possession and enjoyment of the plaint schedule property as on date of the filing of the suit. Now, I shall analyze and evaluate evidence of the plaintiff how far to want extent he discharged his onus proofs by the yard stick of proponents of probabilities.

12.To shore up the contention of the plaintiff and to prove the prima facie case, the plaintiff himself examined as PW.1 and sought to relay Ex.A.1 to Ex.A.3. Ex.A.1 : Certified copy of registered sale deed dated 15-04-1993 executed in favour of the father of the plaintiff by Devikadevi Agarwal. Ex.A.2 : Notice dated 04-05-2015 issued by the 2nd defendant to the plaintiff. Ex.A.3 : Explanation submitted by the plaintiff on 14-05-2015 to the notice issued by the 2nd defendant. PW.1 further testifies that the plaint schedule property belongs to him and it is joint family property of his brother Para Raju and Madhava Rao. The plaint schedule properly originally belongs to Smt.Devikadevi Agarwal Wife of Late Sivadanadasu Agarwal. The said properly sold to his father under a registered sale deed dated : 05-04-1993 through his power of attorney by name Sri Premkumar Agarwal and delivered possession of the property to his father. Continued to be in possession of plaint schedule property till his death on 14-06-2004 having behind himself and his brothers. PW.1 is the eldest member of his family and he has been managed the property and manager of the joint family. PW.1 further certify that the plaint schedule property is zeroythi land. His father constructed a Kaju Factory in the year 1993 on the western end of the plaint schedule property. The western boundary of the plaint schedule properly is a channel which is behind the bund on its western end. Due to flow of water through the channel, the western edge of the channel is subjected to erosion and it caused damage to compound wall and also factory. His father got constructed a concrete support wall at the western end of his field in his own site for the purpose of protect the land and kaju factory.

Further stated the constructed wall is a not only protecting the land erosion but also preventing the flood water being entered into the Kaju Factory. The constructed wall is well with in his own site. In meanwhile the second defendant at the instance of the his businesses rivals got issued a notice U/s 7 of the land encroachment act. Mainly alleging that he encroached into the land survey no.150/3 I.e channel and directed him to remove the supporting wall.

13.PW.1 further testified that when the notice U/s 7 of the land encroachment act was served to him immediately he submitted a detailed explanation and requested to second defendant to drop the all further proceedings stating that sec 7 of the land encroachment act as no application as PW.1 not encroached any land belongs to government and that himself and his predecessors have been in continuation and uninterrupted possession and enjoyment of the plaint schedule property and the wall was constructed in the place of exciting bund with in his property. The defendants after receipt of the explanation have been making hectic effects to demolish the wall exciting on the western site of the plaint schedule property and threatening to him demolish wall and cause damage to the factory and premises of the plaint schedule property. PW.2 and PW.3 corroborated the version of the plaintiff.

During the cross examination of PW.1 asserted certain probative facts, which are herein under The suit schedule property is own property purchased from his father 15-04-1993. He don’t know sale consideration, Survey no.150/4

Patta Number : 549, the property situated Ratti Road of Haripuram with in extent

Ac.1.40 cents, rain fled lands, east Mamidelhi Dandasi and other’s dryland, South

Mamidelhi Dharamarao and Kurmarao, West and North: Water canal. Further he admitted his father obtained permission to convert the land to dry land for the construction of the Kaju Industry accordingly he has obtained permission from the

Government. He filed the plan approval of the plaint schedule property in this court. West and Northern side water canals of the plaint schedule the water from the both channels used by the villagers of the Haripuram for cultivation. Further he clearly admitted there is a bund between the channel and his factory, the bund width about 10 feet above. The compound wall constructed by us after construction of the factory on the western side. The land in survey no.150/3 is the land of the government. Further admitted the survey was conducted by the

additional surveyor and Mandal surveyor. He received notice by the government

and he filed present suit after receiving the notice. He issued notice to government prior to file this suit against the defendants. Further PW.1 denied the suggestions that he encroached in the government land in survey number 150/3 and constructed a wall and when the government issued notice for eviction, he filed the false suit against the defendants and deposing false evidence. Even as a scene Ex.A.1, it is only show that zeroyith land in an extent of Ac.1.40 cents bearing survey number 150/4 under a registered sale deed dated : 15-04-1993.

But he did not show that he is not encroached the land of the government in survey number 150/3. The admit evidence culled out from the cross examination of PW.1 probalise the forensically of the defendants and further dent the plea of the plaintiff.

14.It has been consistently deposed by the PW.2 during the cross examination, the factory was built in his own site of the PW.1 and also compound walls built in their site and there is a water channel in the western side of the compound wall and the channel belongs to government. The said factory constructed 35 years back and the protection wall constructed 20 years back. Further PW.2 admitted the protection wall constructed 3 years back when the old one was demolished.

He cannot say the extent and measurement and boundaries of the suit schedule property. Further clearly admitted Tahsildar Mandasa along with divisional surveyor surveyed the gorge(bund) along with the plaint schedule.

15.As seen the evidence of the PW.3, he testified in his cross examination that he cannot say the extent, boundaries and measurements of the property but at the time of the construction of the factory he was present. Further admitted he know about the Mandasa tahsildar along with district surveyor surveyed the gorge(water channel) along with construction of the protection wall. PW.2 and

PW.3 they testified in cross examination they not know the whether the farmers of

Haripuram represented the matter to Tahsildar due to construction of the protection wall, the water was obstructed to flow through the channel.

16.For the above evidence of PW.2 and PW.3 , it is quite clear that the schedule property survey number is 150/4, the government survey number is 150/3 is a government property. In the western side of the water channel the plaintiff constructed protection wall and did not obtained necessary approval and permissions from the competent authorities. The PW.2 and PW.3 were also did not know whether the PW.1 obtained necessary approval and permissions from the competent authorities and also construction of the protection wall.

17.Para contra the demolish the primafacie case of the plaintiff the second defendant Tahsildar of Mandasa examined as DW.1 : Devalla Anand Kumar to prove its possession and enjoyment the Exhibits B.1 to B.11 marked. Ex.B.1 : The letter in R.C.No. 146/2014 dt. 25-06-2014 to the Assistant Director survey and lands records, Ex.B.2: True copy of the settlement Fair Adangal of Haripuram village of Mandasa Mandal, Ex.B.3: True copy of FMB in field no. 150 of Haripuram village, Ex.B.4:The original receipt in G.B.R.s. No. 329731/2015/H-7 dated 02/2015, Ex.B.5:The original letter in R.C. No. 215/2015/B/dated 24-02-2015,

Ex.B.6:The original received copy of section 7 notice issued under land encroachment Act, Ex.B.7:The original copy of explanation submitted by Sana

Sahankar to the Tahsildar Mandasa dated 14-05-2015, Ex.B.8:Adangal issued by

MeeSeva dated 07-07-2015, Ex.B.9:Original survey report issued by the Mandal

Deputy Surveyor, Ex.B.10:The Original Rough sketch of the plaint schedule property, Ex.B.11:The Original Photos along with CD. DW.2 working as a Tahsildar

Mandasa and well acquired with the facts of this suit and stated that Ayakattu Das and other villagers of the Haripuram, Mandasa Mandal have filed a Mahajar

Petition before 19-06-2014 and requested that the encroachment in gorga poramboku in survey number 150/3 and other constructions may be evicted immediately and safe guard the Ryots for flow of the water in the tank in the gorgaporumbok. The matter has been referred to the mandal surveyor for verification of the same. The mandal surveyor mandasa as reported on 23-06- 2014 that one additional surveyor is required to fix the boundaries of the survey 150, 152,153 of Haripuram village. Accordingly the assistant director Srikakulam has been addressed to his office Ex.B.1 RC.No.146/2014 dated : 25-06-2014 and ordered to depute two taskforce surveyor to fix the boundaries on 09-07-2014.

The Deputy inspector of surveyor visited Haripuram village and fixed the boundaries in Sc.No.150/3,151/1,152/1 of Haripuram village in the presence of the

Mandal Revenue Inspector, Village Revenue Officer, Surveyor T/F, surveyor of

Mandasa Mandal. The surveyor of the Revenue Divisional, Tekkali identified the

Survey No.150/3 is in gorga porumbok and some encroachment found in Survey

No.150/3 for extent of Ac.0.03 cents by raising construction wall by the plaintiff illegally. Thereby causing obstruction of free flow of the water to the tank in view of much obstructions. There is a stagnation of water causing health problems of the public. The villagers of the Haripuram filed petition before Revenue Divisional

Office, Tekkali to remove the encroachment in survey number 150/3 of the

Haripuram. The RDO, Tekkali addressed to the Tahsildar Mandasa Ex.B.5

Rc.No.215/2015/B/dated 24-02-2015 to enquire and remove the encroachment.

Further the villagers of haripuram again filed a grievance petition before the

District Collector, Srikakulam to remove the encroachments in Survey No.150/3 of

Haripuram Village. Then the collector office while sending the petition to Tahsildar,

Mandasa Ex.B.4 : G.B.R.s. No. 329731/2015/H-7 dated 27-02-2015 directing to take action and gave endorsement to the plaintiff the action taken may be up to date in the prajavani website. Then tahsildar issued Ex.B.6 notice Under section 7 of Land Encroachment Act to the plaintiff through registered post. Then one copy affixed on the encroachment wall. The plaintiff sent to reply to the tahsildar under

Ex.B.7: explanation submitted by Sana Sahankar to the Tahsildar Mandasa dated 14-05-2015, He did not encroached land in survey number 150/3 and he has constructed wall in the zeroyth land of survey number 150/4 but not in survey number 150/3. DW.1 further stated the plaintiff encroached the land of government in survey number 150/3 in extent of 0.03cents and issued Under section 7 of land encroachment act notice. From the above evidence it would be apart that the plaint schedule land classified gorgaporumbok(Water Channel) in survey no.150/3 to an extent Ac.0.03 cents utilized by the Haripuram village people. As seen the Ex.B.1 to Ex.B7 which shows that plaint schedule property is in possession of the government and it is a gorga(Water Channel). Hence when the government is in possession of the plaint schedule property by the date of filing of the suit and it is a gorga water channel(Gorga), it can be said that the plaintiff is in possession or lawful possession over the plaint schedule property.

18.As seen further, undoubtedly, as per the board standing order 15 assessment of gorga(Water Canal) lands are prohibited. Any assignment of the same would be illegally and do not create any legal rights over the said lands. For a while, the possession of the plaintiff to be true, but did not conform any legal right to the plaintiff as it is against to the board standing orders 15. At this juncture, it is relevant to note down the ruling of Hon’ble Highcourt of

Andhrapradesh, in Madduthata Vs Uttaramani Nagamani 1995 SSC online AP 47 //(1995) 1 AP LJ 244, 1995(1) ALT 766, wherein their lordship held that in

Para No.11.: The suit property being the part of Madduvani Koneru which is a tank, presumably a Government tank or a public tank and at any rate not a private tank. Patently Ex. A.1 was issued to the plaintiff by the Tahsildar by virtue of the powers conferred on him under the Andhra Pradesh Board of Revenues Standing

Orders. Such standing orders were issued by the Board of Revenue under the

Andhra Pradesh (Andhra Area) Board of Revenue Regulation, 1803 and it appears that even now such Standing Orders are In force in Andhra Area except with the jurisdiction, powers and duties of the Board under the said Regulations are transferred and vested in ancf exercised by the Commissioner concerned by virtue of Section 3 of Andhra Pradesh Board of Revenue (Replacement by

Commissioners) Act 1977, (Act 8 of 1977) which came into force on 29-4-1977.

This act succeeded an Ordinance No. 3 of 1977 which was repealed under Section 10 of the Act. Section 10 of the Act contemplates that in the application notification, scheme, form or order, any reference to the Board or Member shall, unless the context otherwise requires, be deemed to be a reference to the

Commissioner concerned. Therefore, the Board of Revenue Standing Order which were in force as on the date of the Act coming into force wherever it mentions

Board or Member, should be deemed to be a reference to the commissioner for the purpose of enforcement, thereby the statutory status given to such Standing

Orders can be envisaged. It is true that whether the Board Standing Order has the statutory force or not, was a vexed question before the courts holding some times in the positive and some times in the negative depending upon the context and the purpose for which such Standing Orders were sought to be enforced or interpreted. Now in view of Katta Rattamma v.Gannamaneni Kotaiah (1) 1975 (2)An. W.R 122, Meghraj Kothari v.Delimitation Commission (2) (1967) 2 SCJ 248 :

AIR 1967 SC 669, K. Nagarathnammal v.Ibrahim Sahed (3) AIR 1955 Madras 305,

Pasupuleti Krishna Murthy v. Annadasu Bapanayya (4) 1956 A.L.T. 566 and Anji

Raju v. State of Andhra Pradesh (5) AIR 1961 A.P. 123, the law appears to be that all that is found in the form of Board of Revenue Standing Orders may not have the force of law, but such of the orders which are issued by virtue of the statutory powers of the Board will have the force of law. In State of Andhra Pradesh v.

N.Venugopal (6) AIR 1964 SC 33, the Supreme Court was considering whether the

Police Standing Orders have got the force of law. Such orders like the Boards's

Standing Orders are a mixer some times issued under the Statutory Orders, some times as administrative incorporation. In such a situation, the Supreme Court held that the Standing Order which was not issued under the Madras District Police Act but issued by the government order of the Home Department does not have the force of law. Drawing analogy from this precedent and also Katta Rattamma's case (1 supra) it can be safely concluded that the Boards Standings Orders are both statutory and non-statutory depending upon the fact whether they are issued under any statute or whether they are issued in the form of a Government Order by the Government in exercise of their executive power to issue instructions under

Article 162 of the Constitution of India. Standing Order No. 15 relating to disposal of land found in Part II of the Board of Revenue Standing Orders are admittedly issued by virtue of the statutory powers of the Board of Revenue under the

Regulations supra concerning the Revenue administration. It is significant to note that the Board of Revenue which was constituted under the Andhra Pradesh (Andhra Area) Board of Revenue Regulation, 1803 which was in charge of the general superintendence of the revenue from whatever source they may arise were also entrusted with many functions including the administration of justice and courts. Admittedly, no other rule or statute is pointed out to deal with the disposal of lands by the Board of Revenue and now the Commissioner which is equivalent to Standing Order No.15 and therefore, it must be taken to be the rule having force of law regarding disposal of lands. Therefore, the law now settled appears to be that orders regarding assignment of lands are to be disposed of in a quasi-judicial manner and even the rules contained in the Standing Orders envisages disposal of applications for assignment in the same manner. The officer who is competent to order the assignment is thus bound by Standing Order No. 15 in regard to disposal of land by way of assignment or otherwise. In sum and substance, the legality, propriety and the correctness of disposal of land by way of assignment or otherwise are to be decided with reference to Standing Order No.

