Alluri Srinivasa Kumar

1

IN THE COURT OF THE IX ADDITIONAL DISTRICT JUDGE

WANAPARTHY

Wednesday the 26th day of December, 2018

Present:- Sri A.Srinivasa Kumar, IX.Addl.District Judge, Wanaparthy,

A.S.No.10 of 2018

Between:

1. Atmakur Rajavardhan Reddy son of A.Venkat Reddy, Age 48 years, occupation Contractor and agriculture resident of Peddamandadi village and mandal.

2. V.Narayana son of Narsimha, age 46 years, occupation Government Teacher resident of H.No.44-84/1A, Opposite Rankers School, KDR Nagar, Wanaparthy.

…. Appellants

And

Jangidi Gopal son of Late J.Krishnaiah, Age 46 years, occupation agriculture, resident of House No.42/332/2, Gunj Area, Wanaparthy Town and District.

..Respondent

Appeal filed against the Judgment and Decree passed by the Senior Civil Judge, Wanaparthy in

O.S.No.84 of 2010 dated 31st October, 2017.

Between:

1. Atmakur Rajavardhan Reddy son of A.Venkat Reddy, Age 48 years, occupation Contractor and agriculture resident of Peddamandadi village and mandal.

2. V.Narayana son of Narsimha, age 46 years, occupation Government Teacher resident of H.No.44-84/1A, Opposite Rankers School, KDR Nagar, Wanaparthy.

…. Plaintiff

And

2

Jangidi Gopal son of Late J.Krishnaiah, Age 46 years, occupation agriculture, resident of House No.42/332/2, Gunj Area, Wanaparthy Town and District.

..Defendant

Appeal filed under Order XLI Rule 1 of CPC.

This appeal suit coming before me for final hearing on 26.12.2018 in the presence of Sri R.Hema Vardhan

Reddy, Sri T.Malleshwara Chary, Advocates for the appellants and the Respondent has been set exparte, and upon perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The un-successful defendants in OS No.84 of 2010 on the file of Senior Civil Judge’s Court,

Wanaparthy are the appellants herein challenging the

Judgment dated 31st October, 2017 passed by such

Court, thereby decreeing the suit against them with a direction to Rs.3,46,000/- with interest @ 12% per annum in favour of Respondent herein. The appellants would challenge such Judgment in the grounds of appeal that the Lower Court has passed the Judgment erroneously and without proper appreciation of the facts and the law. To better understand the controversy, this 3

Court feels it inevitable to touch the facts and circumstances under which the appellants approached this Court. To avoid confusion in the matter, this Court would like to mention the status of the parties as they are arraigned in the cause title of OS No.84 of 2010.

2)The plaintiff (respondent herein) instituted the said suit against the defendants (appellants herein) for the recovery of suit amount based on four promissory notes and an agreement of sale. To be more in clear, the plaintiff would contend that the first defendant borrowed four amounts from him on different dates, one was

Rs.50,000/- on 14th June, 2005, the second one was on 10th February, 2006 a sum of Rs.50,000/-, the third one was on 17th March, 2006 a sum of Rs.40,000/- and finally on 6th May, a sum of Rs.50,000/- . So far as the second defendant is concerned, the plaintiff would contend that he stood as surety for the said amounts borrowed by the first defendant. But, according to the plaintiff, the defendants since failed to pay the said four amounts and on his demand, the first defendant is said to have executed an agreement on 5th November, 2007, thereby agreeing to pay the said amount, but in two installments, one is on 15th December, 2007 and the second one is on 7th December, 2008. But, according to 4 the plaintiff, this time also the defendants failed to pay the said amount in spite of his several demands including by way of a legal notice dated 29th June, 2010, and therefore, the plaintiff instituted the said suit.

3)On the other hand, the defendant No.1 and 2 filed their separate written statements, however, by denying their liability to pay any amount to the plaintiff.

It is surprising to note that the defendants though filed their separate written statements took one plea to deny their liability to pay the suit amount and therefore this

Court adopted the pleadings in the written statement filed by the first defendant to avoid wastage of time.

4)Both the defendants in one voice have denied the validity of the said promissory notes and also the said agreement dated 5th November, 2007 and according to them, all the documents are forged and fabricated and they further contended that they never borrowed such amounts from the plaintiffs at any point of time.

The second defendant specifically stated in his written statement that he never acted as guarantor for the first defendant.