15. Para (4) of Standing Order No. 15 contemplates two aspects viz., lands that may be assigned and that may not be assigned. Sub-clause (i) of Para (4) of

Standing Order No. 15 reads as follows: “All lands at the disposal of Government except those hereinafter prohibited may be assigned. The assignment of lands shall generally be free of market value except in the case of project affected lands in which case market value shall be collected (emphasis supplied) Sub-clause (ii) of the same para of the Standing Order No. 15 reads as follows:

“The assignment of the following classes of lands is prohibited - (a)

Poramboke (tank-beds, foreshore of tank-beds, cattle stands, grazing lands and reserved lands) (emphasis supplied)”xxxxxx There is a clear prohibition to assign the poramboke tank- beds by the assigning officer and if an assignment is contrary to this prohibition, the same cannot be termed as legal. There will be failure of duty on the part of the officer assigning such a land despite the prohibition. Therefore, even in the normal result of illegal consequences such assignment would become void and unenforceable. The consideration or the object of D-Patta Ex. A-1 being the assignment is forbidden by law and if permitted would defeat the Standing Order No. 15 Para 4(i) and (ii) having force of law and therefore, would not be lawful. It would be a flagrant violation of and repugnant to Sec. 23 of the Indian Contract Act. The operative portion of Sec. 23 of the Contract Act makes such transaction of which the object or consideration is unlawful, void. In other words Ex. A-1 would be void since inception (void ab.

initio) conferring no right on the plaintiff. Her claim of possession over the suit property based on such void document Ex. A-1 could never thus be lawful. The learned Munsif appears to be very conscious and judicious in considering such a legal position and applying it whereas the learned Sub-Judge is not. Surprisingly he has not even adverted to this either to agree or disagree with the learned

Munsif. Therefore, in law, the possession of the plaintiff regarding the suit property even if true as on the date of the suit, is not proved to be lawful.

In view of the conspectus authorities referred above appeal to the present similar facts of the case. It is significant fact emanating from record Ex.B.1 to

Ex.B11 and DW.1 evidence that, The government is the real owner of the plaint schedule property and further Ex.B1 to Ex.B11 clinchingly shows that the government is in possession over the schedule property and it is a government gorge(water canal). The protection wall also constructed in the water canal. Even assuming a while, the plaintiff in encroached the suit land is to be treated as a encroacher and a encroacher is not entitled to any equity in view of the above legal position. So the question of granting any equities does not arise in the suit.

19.As seen further, the law those seems to be well settled that the plaintiff can seek injunction against any person other than the true owner. In the present case the defendants are true owners of the suit schedule property. The plaintiff failed to establish the plea setup by his recording the sources of right, title and possession to him. Even if he possession, his possession in primafacie is unlawful above survey no.150/3 an extent of Ac 0.03 cents. As such he cannot claim any equitable relief. Need less to say, the plaintiff did not discharge his onus, The onus to prove the fact that she reclaimed the schedule property since longtime and his constructed protection wall long ago and he is in lawful possession of the plaint schedule property with out interruption under Ex.A.1 Certified copy of registered sale deed dated 15-04-1993. The plaintiff filed Ex.A.2 Notice Section 7 of Land

Encroachment Act dated ; 04-05-2015, it has come to the notice of under signed that you have encroached upon the government land being a survey no.150/3 and extent of Ac.0.03 cents. The said encroachment is in contravention of the provisions of Andhra Pradesh Land Encroachment act, the authorities are hereby directed to plaintiff to show cause between the period from the date of receipt of the notice as to why the encroachment land should not be resumed. If you failed to show cause or if any explanation offer by plaintiff is not satisfactory, the competent authorities will take necessary action to resume the encroached land in survey number 150/3 as per the provision of this act. The competent authority directed to vacate the encroach the land and remove the encroachments from the date of the receipt of this notice with in period of 30 days. The defendant Tahsildar

Mandasa and Revenue Divisional Officer, Tekkali and District Collector of

Srikakulam followed Under Section 7 of Land Encroachment Act of Andhra

Pradesh.

20.Based on the specific facts and circumstances of the suit and in the accordance with the provisions of Andhra Pradesh Land Encroachment Act the court felt that to did not declare the notice issued on 12-05-2015 is illegal. But the plaintiff prayer relief mentioned date:04-05-2015 Section 7 Land Encroachment

Act Notice. When the government issued notice under section 7 of Andhra

Pradesh Land Encroachment Act, the plaintiff affective alternative remedy by way of appeal before the Revenue Divisional Officer as per the section 10 of Land

Encroachment Act, but plaintiff failed to approach appellate court. As section 14 of

AP Land Encroachment Act, established that civil court has no jurisdiction and cannot question the orders made by the authorities under this act except those affecting land title of the plaintiff. It is also prohibits the courts from granting the injunction against the proceeding initiate by state under this act as per the version of the plaintiff the plaint schedule property consisting survey number 150/4 but the protection wall which is illegally constructed by the plaintiff by encroaching the government gorge an extent of Ac.0.03 cents situated in survey number 150/3. It is clearly indicates that the plaintiff encroached the gorge of the state. The burden lies on the plaintiff to prove his title over the disturbed protection compound wall which is constructed by him but a miserably failed to prove his title over the protection wall.

21.The plaintiff encroached in survey number 150/3 as contented by the defendant, he proved in his evidence and filed documents in Ex.B1 to Ex.B5 and

Ex.B8 to Ex.B11. Ex.B11 photo copies clearly shows that the water canal (gorge) encroached by the plaintiff, the plaintiff main contention is the protection wall constructed at the time of construction of Cashew Industry to protect the land erosion. PW.2 during the cross examination, he admitted that the factory was built in his own site of the PW.1 and also compound walls built in their site and there is a water channel in the western side of the compound wall and the channel belongs to government. The said factory constructed 35 years back and the protection wall constructed 20 years back. Further PW.2 admitted the protection wall constructed 3 years back when the old one was demolished. The counsel for the plaintiff argued that section 7 of AP Service and Boundaries Act clearly shows that the affected property is entitled to notice providing that an opportunity to put for their contention. Further the defending relying on the decision of the Hon’ble Highcourt of Andhra Pradesh in the support of the case of

Karaka Chinnaramayamma VS Government of Andhra Pradesh. The Hon’ble court held that in view of section 14 of Land Encroachment Act, filed by the plaintiff for grant permanent injunction is not maintainable is seeking declaration of title. In the incident case, record shows very clarify that the defendants have not served notice to the plaintiff before the survey. But PW.1 to PW.3 clearly admitted in his cross examination, Mandal and District Surveyors conducted survey construction of the protection wall. The defendant filed some unmarked documents ie. letter addressed to District Collector by the public and farmers of Haripuram Village

Revenue Surroundings survey no.160/3 Gorgaporumbok encroached by the plaintiff and constructed protection wall in the extent of 0.03 cents and the public interest complaint the received that complaint and registered in Prajavani website at Srikakulam district. The name of the complainant is Mavupalli Sriramulu and farmer of Haripuram. Under these contractual facts it can be said by no stretch of

Imagination. The plaintiff come to the court with clean hands by seeking permanent injunction, as such is not entitle any relief. By the aforesaid detailed discussion and reasoning, this court felt that the plaintiff is not entitle equitable relief of permanent injunction restraining the defendants from the interfering with his peaceful possession over the plaint schedule property. From the afore said discussion this court felt that the notice issued by the defendant under section 7 of AP Land Encroachment Act is declared as legal. Hence, Accordingly issues number 1 and 2 are answered in negative and against the plaintiff.

22.Issues No.3 : Whether this court has jurisdiction to entertain this suit as contented by the defendant?

This court has a jurisdiction to entertain this suit contend by the defendant to determine whether a civil case should be filed and considered some factors, assess the strength of the plaintiff claim ensure plaintiff have a valid cause of action and sufficient evidence to support the plaintiff place. Further verify that the court has jurisdiction over the matter that the case is filed in correct venue. Weigh the potential benefits against the potential risk and cost of the litigation. Evaluate the financial cost of the litigation and including court fee and potential damages and considered the emotional and mental strain of litigation on all the parties involved. In the above circumstances this court has jurisdiction to entertain this suit as contented by the defendants. Hence issue number 3 answered accordingly.

22.Issues No.4 : To what relief,

In the result the suit is dismissed and in the circumstances of the case both parties shall bear their own costs.

Dictated to the Typist (outsourcing), corrected and pronounced by

me in open Court this the

Addl Civil Judge ( Junior division) Sompeta.

Appendix of Evidence

Witnesses examined.

For Plaintiff: For Defendants:

PW.1 :Sana Sankara raoDW.1 :Devalla Anand

PW.2 :Kanagala Babu Rao

PW.3 :Mavudilli Dharma Rao

Documents marked

For Plaintiffs:

Ex.A.1:Is the certified copy of registered sale deed dated 15-04- 1993 executed in favour of the father of the plaintiff by Devakidevdi Agarwal

Ex.A.2:Is the Notice dated 04-05-2015 issued by the 2nd defendant to the plaintiff

Ex.A.3:Is the Explanation submitted by the plaintiff on 14-05-2015 to the notice issued by the 2nd defendant.

For Defendants:

Ex.B.1:The letter in R.C.No. 146/2014 dt. 25-06-2014 to the Assistant Director survey and lands records.

Ex.B.2:True copy of the settlement Fair Adangal of Haripuram village of Mandasa Mandal.

Ex.B.3:True copy of FMB in field no. 150 of Haripuram village.

Ex.B.4The original receipt in G.B.R.s. No. 329731/2015/H-7 dated 02/2015.

Ex.B.5The original letter in R.C. No. 215/2015/B/dated 24-02-2015.

Ex.B.6The original received copy of section 7 notice issued under land encroachment Act.

Ex.B.7The original copy of explanation submitted by Sana Sahankar to the Tahsildar Mandasa dated 14-05-2015.

Ex.B.8 Adgangal issued by Mee Seva dated 07-07-2015

Ex.B.9Original survey report issued by the Mandal Deputy Surveyor

Ex.B.10The Original Rough sketch of the plaint schedule property

Ex.B.11The Original Photos along with CD

Addl Civil Judge ( Junior Division) Sompeta.

O.S.52/2017, Dt.05-08-2024, Prl. JCJC/SPT.

- 1 -

IN THE COURT OF PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION) :: SOMPETA.

Present:- Sri A. RAMU, Addl. Civil Judge (Junior Division), Sompeta, (FAC) Principal Civil Judge (Junior Division), Sompeta.

Monday, this the 05th day of August, 2024.

ORIGINAL SUIT No.52/2017

Between :

1)Nagaraju Ramalaxmi (Died), W/o.Apparao, Aged 76 years, Hindu, Household duties, Resident of Door No.2-6-142, Killamma Street, Mandasa village, Mandasa Mandal, Srikakulam Dist.

2)Nagaraju Appa Rao (Died), S/o.Late Sanyasappadu, Aged 98 years, Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

3)Nagaraju Prakasa Rao, S/o.Nagaraju Appa Rao, Aged 64 years, Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

4)Nagaraju Vishumurthy, S/o.Nagaraju Appa Rao, Aged 64 years, Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

5)Nagaraju Satyanarayana, S/o.Nagaraju Appa Rao, Aged 51 years, Hindu, Busiess, Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

6)Nagaraju Sankara Rao, S/o.Nagaraju Appa Rao, Aged 64 years, Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

7)Nagaraju @ Boddapati Hymavath, D/o.Nagaraju Apparao, Aged 59years, Housewife Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

(The Plaintiffs-2 to 7 are added as L.R’s of the Deceased 1st Plaintiff, as per Order in I.A.18/2018, dt.21-02-2018. The Plaintiffs-3 to 7 are the Legal Repre-sentatives of the Deceased 2nd Plaintiff, as per Order in IA.364/2019 dt.09-09-2019).

...Plaintiffs.

And :

1)Brunda Jenna @ Haddi Jenna, S/o.Late Govinda Jenna, Hindu, Bus Cleaner, Aged 36 years, Residing at Door No.8-4-153, Mandasa village & Mandal, Srikakulam District.

2)Krishna Jenna, S/o.Late Bortho Jenna, Hindu, Supplier in a Hotel, Aged 34 years, Residing at Door No.8-4-154, Mandasa Village & Mandal, Srikakulam Dist.

...Defendants-1 & 2.

This suit is coming on 09-07-2024 for final hearing before me in the presence of Sri M.Chalapathi Rao, Learned Counsel for the Plaintiffs; and Sri K.S.Prasad Babu, Learned Counsel for the Defendants; and the matter having been stood over till this day for consideration, this Court delivered the following:

O.S.52/2017, Dt.05-08-2024, Prl. JCJC/SPT.

- 2 -

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

1). This is a suit filed by the Plaintiffs, praying the Court, for granting of

Permanent Injunction, restraining the Defendants, their agents, relatives, associates, servants and workmen, from ever interfering with the Plaintiffs' peaceful possession and enjoyment over the suit schedule property and for Costs of the suit.

2)The brief averments of the plaint are as follows: THAT the plaint schedule house sites belong to the plaintiff which she purchased under two registered sale deeds, dated 21-11-1973 bearing document No. 1593/1973 from

Barthu Jenna, s/o late Bhimmo Jenna of Mandasa and another sale deed dt. 10- 12-1980 bearing document No.1569/1980 from Appanna Jenna, s/o late Gura

Jenna of Mandasa and obtained title and possession of the respective bits from the respective Vendors. Ever since the dates of the aforesaid sale deeds, the plaintiff has been in possession and enjoyment of the plaint schedule properties to the knowledge of all including the Defendants. The plaintiff, her predecessors in title and interest have been in continuous and un-interrupted peaceful possession and enjoyment over the plaint schedule properties for more than the statutory period.

The Defendants have nothing to do with the plaint schedule properties and never claimed any right, title or interest over the plaint schedule properties, on the other hand they admit the title and possession of the plaintiff over the plaint schedule property and never denied the same. While the matter stood thus, the

Defendants taking undue advantage of the old age, helplessness of the plaintiff, have been threatening and proclaiming, that they would trespass into the plaint schedule properties with a dis-honest intention to cause wrongful loss to the plaintiff and to make wrongful gain for themselves. The Defendants are lawless persons and capable of translating their threats into action at any moment. The threatened action of the Defendants is illegal. The plaintiff is a weak person and not in a position to resist the might of the Defendants. Unless permanent

O.S.52/2017, Dt.05-08-2024, Prl. JCJC/SPT.

- 3 - injunction is granted restraining the Defendants, their agents, associates, servants and workmen from ever interfering with paintiff's peaceful possession and enjoyment over the plaint schedule property, the plaintiff would sustain great and irreparable loss which cannot be compensated even by awarding damages.

3).The Defendants filed Written Statement denying the allegations made in the plaint are not true and correct and the plaintiff shall be put to strict proof of all such allegations which are not expressly admittod herein and they are denied.

The Defendant further submits that proviously the plaintiff filed a suit for permanent injunction in respect of the plaint-schedule property by giving wrong boundaries and extent against the father of this Defendant and another before the District Munsif court, Sompeta and numbered as 0.S.124/88 and after trial the suit is dismissed on 02.09.1996 against that an appeal is preferred before the

Senior Civil- Judge Court, Sompeta and numbered as A.S.3/97 and after hearing

both sides the said appeal is also dismissed on 19.07.2000, holding that the plaintiff is not in possession and enjoyment over the plaint schedule property.

That those two judgments of the two Courts are became final and it is operates as-res-judicata between the parties are concomod. Since the 1st Defendant died in that suit, therefore now the suit has been filed against the 1st Defendant and his brother-in-law and now changed with boundaries and extants and filed the present suit with all false allegations. The plaintiff was never in physical possession and enjoyment over the plaint schodule property by the date of filing of the present suit. The documents which are enclosed to the plaint are created for the purpose of the suit and it is not binding on this Defendants at any point of time.

This Defendant submits that his father was having house in Kotha veedhi,

Mandasa, situated in between the house of Sandhya Jenna, W/o.Appanna Jenna and Chandra Jenna. The daughter of Appanna Jenna who is sole legal heir of

Appanna Jenna executed a WILL, dated 20.4.2010 in sound disposing state of mind in favour of 2nd Defendant in respect of 3 cubits of her site situated

O.S.52/2017, Dt.05-08-2024, Prl. JCJC/SPT.

- 4 - neighbouring to the plaint schedule property herein. The said Parvathi Jenna died and later-on, the 2nd Defendant became absolute owner of the property. The

Defendants-1 and 2 alongwith their family members sold away the item No.1 and 2 of the plaint schedule property under a registered sale deed, dt.6.7.16, in favour of Lakshmana Baditya and Trinadhu Pradhano prior to the filing of the suit and the said persons delivered possession of the property thereunder alongwith the property of Parvathi Jenna, succeeded by the 2nd Defendant. TherefoRE

Defendants 1 and 2 are not in possession and enjoyment over the plaint schedule properties herein. The purchasers are in possession and enjoyment over it, therefore they are not the proper and necessary parties to the suit. The boundaries extent of the plaint schedule properties is not correct. There is no cause of action for the Defendants herein. There are no valid grounds to grant injunction in favour the plaintiff, it is only a specultiave suit, therefore the suit is not maintainable under Law, hence, this defendant prays to dismiss the suit with costs.

4) Heard bothsides.

5)Issues are settled for Trial.

1) Whether the Plaintiff are in possession and enjoyment as on the date of suit.

2) Whether the Plaintiff is entitled to Permanent Injunction, as prayed for ?

3) To What Relief ?

6) During the course of Trial, the Plaintiff himself is examined as PW.1 and examined one Nagaraju Siva Kumar as PW.2 and Donaka Polayya examined as PW.3 and got marked Ex.A1 to A4, on his behalf.

7) On the other hand, the Defendants did not lead any evidence on their behalf and accordingly the Defendant-side evidence is closed.

8)Heard Arguments for Plaintiff, but the Defendant Counsel did not submit their

Arguments.

9) Issues No.1 & 2 :

Issue No.1 & 2 in order to avoid repetition of evidence issue No.1 to 3 are taken- up jointly answer them. To substantiate the case of Plaintiff, Plaintiff is himself examined as PW.1/ 7th Plaintiff/Boddepalli Hymavathi examined as PW.1 and filed his chief-affidavit as PW.1 and she stated that her mother is the 1st Plaintiff in the suit and filed this suit

O.S.52/2017, Dt.05-08-2024, Prl. JCJC/SPT.

- 5 - and while the suit is pending her mother was died. Her father and brothers herself were added as L.Rs of 1st Palintiff. Subsequiently, her mother and 2nd Plaintiff were also died 23-09-2019 leaving behind him, the Plaintiff 3 to 7 herself and his brother as his sole- legal we are already on the record and accordingly the same was recorded. PW.1 deposing the Two items of plaint schedule house sites belongs to us which were purchased under Ex.A1,Two Registered Sale Deeds, dt.21-11-1973, bearing

Doc.No.1593/1973, executed by the Bhartu Jenna, S/o.Late bhimmo Jenna of Mandasa and another Sale Deed Ex.A2/ Regd. Sale Deed, executed dt.21-11-1973, bearing

Doc.No.1593/1973, executed Appanna Jenna, S/o.Late Guru Jenna and obtained Title & possession of respective plaint schedule property from the respective vendors. PW.1 further deposing since the date of aforesaid Deeds, her mother, Plaintiffs were in possession and enjoym,ent of the plaints chedule property to the knowledge of all including the Defendants. After death of her mother, the Plaintiff and others in possession of the same. Though our predecessors in title and interest have been in continuous and uninterrupted peaceful possession of the plaint schedule property for more than situated period.

10) Further PW.1/7th Plaintiff, deposing the Defendants have nothing to do with the plaint schedule properties and never claimed right or title over the plaint schedule property. On the other hand, they admitted our title and possession over the plaint schedule property and never denied the same. The Defendants threatened and proclaimed that they would trespass into the plaint schedule property with a dishonest intention to make wrongful loss to the Plaintiff and to make a wrongful gain for themselves, the 1st Plaintiff filed the suit. The Defendants are lawless persons and capable of translating their threats into action at any moment. The Defendants threatened me illegally. We are unable to resist the might of the Defendants. Further,

PW.1 deposing that unless Permanent Injunction is granted, restraining the Defendants, their agents, servants, workmen, from ever interfering with the peaceful possession and enjoyment over the plaint schedule property.

11) In the Cross-examkination by the Counsel for Defendants, admit that the suit is filed by her mother , Ramalakshmi, we are 4 children to my mother, among them, her only daughter, he has not filed any legal heir certificate obtained from Tahsildar,

O.S.52/2017, Dt.05-08-2024, Prl. JCJC/SPT.

- 6 - Mandasa. The suit is filed for wait consists of Two plots, one plot consists of 100 cubits length and 9 cubits width and bounded by East : Road, West :Donaka Yellayya Vacant,

South:house of Ramana murthy; North:house of Govinda and vacant site. 2nd Plaintiff consists 100 cubits of length and 6 cubits of width and bounded boundaries of 1st plot and the Plaintiff did not saty the Survey number or Patta numbe of plaint schedule property. He did not obtain any certtficate from the Tahsildar, Mandasa, to show that her mother is in possession and enjoyment of the plaint schedule site. Further PW.1 admitted he is residing in Killam Veedhi the plaint schedule property is situated at Kotha

Veedhi. He filed Certirfied copy of Sale Deed of Ex.A1, her father purchased site under

Ex.;A1 from one Bartho for Rs.1,800/- for 9 X 100 cubits and one Gopal and some other people stood as attestors in Ex.A1. One Bhujanaga Rao @ Lingaraju Patnaik might be scribed the Ex.A1. We have also filed another Regd Sale Deed extent under Ex.A2 her mother purchased site 6 X 10 cubits for Rs.600/- from one Appanna. PW.1 further admitted that he doesnot know who are the other attestors, but lingaraju Patnaik is the scribe of Ex.A2. PW.1 admitted that he does not know whether her mother filed a suit in

O.S.124/1988 on the file of Court against father of Defendant No.1 and another and the

said suit was dismissed on 02-01-1996, where in the Court declared that it is the father of the Defendant was in possession & enjoyment, but not her mother. Further she does not know whether her mother filed Appeal suit A.S.No.03/1997 on the file of Hon’ble

Senior Civil Judge Court, Sompeta, against the O.S.120/1988 of the Court the Appeal

suit was also dismissed, confirming the lower court. He filed this suit against the

Defendant-1 & 2 further PW.1 denied the suggestions the Defendant have no another site aubiting to the plaint schedule property situated between the site Sandhya Jenna .

Further denied that the daughter of Appanna Jenna, Parvathi Jenna executed a WILL in favour of Defendant No.2, on 24-02-2010 in respect of vacant site located in between the sites of Sandhya Jenna and Chandra Jenna. Thereafter demise of Sandhya Jenna and

Chandra Jenna their site was sold by Defendant in favour of Lakhsmana Bathya and

Trinadh Pradhano under Regd. Sale Deed, dt.06-02-2016. Since then, the Defendants are have not in possession and enjoyment of plaint schedule property and purchasers of said sites are in possession and enjoyment of the suit schedule property. Further PW.1 denied the suggestions we have no right, title, possession over the suit schedule property and it is the purchaser namely Lakhsmna Bthaya and Trinadho Pradhan are in

O.S.52/2017, Dt.05-08-2024, Prl. JCJC/SPT.

- 7 - possession and enjoyment of the suit schedule property. In my opinion, the case of

Plaintiffs cannot be suspected on the mere ground that the Defendants not in possession as per Ex.A1 to A4 possession of Plaintiffs. Unless, there is any other serious doubt arise in the evidence of PW.1. Though the Counsel for the Defendant has cross-examined

PW.1 at length but not obtained any relevant material from the cross-examination of

PW.1 for suspecting the case of the Plaintiffs.

12) Further PW.2 filed chief-affidavit and eschewed his evidence by this Court, on 07- 11-2022.

13) PW.3 Further examined deposing in chief examination the plaint schedule properties are originally the self-acquired properties of 1st Plaintiff Nagaraju Nagalakshmi, who is the wife of 2nd Plaintiff and mother of Plaintiff 3 to 7. The 1st Plaintiff purchased the plaint schedule property under Registered Sale Deeds, Ex.A1 & A2. The 1st Plaintiff died on 23-03-2019 and her husband 2nd Plaintiff Nagaraju Apparao also died and after death of parents, Plaintiffs-3 to 7 legal heirs of the plaint schedule property. Further,

PW.3 deposing the Defendants have nothing to do with thee plaint schedule property and never claimed any right, title over the plaint schedule property. On the other hand, the

Plaintiff have title and possession over the plaint schedule property and never denied the same. The Defendants trespassed into the plaint schedule property with dishonest int3ntion to cause wrongful loss to the Plaintiffs. The Plaintiffs are unable to resist the high handed acts of the Defendants. The Defendants are capable of translating their threats into action. Finally the PW.2 deposed that the plaint schedule property belongs to Plaintiff and we are alone in possession of the plaint schedule property.

14)Further admitting in cross-examination, PW.3 admitted that he was called by the

Plaintiff/PW.1 to give evidence in this Court. He is residing at Devangula vEedhi,

Mandasa and PW.1 is the resident of Killam Veedhi and the plaint schedule property is in

Kotha Veedhi and now it is in possession of PW.1.

15)Furher admitting in cross-examination, PW.2 admitted that he was called for giving evidence in Court he is resident of Mandasa Devangula Veedhi and PW.1 is the resident of Killam Veedhi. Now the plaint schedule property is in possession of PW.1 he cannot say the Patta num,ber or survey numbers. He can say the plaint schedule property length of 100 feet and width of 15 feet and pw.1 got the plaint schedule property from

O.S.52/2017, Dt.05-08-2024, Prl. JCJC/SPT.

- 8 - his parents. Further, he admitted that he does not know when the father of PW.1 purchased the plaint schedule property. He is not the attestor of the Ex.A1 & A2.

16)PW.3 admitted he studied upto old SSLC, he doe not know previously the father of

PW.1 filed suit against the father of Defendant-1 and in respect of same property.

Further PW.3 admitted that the Defendants already sold the plaint schedule property.

Further PW.3 denied the suggestion that the plaint schedule property is a house or vacant site. the plaint schedule property not bel0ngs to plaintiss, belongs to Defendants he deposing false evidence in favour of PW.1. The counsel for the Defendants has cross- examined PW.3 at length, but did not obtain any relevant material from PW.3.

17)On the other hand, the Defendants did not lead any evidence in support of their case. By filing of Written Statement filed by Defendant/D2 and adoption memo filed on behalf of the Defendant/D1. The contents of the Written Statement that the Defendant is that previously the Plaintiff filed the suit in respect of plaint schedule property and extent and against the father of this Defendant aand before District Munsif Court, Sompeta and numbered as 124/1988 and the suit is dismissed on 29-09-1996. 1st Plaintiff preferred

Appeal in Senior Civil Judge Court, Somepta and numbered as A.S.394/1997 on 19-07- 2017. Defendants filed documents in judgment and Appeal Suit Judgment filed, but did not lead any evidence in support of their case as Exhibits not marked on behalf of

Defendant-side. Furthther Defendant submit that the situated in the house of Sandhya

Jana,W/o.Appanna Jenna and Chandra Jana. The daughter of Appanna Jena, who is the sole legal heir of Appanna Jena, executed a WILL, dt.20-04-2010 in sound state mind in favour of 2nd Defendant, in respect of 3 cubits of her site situated neighbouring the plaint schedule property herein. The said Parvathi Jena and later 2nd Defendant became the absolute owner of the property in concern. The Defendants if really absolute owners of the property concern, they should gave evidence and filed WILL, dt.20-04-2010 in supporting evidence by this case.

18).Further, Defendant stating in the Written Statement, the plaint schedule property under Regd. Sale Deed, dt.06-07-2016, in favour of Lakshman Bhatiya and

Trinadh Pradhan prior to filing of this suit and the said persons delivered the possession of the said property thereunder alongwith the property of Parvathi Jena succeeded by the 2nd Defendant. Further, he stating the they are not in possession and enjoyment over the plaingt schedule property and the purchasers in possession and enjoyment of the

O.S.52/2017, Dt.05-08-2024, Prl. JCJC/SPT.