5)Based on the above pleadings, the Lower

Court has settled the following issues for consideration:- 5

ISSUE NO.1:-Whether the plaintiff is a professional money lender?

ISSUE NO.2:- Whether the suit promissory notes

are true, valid and binding on the defendants?

ISSUE NO.3:-Whether the agreement dated 5 th

November, 2007 is true?

ISSUE NO.4:- Whether the plaintiff is entitled for

ecovery of suit claim with interest and costs as

prayed for?

ISSUE NO.5:- To what relief?

6)In support of their respective cases, the plaintiff besides examining himself as P.W.1 also examined one

Janampeta Srinivasulu as P.W.2 and one G.Venkatesh as

P.W.3 and exhibits A1 to A9 were marked on his side. On the otherhand, the defendants got examined themselves as D.W.1 and D.W.2 respectively and they did not prefer to mark any documents on their side. The learned

Senior Civil Judge, Wanaparthy finally passed the said

Judgment, thereby decreeing the suit against the defendants. Hence this appeal.

6

7)Heard,thelearnedAdvocateforthe appellants/defendants and the respondent remained exparte in the matter. The Advocate for the appellants/defendants while drawing the attention of this

Court to the entire case record has vehemently contended that the defendants never borrowed any amount from the respondent/Plaintiff and therefore the suit is liable for dismissal by allowing this appeal.

8)This Court has perused the entire case record meticulously and also taken into consideration of the arguments advanced by the Advocate for the appellants/defendants and formulated the following points for determination:

POINT NO.1:- Whether the Judgment and

Decree in OS No.84 of 2010 passed by the Senior

Civil Judge, Wanaparthy is within the law and

facts?

POINT NO.2:- Whether the said

agreement dated 5 th November, 2007 marked as

Ex.A5 is a bond within the meaning of Section

2(5) of the Indian Stamp Act, 1899 and therefore

liable for stamp duty and penalty?

POINT NO.3:- If so, to what relief?

7

7)(It has necessitated this Appellate Court

to formulate the Second point as it appears to this

Court that the said agreement, which has been

marked as Ex.A5 is a “Bond” within the meaning

under Section 2 (5) of Indian Stamp Act, which

requires a stamp duty and penalty, but the Lower

Court failed to consider the said aspect in this

case. Since it is a mandatory requirement under

Section 35 of Indian Stamp Act that a stamp duty

and penalty can be collected at any stage,

including by an Appellate Court, this Court

formulated the said point and imposed penalty on

Ex.A5 payable by the respondent/plaintiff )

8)POINT NO.1:- Whether the Judgment

and Decree in OS No.84 of 2010 passed by the

Senior Civil Judge, Wanaparthy is within the law

and facts?

As already stated by this Court in the factual matrix, it is the simple case of the plaintiff that the first defendant availed loans from him on four occasions and executed a Ex.A1 to A4 in his favour, thereby agreeing to repay the said amounts whenever demanded by him, but the defendants failed to pay the said amounts and finally the first defendant executed 8

Ex.A5, thereby agreeing to pay the said amounts in two installments, one was on 15th December, 2007 and the second one was on 7th February, 2008. As the defendants failed to pay the said amounts, the plaintiff instituted the said suit. On the other hand, the defendants totally denied their liability on the sole ground that Ex.A1 to A5 are forged and fabricated documents. Since the initial burden of proof is on the plaintiff, he adduced evidence by examining himself as

P.W.1 and by examining P.W.2 and P.W.3. This Court has perused the evidence of P.W.1 to P.W.3 and found that the plaintiff could successfully establish execution of exhibits of A1 to A5 by the defendants. Now, the burden shifts on to the defendants to establish exhibits A1 to A-5 as forged and fabricated documents.

9)The first defendant as D.W.1. has strangely introduced a new pleading in his chief affidavit stating that the plaintiff obtained his signatures in some blank papers and later created exhibits A1 to A-5. Such new plea took by him cannot be considered without pleadings since it is a settled law. However, the first defendant admitted in his cross examination that there was a money transaction between the plaintiff and the second defendant, wherein the second defendant borrowed a 9 sum of Rs.50,000/- from the Plaintiff. He further admitted in the same cross examination that whatever signatures contained in exhibit A5 agreement as an executant are that of his signatures, including his signatures contained in Ex.A1 to A4. What more is required to settle the issue at the stage of the Judgment itself that the defendants tried to evade payment of the plaintiff. Even the second defendant as D.W.2 admitted in his cross examination that the first defendant obtained his signatures in some promissory notes i.e., in