- 9 - plaint schedule property. Therefore, the Defendants are necessary parties in this suit, but the Defendants are stating in the Written Statement the plaint schedule property sold to 3rd person did not file any piece of document in favour of the Defendant in this case.

To prover the said contention of Written statement, Defendants did not produce any piece of document. Since no evidence has been adduced by the Defendants to prover the allegations. It is impossible to believe the version of the Defendant that the suit documents under Ex.A1 to A4 under PW.1 to 3 evidence, the suit schedule property the

Defenadants are not in possession and enjoyment of the plaint schedule property herein even by the date of the suit till today apart from the suit is framed is not maintainable.

19) Therefore, this Court felt that this Court Ex.A1 to A4 shown in favour of the

Plaintiff thereon. Hence, the Court felt that Plaintiffs are in possession and enjoyment over plaint schedule property even by the date of institution of the suit. Hence, accordingly, issues-1 & 2 are answered in favour of the Plaintiffs.

20)Issue No.3 : To what Relief ?

21) In the result, In the result, the suit is DECREED WITH COSTS, by granting

Permanent Injunction, in favor of the Plaintiff and against the Defendants, restraining the Defendants/D1 & D2, their agents, relatives, associates, servants and workmen, from ever interfering with the Plaintiff's peaceful possession and enjoyment over the plaint schedule property.

Typed to my dictation by the Stenographer, corrected, signed and pronounced me, in open Court, on this the 05 th day of August, 2024.

Addl. Civil Judge (Junior Division), Sompeta, (FAC) Prl. Civil Judge (Junior Division), Sompeta.

Appendix of Evidence Witnesses Examined For Plaintiffs :For Defendants : PW.1 : Nagaraju @ Boddapati Hymavathi None. PW.2 : Nagaraju Siva Kumar PW.3 :Donkana Polayya Exhibits Marked For Plaintiffs : Ex A1 : Certified Copy of Registered Sale Deed, Doc.No.1593/1973, dt.21-11-1973. Ex A2 : Certified Copy of Registered Sale Deed, Doc.No.1569/1980, dt.10-12-1980. Ex A3 : Encumbrance Certificate, dt.24-12-2019 for Item No.1, Sy.No.168. Ex A4 : Encumbrance Certificate, dt.24-12-2019 for Item No.2, Sy.No.168. For Defendants : Nil.

Addl. Civil Judge (Junior Division), Sompeta, (FAC) Prl. Civil Judge (Junior Division), Sompeta.

O.S.52/2017, Dt.05-08-2024, Prl. JCJC/SPT.

- 10 - Date of Presentation : 09-06-2017. Date of Filing : 15-06-2017.

IN THE COURT OF PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION) :: SOMPETA.

Present:- Sri A. RAMU, Addl. Civil Judge (Junior Division), Sompeta, (FAC) Principal Civil Judge (Junior Division), Sompeta.

Monday, this the 05th day of August, 2024.

ORIGINAL SUIT No.52/2017

Between :

1)Nagaraju Ramalaxmi (Died), W/o.Apparao, Aged 76 years, Hindu, Household duties, Resident of Door No.2-6-142, Killamma Street, Mandasa village, Mandasa Mandal, Srikakulam Dist.

2)Nagaraju Appa Rao (Died), S/o.Late Sanyasappadu, Aged 98 years, Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

3)Nagaraju Prakasa Rao, S/o.Nagaraju Appa Rao, Aged 64 years, Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

4)Nagaraju Vishumurthy, S/o.Nagaraju Appa Rao, Aged 64 years, Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

5)Nagaraju Satyanarayana, S/o.Nagaraju Appa Rao, Aged 51 years, Hindu, Busiess, Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

6)Nagaraju Sankara Rao, S/o.Nagaraju Appa Rao, Aged 64 years, Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

7)Nagaraju @ Boddapati Hymavath, D/o.Nagaraju Apparao, Aged 59years, Housewife Residing at Door No.2-6-142, Killamma Street, Mandasa village & P.O., Mandasa Mandal, Srikakulam Dist.

(The Plaintiffs-2 to 7 are added as L.R’s of the Deceased 1st Plaintiff, as per Order in I.A.18/2018, dt.21-02-2018. The Plaintiffs-3 to 7 are the Legal Repre-sentatives of the Deceased 2nd Plaintiff, as per Order in IA.364/2019 dt.09-09-2019).

...Plaintiffs.

And :

1)Brunda Jenna @ Haddi Jenna, S/o.Late Govinda Jenna, Hindu, Bus Cleaner, Aged 36 years, Residing at Door No.8-4-153, Mandasa village & Mandal, Srikakulam District.

2)Krishna Jenna, S/o.Late Bortho Jenna, Hindu, Supplier in a Hotel, Aged 34 years, Residing at Door No.8-4-154, Mandasa Village & Mandal, Srikakulam

District....Defendants-1 & 2.

This is a suit filed by the Plaintiffs, praying the Court, for granting of Permanent Injunction, restraining the Defendants, their agents, relatives, associates, servants and workmen, from ever interfering with the Plaintiffs' peaceful possession and enjoyment over the suit schedule property and for Costs of the suit.

O.S.52/2017, Dt.05-08-2024, Prl. JCJC/SPT.

- 11 - The Suit is notionally valued at Rs.15,000/- and a Court Fee of Rs.1,086/- is paid on 23-05-2017, Under Section 26(c) of Andhra Pradesh Court Fee and Suits Valuation Act, 1956, by way of Challan in State Bank of India, Sompeta.

This suit is coming on 09-07-2024 for final hearing before me in the presence of Sri M.Chalapathi Rao, Learned Counsel for the Plaintiffs; and Sri K.S.Prasad Babu, Learned Counsel for the Defendants; and the matter having been stood over till this day for consideration, this Court doth Order and Decree as follows:

:: D E C R E E ::

1).THAT the suit be and the same is hereby DECREED WITH COSTS, by granting Permanent Injunction, in favor of the Plaintiff and against the Defendants, restraining the Defendants/D1 & D2, their agents, relatives, associates, servants and workmen , from ever interfering with the Plaintiff's peaceful possession and enjoyment over the plaint schedule property.

2).THAT the Defendants-D1 & D2 do also pay to the Plaintiff s a sum of Rs.3,332/- towards costs of the suit.

(Copies of the Plaint schedule and Valuation-slip are herewith annexed)

Given under my hand and Seal of the Court, on this the 0 5 t h day of August, 2024.

Addl. Civil Judge (Junior Division), Sompeta, (FAC) Prl. Civil Judge (Junior Division), Sompeta.

Memorandum of Costs

For Plaintiffs Amount For Defendants Amount

Court Fee on plaintRs. 1,086.00Court Fee on Vakalat Rs. 3.00

Court Fee on VakalatRs. 3.00

Court Fee on PetitionsRs. 8.00

Court Fee on ProcessRs. 235.00

Advocate FeeRs. 2,000.00

Costs IncurredRs. 3,332.00Costs IncurredRs. 3.00

No Cost Memos are filed on either-side.

Addl. Civil Judge (Junior Division), Sompeta, (FAC) Prl. Civil Judge (Junior Division), Sompeta. Note : The parties should apply as soon as possible for return of all the Exhibits, which they may wish to preserve, as the record will be liable to be destroyed after expiry of three years period, from the date of Decree & Judgment.

Certified that the Decree is drafted properly.

-Superintendent.

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS AT SOMPETA

Present: Sri. A.Ramu Addl. Judicial Magistrate Of First Class, Sompeta.

Friday, the 10 th day of January, 2025

C.C 281 /2019

Between:

State Represented by Sub Inspector of police, Mandasa P.S.

... Complainant

And:

1. Rapaka Mohana Rao, S/o Ramayya, age 33 years, Gollapalem Village, Mandasa Mandal, Srikakulam District.

2. Rapaka Kesulamma, W/o Ramayya, age 57 years, Gollapalem Village, Mandasa Mandal, Srikakulam District

3. Rapaka Ramayya, S/o late Durgayya, age 68 years, Gollapalem Village, Mandasa Mandal, Srikakulam District

4. Rapaka Hemaraju, S/o Ramayya, age 29 years, Gollapalem Village, Mandasa Mandal, Srikakulam District

…... Accused

This case is coming on 07-01-2025 for final hearing before me in the presence of Learned Assistant Public Prosecutor for State and of

G.S.Sailendra advocate for the accused No. 1 to 4 and upon hearing both sides and having stood over till this day for consideration, this court delivered the following.

JUDGMENT

The Sub-Inspector of Police, Mandasa laid a charge sheet against the accused No. 1 to 4 for the offense charged Under section 498-A, of Indian

Penal Code, 1860 and Section 3 and 4 of Dowry and Prohibition Act 1961.

2

2. The Brief case of the prosecution as per the charge sheet is as follows:

Accused No.1 is working in Indian Army married LW.1-Rapaka Padma on 18-02-2011 as per their caste customs and received formal dowry. They lived happily in the joint family of Accused No. 2 to Accused No.4 and begot a son and daughter. Subsequently, accused No.1 with the instigation of accused No.2 to 4 harassed the LW.1 mentally and physically for bringing

additional dowry of Rs 2,00,000/-. She bore the harassment with a fond

hope that there would be a change in their attitude one day or other. But the accused couldnot ment their behavior. No alternative she took her children to her parents at Hyderabad. LW.2-Jankala Chinna Raomade negotiations with the accused to send back LW.1 and her children to save the marital tie and their family status, then raised disputes before LW.s 3 to

Lw.6. The accused gave their assurance before LW.3 to Lw.6 that they would see LW.1 and their children well. But they not bring back LW.1 and her children, not provided necessary amenities and left them and thereby casused mental agony. LW.2 made further negotiations to send back LW.1 and her children to accused No.1. But Accused No.1 to 4 not pay interest to bring back LW.1 and her children and left to her fate. No alternative LW.1 accompanied by LW.2 turned up to Mandasa police station on 13-05-2019 at 21.30 Hrs and presented a written report LW.7-V. Naga Raju, former Sub

Inspector of Police, Mandasa P.S registered a report as FIR in Crime No 60/2019 U/sec 498-A of IPC and Section 3 and 4 of Dowry and Prohibition

Act 1961. During course of investigation LW.7 recorded the statement of

LW.s 1 to 6 and established the prima facie. LW.8-Ch. Prasad, Sub Inspector of Police, Mandasa served notices U/sec 41-A CrPc on accused No.1 to 4 on 14-07-2019 and obtained their explanation bonds and filed charge sheet against the accused No.1 to 4 for the offence U/sec 498-A of IPC and

Section 3 and 4 of Dowry and Prohibition Act 1961. Hence the charge.

3.After appearance of accused No. 1 to 4, case copies was furnished to them as required U/sec 207 of CrPC.

4.Accused No. 1 to 4 were examined Under section 239 of Criminal

Procedure Code and the substance of accusation for the offence punishable

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3

Under section 498-A, of Indian Penal code and Section 3 and 4 of Dowry and

Prohibition Act 1961. It was read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

5.In the trial afforded by both parties, prosecution cited 8 witnesses.

Examined P.W1- A. Seshagiri, PW.2- Dasari Tata Rao, PW.3- Narthu Divakar,

PW.4- Rapaka Padma, PW.5- Jennala Chinna Rao, PW.6-V. Naga Raju, former,

Sub Inspector of police Mandasa, and Ex.P1- 161 CrPC statement of PW.1,

Ex.P2- 161 CrPC statement of PW.2, Ex.P3- 161 CrPC statement of PW.3,

EX.P4: Police report Ex. P5: FIR in Crime No. 60/2019 were marked and the remaining witness LW.4- Narthu Purushottam, LW.8-Ch. Prasad, Sub

Inspector of police Mandasa, given up by the prosecution, hence prosecution evidence closed.

6.After completion of prosecution evidence, accused No. 1 to 4 were examined Under section 313 of Code of Criminal Procedure Incriminating material was read over and explained to them for which they denied and reported no defense and accordingly the defense side evidence was closed.

7. Then Heard arguments of the Learned Assistant Public Prosecutor for the prosecution and the Learned counsel for the accused no.1 to 4.

8. Now, the point for determination are:

Whether the prosecution established the guilt against the accused no.1 to 4 for the offence Under section 498-A of Indian

Penal Code, 1860 and Section 3 and 4 of Dowry and prohibition

Act beyond all reasonable doubt ?

9. Point :

For proving the guilty of accused no.1 to 4 for the alleged charges the prosecution has to prove that PW.1 was subjected to cruelty by the accused no.1 to 4 for additional dowry. In the instant case LW.1 : Rapaka

Padma examined as PW.4 due to witness summons served on 13-01-2020 by the prosecution and the same not present in this court. Hence the

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4 predecessor officer closed the evidence and issued summons to LW.2 to

LW.8. The learned Assistant Public Prosecutor filed recall petition for adducing of LW.1. LW.1 recalled and examined as PW.4 as per order in

Crl.MP.77/2022 dated : 05-08-2022. PW.4 is the victim and wife of the

accused no.1. She was deposed in her evidence that Accused no.1 is the husband and her marriage was performed on 18-02-2011. Her husband worked as Indian army, they blessed with one male and one female children. After marriage of some days Accused no.1 to 4 harassed her mentally and physically to brought money for expenditure of the marriage.

After one year her husband beat her with hand and kicked her with legs. At the time of incident she was pregnant. Accused no.1 used to hear her mother – in -law’s advises. Then accused no.1,2 and 4 necked out from their house. Further PW.1 deposing that accused no.1 never provide means and welfare at the time of her pregnant. She go to food for government schools.

All the above discussed with accused no.1. Accused no.1 replied that he is not willing to live with her together. Then she demanded divorce on 28 – 11- 2011 after she blessed one son on 28-11-2011 her husband was not taken any care herself and her child. Total laboring expenses bared her parents.

After five months of born child she went to Tirupathi Temple along with accused no.1 to 3 and left alone her and sometimes she found accused no.1 to 3 at Tirupathi Temple. Then herself, born child and accused no.1 to 3 were went to their village. At the time disputes between herself and accused no.1 she went to her parents house. Above incident and disputes informed to her parents at secundrabad then they supported her. After some days her husband transferred to Secundrabad in the year 2011 and visited her parents house and stayed one and half year at her parents house. The 1 ½ years expenditure bared by the her parents. Again herself and accused no.1 quarreled then accused no.1 beat her on body and she has sustained injuries. After her disputes she lived together happily in army quarters Secunderabad. After the born of second child her husband demanded additional dowry of Rs.20,00,000/- for the purpose of purchasing one flat at Secunderabad. But her parents did not gave demanded

additional dowry an amount of Rs.20,00,000/- that the time accused no.1

closed the doors and locked the quarters and necked out her along with her child. At the time she was pregnant. Then she gave a report to Army unit.

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5

The army unit advised her firstly delivered after that actions will be taken against the accused no.1. After the born of second baby her husband transferred Jammu & Kashmir, Accused no.1 not informed her about the transfer. The Secunderabad army authorities informed her that her husband married another woman that woman had a pregnant. PW.1 further deposing that after 10 days she went Andhra Sub area, Telangana and gave a report against the Accused no.1. Then her husband came back to Secunderabad.

Herself and accused no.1 went to army authorities gave a counseling and advised to her monthly maintenance of Rs.10,000/- for basic needs to be given. The accused no.1 gave a maintenance amount of Rs.15,000/-.

Accused no.1 went to Jammu & Kashmir for duty. At the time lived happily between the period of 2016 to 2018. On 02-05-2018 again disputes arised between herself and accused no.1. The same was informed to the village elders of the Gollapalem over phone. After that herself and her family went to Gollapalem village on the night 10.00 PM her husband beat with hands all over her body kicked legs and pulled out her hair and dragged inside the house. At the incident one Jayamma rescued her in the hands of the accused no.1. On the next day morning she made a complaint before the village elders but village elders did not taken any action and advised her to go to police station and give a report against the Accused no.1. After complaint given to police accused no.1 compromised with her in presence of the village elders and agreed to take her and her children to Delhi and accused no.1 gave his ATM card for the purpose of the family expenses.

After some days accused no.1 blocked the ATM Card after credit of children education allowance. For the above incident again disputes raised between her and accused no.1. In the year 2019 she went to police station and gave a Ex.P.4 report. She was examined by the police.

10. Further PW.1 admitted in her Ex.P.4 and her 161 Cr.P.C statement to police that accused no.1 demanding dowry in the advises of the Accused no.2 to 4. But in the chief examination and cross examination she deposed that in the year of 2014 accused no.1 demanded dowry an amount of

Rs.20,00,000/- but she cannot said the date and month demanded by the accused no.1. In the year of 2014 she sent a letter to Army authorities,

Secunderabad against the accused no.1 at that time accused no.1 was on

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6 duty at Jammu & Kashmir. PW.4 corresponding a letter to Army Authorities,

Secunderabad that she did not mentioned about accused no.1 demanded

additional dowry. Further PW.4 deposing in chief examination accused no.1

locked the door of the army quarters and necked out her in the year of 2013, but above incident not stated in the Ex.P.4 report and 161 Cr.P.C statement. Further PW.4 filed maintenance case against Accused no.1 in MC

No.58/2019 at Hon’ble Family Court, Malkhajagiri. In the MC not mentioned accused no.1 demanded additional of Rs.20,00,000/-. Furtherly she clearly admitted above the offence happended at Secunderabad Army Quarters but PW.4 gave a report to Police station at Mandasa 08-05-2018 at 12.00 noon. But PW.4 gave a report to police station of Mandasa on 13-05-2018 at 21.30 hours and presented a written report to PW.6. Further she admitted in chief examination accused no.1 blocked the ATM in the year of 2019. After cancellation of the ATM during the vacation period she came mandasa and gave Ex.P.4 report. There by, PW.4 did not depose about the harassment of the accused no.2 to 4 to her for demanding of additional dowry. PW.1 deposed complete different version with regarding to the harassment of the accused no.1 to 4.

11.In the instant case LW.6 Anadala Seshagiri Rao, examined as

PW.1 and he deposing that he served as a Sarpanch to the Mandasa

Panchyat. Accused no.1 married PW.4 about 6 to 7 years prior to registering the complaint. They bigot two children and about two to three years ago on one day village elder brought by PW.4 along with her father met him and complained that accused no.1 not looking PW.4 and their children well and requested to resolve the issue. After that he is called village elders and

Accused no.1 to 4 and father of the PW.4. He held a meeting participants by the said meeting he gave a advise and counseling to PW.4 and accused no.1 to adjust themselves in their life in view of their children. But they left obliging his advice. After two or three months again conflict between PW.4 and Accused no.1 as continued village elders and PW.4 with her father approached him for solving the dispute. At the time he gave a advise to the elders of the Gollapalem village to resolve dispute between PW.4 and accused no.1. They held counseling and resolving the marital issue between

PW.4 and Accused no.1 but he did not follow the said meeting. PW.1 further

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7 deposing that after three month on one day in the morning hours PW.4 came to me and reported that the accused no.1 family members assaulted her and not allowed her to stay in her in-law’s house. Then he expression inability to do further counseling and advise her to large a report. They might be executes of the documents holding mediation by him.

12.At this stage the learned APP requested the court to treat the witness as hostile claiming he resained from previous statement made

before the police and APP is permitted to cross examined the witness to put

such questions. But PW.1 denied the suggestions of learned APP. Further

PW.1 admit in cross examination he cannot say the dates, months and year of PW.4 and PW.5 approached to him for resolve the marital disputes and mediation. Further he don’t know the living of PW.1 with accused no.1 at

Gollapalem village. PW.1 further admitted that the date of his examination by the Sub-Inspector of Police Mandasa. There by PW.1 has stated material omissions against the offence committed by the Accused no.1 to 4.

13.Further evidence of PW.2 and PW.3 deposing their evidence that they don’t know anything about this case and police did not examined them and they never acted as a mediator or elder for marriage disputes of PW.4 and accused no.1. They are turned hostile and did not the support the case of prosecution. The learned APP cross examined them lengthily and not obtained any evidence in favour of the case of the prosecution.

14.Further PW.5 deposing that PW.4 is his daughter. Accused no.1 is his son-in-law. Thirteen years ago his daughter’s marriage performed with accused no.1. At the time of marriage he gave dowry but he don’t know the exact amount and 2 tulas gold and one ring. His daughter and accusedno.1 lived together happily in Gollapalem for one year. After his daughter born first baby came to his house at secundrabad. At the time accused no.1 promised to take quarters separately to live with her daughter. But quarter not taken by the accused no.1. His daughter and accused no.1 stayed in his house for two years. His daughter conceived second issue, accused no.1 went to Jammu & Kasmir by left his daughter in his house. After somedays accused no.1 came to his house and compromised in front of the elders at

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8 for two three times but accused no.1 did not take his daughter at posting place. Police examined him.

15.PW.5 admitted in cross examination, he cannot say date, month and year when the PW.4 gave a report to Mandasa Police station against the accusedno.1 to 4. At the marriage of the Accused no.1 and PW.4, Marriage list of the saresaman gave to accused no.1 by the elders. He maintained the presentation including the dowry. He did not gave the written copy of dowry and sare saman list to police. There by PW.5 also did not deposing anything in his evidence about the harassment of the accused no.1 to 4 towards PW.4 for additional dowry of Rs.20,00,000/- and other cruelty towards PW.1.

16.Further PW.6 is the investigation officer and he deposed that he registered case on 13-05-2019 in crime number 60/2019 punishable Under section 498-A of IPC and Section 3 & 4 of Dowry Prohibition Act, based on the Ex.P.4 report. He was examined PW.4 and PW.5 at police station. Further deposed during the investigation he visited scene of offence on 14-05-2019 examined remaining witnesses PW.1 to PW.3 and LW.4: Narthu Purushottam and recorded their statements. Further Investigation handed over to LW.8

Ch.Prasad. LW.8 served 41-A Cr.P.C notice to accused no.1 to 4 and obtained their explanations on 14-07-2019 and filed chargesheet against accused no.1 to 4. When any case is registered against the any accused, the investigation officer has power to arrest the accused and serve 41-A Cr.P.C notice to said accused as per the procedure provided in Cr.P.C, if investigation officer served 41-A Cr.P.C notice to any accused in any case. It does not mean that the accused committed the alleged offence. Thereby this court cannot come to conclusion that the accused no.1 to 4 have harassed and demanded additional dowry to PW.4. On the mere evidence of

LW.8 : Ch.Prasad that he served notice under section 41-A Cr.P.C to accused no.1 to 4. The evidence of LW.8 givenup by the learned assistant public prosecutor. In the absence of any reliable evidence.

17.Further, learned assistant public prosecutor submit that the accused no.1 to 4 as harassed PW.1 for the brought of additional dowry and

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9 also harassed her to live her and the evidence of PW.4 is corroborated by the other evidences and adducing of direct evidence is not necessary in the offence of cruelty as harassment. Cruelty might be occurred with in four walls and the prosecution as proved the guilty of accused no.1 to 4 for the offence of cruelty behind all reasonable doubt. On other hand the counsel

for the accused no.1 to 4 submitted that a mere demand of dowry is not

sufficient unless harassment caused her to commit suicide to cause grave injury or danger to her life and the prosecution did not produce any independent evidence about the demanding of dowry Accused no.1 to 4. In this regard, it could be pertinent to maintain section 498-A of Indian Penal

Code,1860. Section 498-A provides that “ Who ever, bring the husband or relative of the husband of woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine”.

Explanation :

For the purposes of this section , cruelty means

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

18.Now coming to the present case PW.4 deposed that accused no.1 married her and then accused no.1 to 4 demanded her for bringing dowry .

Even, if the version of PW.4 is true that accused no.1 to 4 have demanded her to bring dowry. In the absence of coercion cannot be help to cruelty with in the meaning of explanation to section 498-A of Indian Penal Code,1860.

Further Section 498-A of the Indian Penal Code,1860 would be applicable to a case where husband or relatives of husband of woman subjects woman to cruelty in order to understanding meaning of expression cruelty as envisaged under section 498-A of IPC. There must be such conduct on the

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10 part of the husband or relatives of husband of woman, which is of such nature is cause to woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) for woman. But,

The present case the prosecution has failed to adducing any evidence for showing the accused no.1 to 4 harassed and demanded dowry to the PW.4

Under section 498-A, Section 3 & 4 of DP Act. Hence, by the aforesaid detailed discussion this court hold that the prosecution has failed to adducing sufficient materials for establishing that PW.4 was subjected to cruelty and demanding dowry by the accused no.1 to 4. Hence, this court felt the prosecution has failed to prove the guilty of the accused no.1 to 4 for the offence punishable under section 498-A of Indian penal Code,1860 and Section 3 & 4 of DP act behind all reasonable doubt. Hence point is answered against the prosecution.

19. In the result the Accused No.1 to 4 are found not guilty for the off ence punishable U/s 498-A of Indian Penal Code, 1860 and Section 3 & 4 of Dowry Prohibition Act,1961. Hence the accused no.1 to 4 are acquitted U/s 248 (1) of Criminal Procedure

Code,1973 for the above said off ences. Accused no.1 to 4 are order to continue on bail for above six month and directed to execute bond of Rs.10,000/- (Rupees Ten Thousand Only) each under section 437-A of Criminal Procedure Code,1973 to appear

before the appellate court if any appeal is preferred

Dictated to typist (out Sourcing), typed by him, corrected and

pronounced by me in the open court on this the 10th day of January 2025.

Sd/- Sri A. Ramu

Addl. Judicial Magistrate Of First Class, Sompeta.

Appendix of Evidence

Witness Examined

For Prosecution: For Defence:

PW.1:A. Seshagiri-Nil-

PW.2:Dasari Tata Rao

PW.3:Narthu Divakar

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11

PW.4:Rapaka Padma

PW.5:Jennala Chinna Rao

PW.6:V. Naga Raju, former Sub Inspector of police

Mandasa,

Exhibits Marked

For Prosecution: For Defence:

Ex.P1:161 CrPC statement of PW.1 -Nil-

Ex.P2: 161 CrPC statement of PW.2

Ex.P3:161 CrPC statement of PW.3

Ex.P.4:Police report

Ex.P.5:FIR in Crime No. 60/2019

Material Objects :

Nil

Sd/- Sri A. Ramu

Addl. Judicial Magistrate Of First Class, Sompeta.

// True Copy //

Addl. Judicial Magistrate Of First Class, Sompeta.

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12

CALENDAR AND JUDGMENT

SRIKAKULAM DISTRICT

Calendar Cases tried by

Additional Junior Civil Judge-Cum-Judl. Magistrate of Ist Class,

Sompeta.

Date of Date of Date of Date of Date of Date of Date of

offence Report Apprehe Release on Comme Closure Sentence

or nsion of bail nceme of trial or order complai accused nt of nt trial

Prior to 13-05-14-07-41-A CrPc 31-10-06-01-10-01-2025 13-05-20192019notice20192025 201914-07-2019

Place of Offence: Gollapalam Village, Mandasa Mandal

Calendar Case : 281/20 on the file of Addl Judl. Magistrate of I Class No.Court, Sompeta. In Cr.No. 60/2019 of Mandasa Police Station.

Name of the : State Represented by Sub-Inspector of police, complainantMandasa Police Station.

Name of the Daughter’s Ag Religio Village Mandal

accused Name e n

Rapaka Mohana Ramayya33HinduGollapalemMandasa Rao

Rapaka Ramayya57HinduGollapalemMandasa Kesulamma

Rapaka RamayyaLate Durgayya68HinduGollapalemMandasa

Rapaka Hemaraju Ramayya29HinduGollapalemMandasa

Offences: Under Section 498-A of Indian Penal Code and Section 3 and 4 of DP ACt

Finding: Accused No. 1 to 4 are found not guilty.

Sentence of order:

In the result the Accused No.1 to 4 are found not guilty for the offence punishable U/s 498-A of Indian Penal Code, 1860 and Section 3 & 4 of Dowry Prohibition Act,1961. Hence the accused no.1 to 4 are acquitted U/s 248 (1) of Criminal Procedure

CC 281 of 2019 in AJMFC/SPT

Date: 10-01-2025

13

Code,1973 for the above said off ences. Accused no.1 to 4 are order to continue on bail for above six month and directed to execute bond of Rs.5,000/- (Rupees Five Thousand Only) each under section 437-A of Criminal Procedure Code,1973 to appear

before the appellate court if any appeal is preferred.

Sd/- Sri A. Ramu

Addl. Judicial Magistrate Of First Class, Sompeta.

Copy Submitted to The Hon'ble I Addl. District and

Sessions Judge, Srikakulam.

// True Copy //

Addl. Judicial Magistrate Of First Class, Sompeta.