Ex.A1 to A4. The said admissions are more than sufficient to conclude that the lower Court has rightly decreed the suit against the defendants in this case. So far as the stamp duty and penalty payable on Ex.A5, is concerned the learned Senior Civil Judge has observed in 7th page of his Judgment that there was no need to impose stamp duty and penalty on Ex.A5 as Ex.A5 was marked without any objection. But, such view adopted by the Senior Civil Judge cannot be accepted under the facts and circumstances of this case. However, this

Court touched the said point in this Judgment as per

Section 61 of Indian Stamp Act.

9)POINT NO.2:- Whether the said

agreement dated 5 th November, 2007 marked as

10

Ex.A5 is a bond within the meaning of Section

2(5) of the Indian Stamp Act, 1899 and therefore

liable for stamp duty and penalty?

Admittedly Ex.A5 was executed on 5th

November, 2007 and therefore the Telangana State

Stamp Act amended has no application and the earlier provisions would apply i.e., Schedule I-A. As per

Schedule I-A, the bonds are dealt with under item No.13.

The total amount involved in Ex.A5 is Rs.1,90,000/- (Rupees One Lakh Ninty Thousands only). When we caluculate the said amount with stamp duty and penalty the following figures would arise:

(1) For the first Rs.1000/- ::Rs.30/- (2) For the remaining

Rs.1,89,000/-::Rs.5,700/- (3) Penalty payable::Rs.5,700 X 10 times = Rs.57,000/- - Rs.100 = Rs.56,900/- (Rupees

Fifty Six thousand and

Nine hundred only )

Therefore, the plaintiff is liable to pay

Rs.56,900/- (Rupees Fifty Six thousand and nine hundred only) as stamp duty and penalty on Ex.A5 in this case.

10)POINT NO.3:- If so, to what relief?

11

In the result, the appeal is dismissed without costs and the respondent/plaintiff shall pay Rs.56,900/- (Rupees Fifty Six thousand and nine hundred only) as stamp duty and penalty on the agreement dated 5th

November, 2007.

Dictated to Steno-Typist after transcribed by him,

corrected and pronounced by me in open court on this the 26th day of December, 2018.

Sd/-

IX Addl.District & Sessions Judge, Wanaparthy.

Appendix of Evidence -N I l –

Sd/-

IX Addl.District & Sessions Judge, Wanaparthy.

1

IN THE COURT OF THE IX ADDITIONAL DISTRICT

JUDGE WANAPARTHY

Thursday the 27th day of December, 2018

Present:- Sri A.Srinivasa Kumar, IX.Addl.District Judge, Wanaparthy,

A.S.No.59 of 2018

Between:

Gorre Kondanna son of Balakistaiah, Age 65 years, occupation agriculture, resident of Veltoor village of Peddamandadi mandal. …. Appellant

And

1. T.Buchanna son of Krishnaiah, Age 50 years,

2. T.Venkatesh son of Krishnaiah, Age 47 years,

3. T.Satyanarayana son of Krishnaiah, Age 45 years,

4. Gopal Reddy son Vema Reddy, Age 72 years,

5. Krishna Reddy son Vema Reddy, age 77 years, all by occupation agriculture, residents of Veltoor village of Peddamandadi mandal.

..Respondents

Appeal filed against the Judgment and Decree passed by the Senior Civil Judge, Wanaparthy in

O.S.No.48 of 2013 Dated 9th July, 2018.

Between:

Gorre Kondanna son of Balakistaiah, Age 65 years, occupation agriculture, resident of Veltoor village of Peddamandadi mandal.

…. Plaintiff

And

1. T.Buchanna son of Krishnaiah, Age 50 years,

2. T.Venkatesh son of Krishnaiah, Age 47 years,

3. T.Satyanarayana son of Krishnaiah, Age 45 years,

4. Gopal Reddy son Vema Reddy, Age 72 years, 2

5. Krishna Reddy son Vema Reddy, age 77 years, all by occupation agriculture, residents of Veltoor village of Peddamandadi mandal.

..Defendants

Appeal filed under Order XLI Rule 1 of CPC.