CC 281 of 2019 in AJMFC/SPT

Date: 10-01-2025

O.S.No. 52 of 2016

Dt. 10.01.2025

IN THE COURT OF ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) SOMPETA

Present:- Sri. A.RAMU,

Addl Civil Judge (Junior Division) Sompeta.

Friday, this the 10th day of January, 2025

O.S.No. 52 of 2016

Between:

1. Karri Syamanthi, W/o Chandrayya, Age 61 years, Hindu, House hod duties, Door No. 1-157, Turaka Sasanam Village, Baruva R.S. post, Sompeta mandal, Srikakulam District. Plaintiff..

And :

1. Voona Keasava Rao ( Died )

2. Voona Ratnam, W/o late Kesava Rao, age 59 years, House hold duties, Main Road, Samantya Ramachandrapuram Village, Kanchili mandal, Srikakulam District. ( Died )

3. Voona Rajesh, S/o late Kesava Rao, Age 28 years, Business, Samantya Ramachandrapuram Village, Kanchili mandal, Srikakulam District.

4. Tangudu Swapna, Age 26 years, House hod duties Jadupudi Village, Kanchili mandal, Srikakulam District.

(The Defendants 2 to 4 are the Legal Representatives of Deceased 1st Defendant are added as per order in I.A 01/2019

dated 31-01-2019)

Defendants.

This suit is coming on this day on 02-01-2025 for fi nal hearing

before me in the presence of Sri V.C. Patnaik Advocate for plaintiff ,

and K. Santhi Prasad Babu Advocate for the Defendant No.3; defendant No.2 also died, defendant No.4 set exparte on 31-07- 2019 and the same having stood over for consideration till this day, this court delivered the following:

O.S.No. 52 of 2016

Dt. 10.01.2025

JUDGMENT

This is the suit filed by the plaintiff against the defendants for a grant permanent injunction restraining the defendants, their agents, servants and workmen from ever occupying the plaint schedule Rajamargam and raise permanent structure therein and for costs of the suit.

2. Brief averments of plaint are :

The vacant site measuring 15 feet on East-West and 87 feet on North-

South was the property of Gujjala Rambabu, s/o late Krishna Rao of

Srikakulam Town. He was in possession and enjoyment of the said vacant site with absolute rights. While so, he sold the said property to Karri Ravi

Prasad, S/o Chandrayya, working as a Medical Officer in United Kingdom under a registered sale deed 05-09-2012 (Fifth September Two Thousand

Twelve) for Rs. 1,45,000/- (Rupees One Lakh Forty Five Thousand). Since the vendee is in united Kingdom, his mother Karri Syamanti, the plaintiff herein acted as an agent for the sale deed executed. The plaintiff obtained possession of the property immediately after execution of the sale deed.

The property which is Ac.0-1.0 cents in extent denoted by Survey

No.303/2P and Patta No. 509 was the property of Neyyila Janardhana, S/o

Raghunadh of S.R.C. Puram village. He was in possession and enjoyment of the same with absolute rights. While so, he conveyed the said land which is also a vacant site measuring 52½ feet on East-West and North-South 88 feet towards Eastern side and 80 feet towards western side in an average of 84 feet. The said vacant site was sold by Neyyila Janardhana to the plaintiff under a Registered sale deed dated 11-10-2010 (Eleventh October

Two Thousand Ten) for Rs.4,86,000/- (Rupees Four Lakhs Eight Six

Thousand). The plaintiff obtained possession of the property immediately after the sale transaction.

2.1. The vacant site which is Ar 0-48. ¾ cents in extent ie., 2359 square yards was originally the property of one Tarun Kumar Agarwal, s/o Ganesh

Kumar Agarwal. It was the self acquired property of Tarun Kumar Agarwal as he purchased the said property under a Registered sale deed dated 22- 06-1990 (Twenty Second June Nineteen Ninety) vide document bearing the

O.S.No. 52 of 2016

Dt. 10.01.2025

Regd. No. 1086/1990. He executed a Registered General Power of Attorney in favour of Naresh Kumar Agarwal, s/o Seedan Das Agarwal of Kanchili. The said power of attorney holder Naresh Kumar Agarwal sold the said vacant site of Ac. 0-48. ¾ cents to Karri Ravi Prasad under a Registered sale deed

dated 30-07-2012 (Thirtieth July Two Thousand Twelve ) for Rs.23,59,500/-

(Rupees Twenty Three Lakhs Fifty Nine Thousand Five Hundred). The sale consideration was paid by way of 2(Two) cheques drawn in favour of Naresh

Kumar Agarwal, the power of attorney holder, Karri Ravi Prasad, the vendee now employed as Medical Officer in U.K. his mother Karri Syamanthi, the plaintiff herein acted as an agent and purchased the property. The plaintiff obtained possession of the property immediately after the sale transaction.

The plaintiff and her son Ravi Prasad have got Ac.0-61. ¾ Cents. All the properties covered by the above sale deeds are contiguous and with a common boundaries.

2.2. The plaintiff and her son Ravi Prasad are enjoying the rajamargam which is 15 to 20 feet in width running from N.H.5 road to Kanchili road and the length of rajamargam is nearly 2 kilo meters. The plaintiff's property is touching nearly about 80 feet in length. The said rajamargam is described in the plaint schedule as Northern boundary and it is in existence since more than 20 years and it is only a path-way for the plaintiff for ingress and egress to any place of their property. The plaintiff is the mother of Karri

Ravi Prasad and she is looking after his properties. The plaintiff filed the suit on her behalf and on behalf of her son Ravi Prasad. Naresh Kumar Agarwal as a power of attorney holder for Tarun Kumar Agarwal sold a vacant site which is measuring 52 feet on East-West and 30 feet on North-South under a registered sale deed dated 05-03-2012 for Rs.1,73,500/- to Jallu Kiran, s/o

Jaggu Naidu of Chinna Sreerampuram village. In the said sale deed is also the northern boundary is shown as a road. The said vacant site is on the south of the plaint schedule rajamargam. The Original Registered Sale

Deeds of the plaintiff are pledged with the State Bank of India, Sompeta in a loan borrowed by the plaintiff's son.

O.S.No. 52 of 2016

Dt. 10.01.2025

2.3. The defendant has nothing to do with the plaint schedule rajamargam and yet he is trying to occupy the rajamargam and making preparations to raise permanent structures thereon against the interests of the plaintiff and her son. So, the suit is filed for a permanent injunction, restraining the defendants from making any permanent structures in the plaint schedule rajamargam. Hence the suit.

3. The deceased defendant no.1 filed written statement, submitted that It is not true to say that the vacant site measuring 15 feet on East west and 87 feet on North-South was the property of Gujjala Rambabu, s/o late Krishnarao of Srikakulam Town, he was in possession and enjoyment of the said vacant site with absolute rights, while so, he sold the said property to Karri Ravi Prasad, s/o. Chandrayya, working as a Medical officer in United

Kingdom under a registered sale deed dated 5.09.2012 for Rs 1,45,000/- (Rupees One lakh fourty five thosand rupees) Since vendee is in United

Kingdom his mother Karri Syamanthi the plaintiff herein acted as an agent for the sale deed executed, that the plaintiff obtained possession of the property immediately after execution of the sale deed, and that the property which is Ac.0.10 cents in extent denoted by Survey No.303/2P and patta No. 509 was the property of Nayyila Janardhana, s/o. Rajhunadha of

B.R.C. Puram village, that he was in possession and enjoyment of the same with absolute rights, while so, he conveyed the said land which is also a vacant site measuring 52 ½ feet on East-West and North-South 88 feet towards Eastern side and 80 feet towards western side in an average of 84 feet. The said vacant site was sold by Neyyila Janardhana to the plaintiff under a registered sale deed dated 11.10.2010 (Eleventh October two thousand ten) for 4,86,000/- (Rs. four lakhs eighty six thousand) and the plaintiff obtained possession of the property immediately after the sale transaction and that the vacant site which is A2.0.48 3/4 cents in extent le.

2359 square yards was originally the property of one Tarun kumar Agarwal, s/o Ganesh Kumar Agarwal it was the self acquired property of Taru Kumar

Agarwal as he Purchased the said property under a registered sale dead dt.

22.06.1990 (twenty second June, Nineteen Ninety) vide document bearing

No. 1086/1999, he executed a registered general power of attorney in favour of the Naresh Kumar Agrarwal S/o soodandas Agarwal of Kanchili.

O.S.No. 52 of 2016

Dt. 10.01.2025

The said power of attorney holder Naresh Kumar Agarwal sold the said vacant site of Ac.0.48 3/4 cents to Karri Ravi Prasad under a registered sale deed dated 30.07.2012 for Rs 23,59,500/- the said consideration was paid by of two cheques drawn in favor of Naresh Kumar Agarwal. the power of attorney holder. Katri Ravi Prasad, the vendee was now employee the as

Medical officer in u.k. his mother Karri Syamanthi, the plaintiff acted as an agent and purchased the property, the plaintiff obtained possession of the property immediately after the said sale transaction, and the plaintiff and her son Ravi Prasad have got Ac.0.61 ¾ th cents. All the properties covered by the above sale deeds are contiguous and with common boundaries and that the plaintiff and her son Ravi Prasad are enjoying the rajamargam which is 15 feet to 20 feet in width running from N.H.5 road to Kanchili road and the length of rajamargam is nearly 2 kilometers. That the plaintiff's property is touching nearly about 80 feet in length. The said Rajamargam is described in the plaint-schedule as northern boundary and it is in existence since more than 20 years and it is only a path way for the plaintiff for ingress to any place of their property.

3.1The said Naresh Kumar Agarwal as a power of attorney holder for

Tarun Kumar Agarwal sold a vacant site which is measuring 52 feet on East-

West and 30 feet on north-south under a registered sale deed dated 05.03.2012 for R.s 1,73,500/- to Jallu Kiran s/o. Jaggunaidu of Chinna

Srirampuram village. In the said sale deed is also the northern boundary is shown as a road. The said vacant site is on the south of the plaint-schedule rajamargam, and that the original registered sale deeds of the plaintiff are pledged with the State Bank of India, Sompeta in a loan borrowed by the plaintiff's son, that the defendant has nothing to do with the plaint-schedule rajamargam and yet he is trying to occupy the rajamargam and making preparations to raise permanent structures there on against the interests of the plaintiff and her son, so the suit is filed for a permanent injunction, restraining the defendant from making any permanent structures in the plaint-schedule properties Rajamargam, all these allegations not true and correct. This defendant submits that the all the sale deed properties are not the common boundaries. besides the patta No. and Serial No. are different.

More so, it does not tallies with the plaint-schedule property herein. This

O.S.No. 52 of 2016

Dt. 10.01.2025

defendant categorically denied the right, title and possession of the plaint- schedule property of the plaintiff apart from the common way in which the plaintiff is claiming the right over it. over the defendant site in question.

More so, the plaintiff or his family members are no right title over the defendants registered sale deed dt.31.12.2012 site in question is concerned.

3.2This defendant submits that he purchased a vacant site in

S.No.303/11 in Baliyaputtuga village in Western row of Kanchili NH.5 road and near M.R.O. Office in Kanchili Mandal. East-West 50 feet and North

South 15 feet total 750 square feet from Tarun Kumar Agarwal and Naresh

Kumar Agarwal under a registered sale deed dt. 31.12.2012 for R.s.

83,500/- (eighty three thousand and five hundred) and possession is also delivered thereunder from their vendors and from that day onwards the defendant is in possession and enjoyment of the said sale deed property in question. Nobody can deny that fact. Later on the defendant laid a foundation over the said sale deed site. Nobody has made any objection at the time of laying the foundation in the plaint-schedule property herein. The plaint schedule property is not concerned in all aspects in the patta No.,

S.No and boundaries are concerned.

3.3This defendant submits that the suit itself is not maintainable in law, thesale deed properties are different. schedule, Patta No., S.No and boundaries besides the vendors are different. The single suit is not maintainable under law. More so, the plaintiff is not the agent of her son

Karri Ravi prasad and there is no such document has been filed the plaintiff to show that she is looking after and maintaining the properties of her son.

There is no agency available with son and mother under law. The court fee paid is not correct. The Hon'ble court has no jurisdiction to entertain the suit. This defendant submits that the sale deeds of plaintiff are silent about the path way through defendant's site. Apart from the plaint schedule is silent about the patta No. and S. No. is concerned the plaintiff or her son are no right to claim any thing from the defendant sale deed site in question. The plaintiff has no easement right of way through the

O.S.No. 52 of 2016

Dt. 10.01.2025

defendant's site at any point of time, along with her son and others. All the sale deeds which are referred in the plaint are not genuine and correct sale deeds.

4. The defendant no.3 also filed written statement on dated 18-04- 2019 submitted that this defendant is adopting the written state- ment filed by the 1st defendant in the above suit. This defendant is categorically denying the plaint averments in the above suit. This defendant is also denying the right, title and possession of the plaintiff or her family members over the plaint-schedule properties herein. This defendant submits that defendant no.1 purchased a vacant site in S.No. 303/11 in

Balyaputtuga village in western row of Kanchili Mandalam NH.5 road and near M.R.O. Office, in Kanchili Mandal, East-West 50 feet and North x south 15 feet total 750 square feet from Tarun Kumar Agarwal and Naresh Kumar

Agarwal under a registered sale deed dated 31.12.12 for R.s. 83,500/- and possession is also delivered thereunder from their vendors of defendant no.1 and from that day onwards defendant no.1 is in possession and enjoyment of the said sale deed property in question and nobody can deny that fact, Later on defendant no.1 laid foundations over the said sale deed site. Nobody made any objection at the time of laying the foundations in the plaint- schedule property herein. The plaint-schedule property is not correct in all aspects in the patta No. , S.No. and boundaries are concerned.

This defendant submits that the suit itself not maintainable under law. The case of the three sale deed properties are different schedule, patta No. and

S. No. and boundaries besides the vendors are also different. The single suit is not maintainable under law. More so, the plaintiff is not be an agent of her son Prasad and there is no such document has been filed by the plaintiff to show that she is looking after and maintaining the properties of her son.

There is no inter agency available with son and mother under law. The court fee jurisdiction paid not correct. This Hon'ble court has no Jurisdiction to entertain this suit. This defendant submits that the sale deeds of the plaintiff are silent about the pathway through the defendant's site. Apart from the plaint-schedule is silent about the patta No. and S. Nos are concerned. The plaintiff or her son are no right to claim any thing from the defendant sale deed site in question. The plaintiff has no easementary right

O.S.No. 52 of 2016

Dt. 10.01.2025

of way through the defendant no.1 site at any point of time. along with her son and others, all the sale deeds which are referred in the plaint are not genuine and correct sale deeds.

4.1. This defendant submits that Defendant no.1 herein while he was alive sold away the site which was purchased by him on 31.12.2012 under a registered sale deed to the Sahukari swathi w/o. Bangaru Tejeswararao, of

Kanchili under a registered sale deed dated 5.12.2016 for Rs. 1,67,000/- and possession is also delivered thereunder by her and she is in possession and enjoyment of the said sale deed site in S.No.303/11 to an extent of 50 x 15 feet bounded by East:- Rajamargam, South: Jallu Kiran vacant site

West: Karri Chandrayya's vacant site, North:-Sahukari Swathi's Vacant site.

The said Sahukari Swathi is now proper and necessary party to the suit, therefore the suit is bad for non-joinder of necessary party. This defendant submits that Defendant no.1 died leaving behind Defendant no. 2 to 4 apart from another 2 married daughters are there and they are alive and they are also proper and necessary parties to the suit. This defendant further submits that Defendant no. 2 to 4 are now nothing to do with the plaint- schedule property herein at present and they are unnecessarily added in this suit. The suit is therefore mis joinder of necessary parties to the suit.

The3 Defendant no. 2 to 4 are reserving their right to claim damages from the plaintiff herein, in appropriate time for adding them unnecessarily in this above suit.

5. From the above pleading the following issues were settled on 07-08-2024.

(I)Whether the plaintiff is in possession and enjoyment of the suit schedule property, as on the date of filing of the suit ?

(ii)Whether there is a cause of action for the plaintiff to file the suit ?

(iii) Whether the plaintiff is entitled to grant permanent injunction, restraining the defendants, their agents, servants and workmen from ever occupying the plaint schedule rajamargam and from raising permanent structures therein, as prayed for ?

(iv) To what relief?

O.S.No. 52 of 2016

Dt. 10.01.2025

6. Issue No. 1 to 3 answered together

In this suit Defendant No.1 died Defendant No. 2 to 4 are added legal hires of deceased defendant No.1. Further defendant No.2 also died.

Defendant No. 3 and 4 are not come to court and not gave any evidence behalf of them, but written statement filed by Defendant No.1 and defendant No. 3.

6.1Plaintiff himself examined as PW.1 and got marked

Ex.A1:Registration Extract of the sale deed dated 05-09-2012 executed by

Gujjala Rambabu of Sruikakulam in favour of Karri Ravi Prasad.. EX.A.2:

Registration Extract of the sale deed dated 11-10-2010 executed by

Neyyila Janardana in favour of Karri Syamanti EX. A.3: Registration

Extract of the sale deed dated 30-07-2012 executed by Naresh Kumar

Agrawal as power of attorney holder of Tarun Kumar Agarwal in favour of

Karri Ravi Prasad. and EX.A.4:Registration Extract of the sale deed dated 05-02-2012 executed by Naresh Kumar Agrawal as power of attorney holder of Tarun Kumar Agarwal in favour of Jallu Kiran 6.2Defendant No.1 filed written statement denied the contention of

PW.1 and submitted that the said Naresh Kumar Agarwal as a power of attorney holder for Tarun Kumar Agarwal sold a vacant site which is measuring 52 feet on East-West and 30 feet on north-south under a registered sale deed dated 05.03.2012 for R.s 1,73,500/- to Jallu Kiran s/o.

Jaggunaidu of Chinna Srirampuram village. In the said sale deed is also the northern boundary is shown as a road. The said vacant site is on the south of the plaint-schedule rajamargam, and that the original registered sale deeds of the plaintiff are pledged with the State Bank of India, Sompeta in a loan borrowed by the plaintiff's son, that the defendant has nothing to do with the plaint-schedule rajamargam and yet he is trying to occupy the rajamargam and making preparations to raise permanent structures there on against the interests of the plaintiff and her son, so the suit is filed for a permanent injunction, restraining the defendant from making any permanent structures in the plaint-schedule properties Rajamargam, all these allegations not true and correct. This defendant submits that the all the sale deed properties are not the common boundaries. besides the

O.S.No. 52 of 2016

Dt. 10.01.2025

patta No. and Serial No. are different. More so, it does not tallies with the plaint-schedule property herein. This defendant categorically denied the right, title and possession of the plaint-schedule property of the plaintiff apart from the common way in which the plaintiff is claiming the right over it. over the defendant site in question. More so, the plaintiff or his family members are no right title over the defendants registered sale deed dt.31.12.2012 site in question is concerned. This defendant submits that he purchased a vacant site in S.No.303/11 in Baliyaputtuga village in

Western row of Kanchili NH.5 road and near M.R.O. Office in Kanchili

Mandal. East-West 50 feet and North South 15 feet total 750 square feet from Tarun Kumar Agarwal and Naresh Kumar Agarwal under a registered sale deed dt. 31.12.2012 for R.s. 83,500/- (eighty three thousand and five hundred) and possession is also delivered thereunder from their vendors and from that day onwards the defendant is in possession and enjoyment of the said sale deed property in question. Nobody can deny that fact.

Later on the defendant laid a foundation over the said sale deed site.

Nobody has made any objection at the time of laying the foundation in the plaint-schedule property herein. Defendant No.3 and 4 are did not produced their evidence behalf of them. The evidence of PW.1 remained unchallenged carefully perused the document filed by PW.1.

Ex.A1:Registration Extract of the sale deed dated 05-09-2012 executed by

Gujjala Rambabu of Sruikakulam in favour of Karri Ravi Prasad.. EX.A.2:

Registration Extract of the sale deed dated 11-10-2010 executed by

Neyyila Janardana in favour of Karri Syamanti EX. A.3: Registration

Extract of the sale deed dated 30-07-2012 executed by Naresh Kumar

Agrawal as power of attorney holder of Tarun Kumar Agarwal in favour of

Karri Ravi Prasad. and EX.A.4:Registration Extract of the sale deed dated 05-02-2012 executed by Naresh Kumar Agrawal as power of attorney holder of Tarun Kumar Agarwal in favour of Jallu Kiran, the documents filed by the PW.1 are convinced and possession over plaint schedule property is prima facie proved and also the evidence of PW.1 is remained unchallenged. Hence suit is decreed infavour of plaintiff by restraining the defendants from ever occupying the plaint schedule rajamargam and raise permanent structures. Hence, accordingly issue No. 1 to 3 are answered in favour of the plaintiff against the defendants.

O.S.No. 52 of 2016

Dt. 10.01.2025

Issue no.4:

In the result this suit is decreed with costs by way of granting permanent injunction in favour of plaintiff and against the defendants, restraining the defendants, their agents, servants, relatives and workmen from ever occupying the plaint schedule rajamargam.

Dictated to the Typist, transcribed by him, corrected and pronounced

by me in Open Court, this the 10th day of January, 2025.

ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)

SOMPETA

APPENDIX OF EVIDENCE WITNESSES EXAMINED

FOR PLAINTIFF: -FOR DEFENDANT: -

PW1: Karri SyamanthiNlL

DOCUMENTS MARKED

FOR PLAINTIFF: -FOR DEFENDANT: -

Ex.A1Registered extract of the sale deed NIL

dated 05-09-2012 executed by Gujjala

Rambabu of Srikakulam in favour of Karri Ravi Prasad.

Ex.A2Registered extract of the sale deed

dated 11-10-2010 executed by Neyyila

Janardana in favour of Karri Syamanthi.

EX.A3 Registered extract of the sale deed

dated 30-07-2012 executed by Naresh

kumar agarwal as power of attorney holder of Tarun kumar agarwal in favour of Karri Ravi Prasad.

EX.A4Registered extract of the sale deed

dated 05-03-2012 executed by Naresh

kumar agarwal as power of attorney holder of Tarun kumar agarwal in favour of Jallu Kiran.

ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)

SOMPETA

O.S.No. 52 of 2016

Dt. 10.01.2025

CC.15/2022, Dt.09-01-2025, PJMFCC/SPT.

- 1 -

IN THE COURT OF PRINCIPAL JUDICIAL MAGISTRATE OF FIRST CLASS ::

SOMPETA

Present : Sri A.Ramu, Addl, Judicial Magistrate of First Class, Sompeta, (FAC) Principal Judicial Magistrate of First Class, Sompeta.

Thursday, this the 09th day of January, 2025.

C.C.No.15/2022

Between : State represented by the Sub-Inspector of Police, Baruva P.S. ….Complainant And : A1) Kolli Dhanayya, S/o.Pilakayya, aged 31 years, Hindu, Nakkala Street, Golluru Village, Sompeta Mandal, Srikakulam District.

A2) Pinniti Bhaskararao, S/o.Krishnamurthy, Aged 40 years,Hindu, Pedda Veedhi, Golluru Village, Sompeta Mandal, Srikakulam District.

...Accused/A1 & A2

This case is coming before me on today for final hearing in the presence of Assistant Public Prosecutor for State and of Sri S. Bhaskara Rao Learned Counsels

for the Accused/A1 & A2, upon hearing both sides and the matter having been

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, Baruva P.S, filed a charge-sheet in

Cr.No.79/2021, for the offence punishable U/Sec.7-B r/w 8-B & 8-C(a) of A.P.

Prohibition (Amendment) Act, 2020, against Accused/A1 & A2.

2).The brief facts of the prosecution case are : that on 12-07- 2021, at 19.00 hours, at Golluru Village, Odissa Village LW.4/V.

Ramesh, Sub-Inspector of Police, Baruva P.S, alongwith his staff LW.1 to3(LW.1/G.Ravi-PC-226,LW.2/B.Srinivasarao-HC-205,&

LW.3/K.Krishna Rao ASI-824), conducted raid and found the Accused/A1 & A2 in illegal possession & transportation of Two bags, containing 15

Litres of ID arrack for sale at higher prices, each one litres 150/- total worth of Rs. 4500/-. without having any valid licence or permit; and on seeing the Police offi cials, the Accused tried to run away, but they

CC.15/2022, Dt.09-01-2025, PJMFCC/SPT.

- 2 - detained and arrested the Accused/A1 & A2; and then seized the ID arrack contraband; and on enquiry, the Accused/A1 & A2 revealed their identity particulars; and then, the Police drawn the 02 sample bottles of ID arrack of 250 ml each, as samples for chemical analysis purpose, under cover of Occurrence Report, dt.12-07-2021; and brought the Accused/A1 & A2 alongwith the seized contraband to

Baruva P.S, on the point of jurisdiction. Basing on the Occurrence

Report, LW.5/V.Ramesh, Sub-Inspector of Police, Baruva P.S, registered a case/FIR in Cr.No.79/2021, dt.12-07-2021, under Section 7-B r/w 8-B & 8-C(a) of A.P. Prohibition (Amendment) Act and the

Accused/A1 & A2 were remanded for Judicial custody and they were released as per the Bail Orders, vide CrlM.P.No. 148/2021 Date:22-07- 2021 Then, LW.5/S.I of Police forwarded seized samples to the

Chemical Examiner of Prohibition and Excise, R.P.E.L., Visakhapatnam, for chemical analysis. Then, LW.5/V.Ramesh, Sub-Inspector of Police,

Baruva P.S obtained the Chemical analysis report, from LW.4/P.Lakshmi,

Govt. Chemical Examiner, RPEL, Visakhapatnam, with opinion that the sample is illicitly distilled arrack and unfi t for human consumption and injurious to health and he also destroyed the case property as per the

Destruction Orders, i.e, Proceedings issued by the Superintendent of

Police, Srikakulam. After completion of investigation, LW.5/V.Ramesh,

Sub-Inspector of Police, Baruva P.S, fi led charge-sheet against the

Accused/A1 & A2.

03.On receipt of charge sheet, this case was taken on file for the offence

U/Sec.7-B r/w 8-B & 8-C(a) of A.P. Prohibition (Amendment) Act, 2020, against the

Accused/A1 & A2.

CC.15/2022, Dt.09-01-2025, PJMFCC/SPT.

- 3 -

04.On appearance of the Accused/A1 & A2, copies of documents were furnished to them as contemplated U/Sec.207 of Criminal Procedure Code, 1973 (hereinafter referred as 'Cr.P.C.' for the sake of brevity).

05.When examined U/Sec.239 of Cr.P.C., the Accused/A1 & A2 denied the allegations leveled against them. After perusing the entire material on record and on hearing both sides, a charge had been framed against the Accused/A1 &

A2 U/Sec.7-B r/w 8-B & 8-C(a) of A.P. Prohibition (Amendment) Act, 2020, which was read-over and explained to the Accused/A1 & A2 in Telugu, for which, they pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, PW’s.1 & 2 were examined and Ex’s.P1 to P5 and M.O.1 were marked. The remaining witnesses, LW’s.1, 2 & 4 (LW.1/G.Ravi-PC-226, LW.2/B.Srinivasarao-HC- 205, & LW.4/P.Lakshmi, Govt. Chemical Examiner, RPEL, Visakhapatnam) were given-up by the Learned Assistant Public Prosecutor, in view of the evidence of PW’s.1 & 2.

07.On closure of evidence let in by the prosecution, the Accused/A1 &

A2 were examined U/Sec.313 of Cr.P.C., with regard to the incriminating material available against them, for which, they denied the same and reported no defence evidence.

08.Heard the arguments on both-sides and perused the record.

a)The Learned APP for Prosecution has argued that the evidence of

PW’s.1 & 2 coupled with Ex’s.P1 to P5 and M.O.1 clearly discloses that the contraband seized from the possession of Accused/A1 & A2 is ID arrack and they intend to sell the same in open market to gain unlawfully which contravene the

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- 4 - provision U/Sec.7-B r/w 8-B & 8-C(a) of A.P. Prohibition (Amendment) Act, 2020.

As such, the Accused/A1 & A2 are liable for punishment for the above section.

b)Per contra the Counsel for the Accused/A1 & A2 argued that the

Police officials failed to follow the provisions as contemplated U/Sec.55 of AP

Excise Act and Sec.100(4) of Cr.P.C., at the time of seizure of contraband from the possession of Accused/A1 & A2. As such, the entire proceedings conducted by the Police Officials are vitiated. As per the case of prosecution, PW’s.1 & 2 while giving evidence, pleaded ignorance with regard to the seizure of ID liquor at the scene of offence and preparation of Occurrence Report. As such,

Ex.P1/Occurrence Report was not prepared at the scene of offence. The entire proceedings were prepared in the Police Station and foisted this false case against the Accused for their statistical purpose. Hence, the Accused/A1 & A2 are entitled for acquittal.

9).After hearing both side arguments and considering the entire material on record, now the points for determination before the Court is :

“1. Whether the police seized ID arrack from the possession of the

Accused/A1 & A2 under cover of Occurrence Report ?”

“2. Whether the Posecution is able to prove the guilt of Accused

beyond all reasonable doubt for the offence U/Sec.7-B r/w 8-B &

8-C(a) of A.P. Prohibition (Amendment) Act, 2020 ?” 10).Point No.1 :

a)In order to prove the case of prosecution and to establish the seizure of ID arrack from the possession of Accused, the prosecution got examined PW’s.1 & 2 and exhibited the documents Ex's.P1 to P5 and M.O.1. PW’s.1 & 2 are the

Police Officials-cum-Investigation Officers, who conducted raid alongwith their

Police staff, prepared the Occurrence Report, registered FIR, obtained Chemical

Analysis Report and Destruction Proceedings and filed charge-sheet.

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b)PW.1/K.Krishnarao he deposed that On 12-07-2021 at about 05.00 AM he received reliable information he along with and staff reached at Battigolluru

Village, at that time we found accused NO. 1 and 2 found from Golluru to

Battigalluru along with vehicle AP 30 AE 6391 with Plastic gunny bag. On seeing police he ran away but myself along with LW.1 caught hold the accused. Then he questioned the accused he stated that the bag is having ID arrack. he verified the said bag containing two polythene bags each bag contained 15 liters ID arrack total 30 Liters of ID arrack LaterI questioned the accused he reveled that they purchased from unknown person Gongapur village of Odisha state. he sent one constable for securing mediators but in vain. he seized the property of ID arrack and collected 2 bottles for purpose of chemical analyses. MO.1-2 plastic bottles of

ID liquor. He arrested the accused and prepared the occurrence report. Ex. P1 Is the occurrence report. After he hand over the accused and seized property to

LW.5-V.Ramesh Kumar.

During the cross-examination, PW.1 deposed that he did not mention the dress-code of Accused and he did not mention the boundaries and did not prepare any Rough Sketch of the scene of off ence; and he did not issue any written summons to secure the mediators. He denied the suggestion that the Accused/A1 & A2 are no way concerned with this case and he is deposing false for statistical purpose. The evidence of PW.1 is not corroborated and his un- corroborated testimony cannot be taken into consideration. As such, his evidence is not useful in proving the case of the prosecution.

c)PW.2/V. Ramesh, (LW.5), Sub-Inspector of Police, Baruva

P.S, deposed his evidence that he stated that On 17-07-2021 about 07.00 PM he along with PW.1 and LW.1 to 3 my staff received reliable information at Batti golluru Village, at the time we found two persons coming with vehicle bearing No. AP 30 AE 6391 TVS Star City bike

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- 6 - plastic bag on suspicion stopped the same, he caught Accused No. 1 and 2 On questioning accused Then he have verifi ed the each bag stated that the bags contained ID arrack sachets. contained 30 liters of ID arrack On interrogated the accused No. 1 and 2 reveled that they purchased ID arrack from Gongapur of Odisha state Then he took sample packets for chemical analyses duly affi xed identity slips. he seized the entire case property along with accused under the cover of

Mediator report. Basing on Ex.P1 Brought the case property along with accused to Baruva P.S and basing on Ex.P1 he registered the case in

Crime No 79/2021 for the off ence U/sec 7(B) r/w 8(B), 8(C) (a) of AP

Prohibition Amendment Act 2020. Ex.P2 is the FIR. he arrested the accused No, 1 and 2 on next day and send for judicial custody. He letter to the chemical examiner P& E laboratory Visakhapatnam along with sample sachets. Letter of Advice is EX.P3 the destruction he received the chemical analyses report vide C.E No. 2236/2021 Serial number 18365 to Ex.P4 is Chemical analysis report. he destroyed the seized property. Ex. P5 is destruction order. After completion of investigation he fi led charge sheet against A1 and A2.

During the cross-examination, PW.2 deposed that he is the

Complainant as well as the Investigation Offi cer in this case and he did not mention the boundaries and did not prepare any Rough Sketch of the scene of off ence; and he did not issue any written summons to secure the mediators. He denied the suggestion that the Accused/A1 & A2 are no way concerned with this case and he is deposing false for statistical purpose. The evidence of PW.2 is not corroborated and his un-corroborated testimony cannot be taken into consideration. As such, his evidence is not useful in proving the case of the prosecution.

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d)Before going into the merits in the case of prosecution it is pertinent to mention the important provisions basing on which the entire case is rests.

SECTION 7-B Prohibition of Boot Legging Activities:

The manufacturing, transporting, setting, buying, importing, exporting or storing of any alcoholic liquor and supplying or transporting of any raw materials for the manufacture of alcoholic liquor illegally or clandestinely, otherwise than in accordance with the provisions of A.P. Excise Act, 1968 is hereby prohibited.”

SECTION 8-B Penalty for sale, export, import and transport of alcoholic

liquor manufactured illegally and clandestinely:-

Whoever in contravention of Section 7-B of this Act indulges in sale, export, import or transport of illicitly distilled alcoholic liquor shall on conviction be liable for imprisonment for a term which shall not be less than one year but which may extend upto eight years and with fine which shall not be less than two lakhs for the first offence and which shall not be less than rupees five lakhs for the second offence.” 8-C. Penalty for Conspiracy: When two or more persons agree-

(a) to commit any off ence punishable under this Act.

SECTION 55 of AP Excise Act : Power to search without warrant

Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub- Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,_ (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.

Section 100(4) in The Code of Criminal Procedure, 1973

Before making a search under this Chapter, the officer or other person

about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The above referred provisions clearly discloses that if any police officer wants to seize any articles from the possession of suspected person, he must follow the procedure as contemplated U/Sec.100(4) of Cr.P.C. If he fails to secure any independent mediator he must prepare a report as per Sec.55 of AP Excise

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- 8 - Act and proceed with the preparation of Special Report. The offence U/Sec.7(B) r/w 8(B) of APP (Amendment) Act 2020 is made cognizable offence and once the

Excise officials are entrusted with the investigation of cognizable offence. If any police officer failed to follow the above said procedure, the entire proceedings undertaken by him are null and void and same cannot be taken into consideration to believe the search and seizure. The Occurrence Report drafted byP.W.1 is nothing but the confessional statement of Accused. As such, the said report is hit by the provisions U/Sec.25 and 27 of Indian Evidence Act. In those circumstances, the prosecution must establish the recovery of contraband from the possession of

Accused by placing cogent evidence before the Court.

e)Coming to the present case on hand, the case of prosecution is that, while PW’s.1 & 2 conducting raid, they went to the scene of offence and found the

Accused/A1 & A2 who were transporting the ID arrack. Then, the Police detained and arrested the Accused/A1 & A2 and seized the contrband 45 Litres of ID arrack.

As per the Ex.P4/Chemical Analysis Report marked, the contraband seized from the possession of Accused/A1 & A2 is ID arrack. As such, the police having every authority to question the possession of ID arrack by the Accused, as it is a prohibited one. The only question remained before the Court is whether the said

ID arrack was seized from the possession of Accused by following proper procedure.

f)Now, the clinching issue before the Court is whether the said contraband was seized from the possession of Accused by following the proper procedure. As per the testimony of PW’s.1 & 2, the Police did not seize any ID arrack from the scene of offence. The very case of the prosecution is that PW’s.1 & 2 alongwith Police staff condcuted raid at the scene of offence and found the

Accused coming with gunny bags, then they detained and arrested the Accused.

To that effect the Ex.P1/Occurrence Report was drafted. But during the course of evidence, PW’s.1 & 2 pleaded ignorance with regard to preparation of Occurrence

Report and seizure of ID arrack, as pleaded by the Prosecution. Except, the

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- 9 - evidence of PW’s.1 & 2, there is no other positive evidence on record to depose with regard to the seizure of contraband at the scene of offence. Moreover, Ex.P1 is silent whether it was prepared at the scene of offence or elsewhere. The name of scribe of Ex.P1 was not mentioned in it. The gunny bags in which the ID arrack was seized not produced before the Court. As per the Occurrence Report, the identity slips were affixed on the said gunny bag. But they were not produced

before the Court to believe the contention of police. Moreover, the persons who

alleged to have present at the time of preparation of Ex.P1 did not support the case of prosecution. All the referred circumstances clearly goes to show that

Ex.P1 was not prepared at the scene of offence. There is every possibility to prepare the said Ex.P1/Occurrence Report in the police station, as argued by the counsel for the Accused. Even though PW’s.1 & 2 identified their signatures on the Occurrence Report, but they did not speak about the seizure of contraband from the possession of Accused. As such, the said contention should not be taken into consideration. As could be seen from the evidence of PW’s.1 & 2, it can clearly understood that they never visited the scene of offence, as stated by the

Prosecution before the Court. Further, Ex.P1 is silent with regard to the name of the scribe and where it was drafted. Later, basing on the enquiry made by the police, to that effect the police did not examine any of the person in the scene of offence to show that the Accused was in possession of ID arrack. At the same time, no document was executed at the time of arrest of Accused in this case. As such, I do not see any truth in the above said contention. The investigation is not proper with regard to the identification of Accused and fixing the guilty of offence on them. There is every possibility to register the case against the Accused for statistical purpose as argued by the Counsel for Accused. In this regard, this

Court is not inclined to believe the evidence of PW’s.1 & 2 with regard to the alleged offence in this case. In view of the aforesaid mentioned reasons, this

Court is not inclined to believe the evidence of PW’s.1 & 2 and the possession of

ID arrack by the Accused. Accordingly, point No.1 is answered.

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11.Point No.2 :

In view of the answers point No.1, the Accused/A1 & A2 are entitled for acquittal.

12.In the result, the Accused/A1 & A2 are found not guilty for the off ence punishable under Section 7-B r/w 8-B & 8-C(a) of

A.P.Prohibition (Amendment) Act, 2020 and the Accused/A1 & A2 are

ACQUITTED under Section 248(1) of Cr.P.C, for the said off ences. The bail bonds of the Accused/A1 & A2, if any, shall stands cancelled after expiry of appeal time, as per Sec.437-A of Cr.P.C. The M.O.1/case property is ordered to be destroyed after expiry of appeal time.

Typed to my dictation by the Typist, corrected, signed and pronounced by me, in open Court, on this the 09th day of January, 2025.

Sd/- Sri A.Ramu,

Addl.Judl. Magistrate of 1 st Class, Sompeta , ( FAC) Prl. Judl. Magistrate of 1 st Class, Sompeta.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :For Defence :- PW.1:K.Krishna Ra -ASI, Baruva P.S.None. PW.2:V.Ramesh, Sub-Inspector of Police, Baruva P.S.

EXHIBITS MARKED

For Prosecution: Ex.P1: Occurrence Report, dt.12-07-2021. Ex.P2: First Information Report in Cr.No.79/2021, dt.12-07-2021. Ex.P3: Letter of advise, dt.12-09-2021. Ex.P4: Chemical Analysis Report, dt.06-10-2021. Ex.P5: Destruction Orders, dt.04-01-2022. For Defence: Nil.

MATERIAL OBJECTS

MO.1 : Two sample bottles of ID arrack of 250 ml each.

Sd/- Sri A.Ramu,

Addl.Judl. Magistrate of 1 st Class, Sompeta , (FAC) Prl. Judl. Magistrate of 1 st Class, Sompeta.

// True Copy //

Addl. Judicial Magistrate of 1st Class, Sompeta, (FAC) Prl. Judicial Magistrate of 1st Class, Sompeta.

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Calendar and Judgment

Calendar Case tried by the Principal Judicial Magistrate of 1st Class :: Sompeta.

CALENDAR CASE No.15/2022

Date of offence12-01-2021 Date of Complaint or Report12-01-2021 Apprehension of the Accused 12-01-2021 Release on bail of AccusedCrlM.P.No. 148/2021 Date:22-07-2021 Date of Commencement of Trial 20-06-2023

Date of Close of Trial17-12-2024 Date of Sentence of Order09-01-2025

Explanation for delay, if any: Due to non production of witnesses by the Prosecution. Name of the complainant:State represented by the Sub-Inspector of Police, Baruva P.S, in Crime No.238/2020. Name of the Accused :A1) Kolli Dhanayya, S/o.Pilakayya, aged 31 years, Hindu, Nakkala Street, Golluru Village, Sompeta Mandal, Srikakulam District.

A2) Pinniti Bhaskararao, S/o.Krishnamurthy, Aged 40 years,Hindu, Pedda Veedhi, Golluru Village, SompetaMandal, Srikakulam District. Offence :Section 7-B r/w 8-B & 8-C(a) of A.P. Prohibition (Amendment) Act, 2020.

Sec.7(B) r/w 8(B) & 8-C(a) of A.P.Prohibition (Amendment) Act, 2020:

“7-B.ProhibitionofBootLeggingActivities :Themanufacturing, transporting, setting, buying, importing, exporting or storing of any alcoholic arrack and supplying or transporting of any raw materials for the manufacture of alcoholic arrack illegally or clandestinely, otherwise than in accordance with the provisions of the A.P. Excise Act, 1968 is hereby prohibited. 8-B. Penalty for sale, export, import and transport of alcoholic arrack manufactured illegally and clandestinely; 8-C. Penalty for Conspiracy: When two or more persons agree-

(a) to commit any off ence punishable under this Act. Sentence or order:- In the result, the Accused/A1 & A2 are found not guilty for the off ence punishable under Section 7-B r/w 8-B & 8-C(a) of A.P.Prohibi- tion (Amendment) Act, 2020 and the Accused/A1 & A2 are ACQUITTED under Section 248(1) of Cr.P.C, for the said off ences. The bail bonds of the Accused/A1 & A2, if any, shall stands cancelled after expiry of appeal time, as per Sec.437-A of Cr.P.C. The M.O.1/case property is ordered to be destroyed after expiry of appeal time.

Sd/- Sri A.Ramu,

Addl.Judl. Magistrate of 1 st Class, Sompeta , (FAC) Prl. Judl. Magistrate of 1 st Class, Sompeta.

Copy submitted to the Hon'ble 1st Addl. District Judge, Srikakulam, for perusal.

// True Copy //

Addl. Judicial Magistrate of 1st Class, Sompeta, (FAC) Prl. Judicial Magistrate of 1st Class, Sompeta.

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