This appeal suit coming before me for final hearing on 27.12.2018 in the presence of Sri

R.Srinivasuly, Advocate, Advocate for the appellant and of Sri K.Ramachandra Reddy, Advocate for the respondents and upon perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The plaintiff in OS No.48 of 2013 on the file of

Senior Civil Judge’s Court, Wanaparthy is the

appellant herein challenging the dismissal of the said suit instituted by him against the respondents herein for the relief of declaration of title and recovery of possession of the suit schedule property which is a land to an extent of Ac.3-30 Gts., in Sy.No870/EE, situated at Veltoor village of Peddamandadi mandal.

The appellant would contend in the grounds of appeal that the lower court has miserably failed to properly 3 appreciate the law and facts, particularly the report filed by the Advocate Commissioner and passed an erroneous Judgment. To better understand the controversy between the parties, it is necessary on the part of this Court to have a glance at the facts and circumstances under which this appeal has come into existence. To avoid confusion in the matter, this

Court would like to mention the status of the parties as they are arraigned in the cause title of the plaint in

OS No.48 of 2013.

2)As already stated by this Court, the plaintiff (appellant herein) instituted the said suit against the defendants (respondents herein) to declare his right and title over the suit schedule property and also to direct the defendants to deliver such property to him.

As a reason for instituting the said suit, the plaintiff would contend in the plaint that the total land in

Sy.No.817 was to an extent of Ac.11-28 Gts., and the same had been divided into equal shares, wherein one Venkatamma daughter of one Kista Reddy got half share on the Western side. Ac.1-01 Gts., of land, according to the plaintiff, acquired by the

Government for the house sites and he purchased the 4 suit schedule property from one Susheelamma wife of

Venkat Reddy and after purchase, his name got mutated in the revenue record as owner and possessor of the suit schedule property. In the month of April, 2010 according to the plaintiff, the defendants encroached to an extent of Ac.0-10 Gts., on the South-East corner of the suit schedule property and the first defendant occupied 20 guntas on the Southern side and 3 Guntas and the Defendant

No.2 and 3 who are the brothers of the first defendant occupied 5 Guntas of land on the Eastern side.

3)On the otherhand, the Defendant

No.1,2,4,5 filed their joint written statement, however, by denying the title and possession of the plaintiff over the suit schedule property. Particularly, the defendants have denied their alleged encroachment into the suit schedule property and according to them they are the original owners of the said property.

4)Based on the above pleadings, the lower

Court had settled the following issues for consideration:- 5

ISSUE NO.1:- Whether the plaintiff is entitled to

declare himself and owner of the suit schedule

property?

ISSUE NO.2:- Whether the defendants

encroached in to the land of plaintiff?

ISSUE NO.3:- To what relief?

5)In support of their respective cases, the plaintiff besides examining himself as P.W.1. also examined one Narsimha Reddy as P.W.2 and Ex.A1 to

A9 were marked on his side. On the otherhand, the second defendant was examined as D.W.1 and Ex.B1 to B10 were marked on their side. It is also not out of context to state that the Advocate Commissioner was appointed in this case, who filed his report along with a rough sketch. The Advocate Commissioner shown the alleged encroachment in ‘blue’ colour in his rough sketch and according to him there is encroachment of 6 guntas on the Eastern side and 2 guntas on the

Southern side. But, the Advocate Commissioner’s report was not marked in this case and however, this

Court would like to read the said report along with the record as it is part and parcel of the record.

6

6)The learned Senior Civil Judge after due consideration, finally dismissed the said suit and hence this appeal.

7)Heard, the learned Advocates for both the parties.

8)The Advocate for the appellant/plaintiff while drawing the attention of this Court to the entire case record has vehemently contended that the lower court dismissed the suit on technical grounds without properly appreciating the law and facts and therefore, such Judgment may be set aside by this Court. On the otherhand, as one could naturally expect, the

Advocate for the respondents/defendants supported the findings of the lower court and finally requested this Court to dismiss the appeal.

9)This Court has perused the entire case record meticulously and also taken into consideration of the rival contentions of both the Advocates and formulated the following points for determination.

POINT NO.1:- Whether the Judgment passed in OS No.48 of 2013 by the 7

Senior Civil Judge’s Court, Wanaparthy is

within the law and facts?

POINT NO.2:- If so, to what relief?

10)POINT NO.1:- Whether the Judgment passed in OS No.48 of 2013 by the

Senior Civil Judge’s Court, Wanaparthy is

within the law and facts?

It is the simple case between the parties, wherein the plaintiffs alleges that the defendants encroached into 8 guntas of land in the suit schedule property and on the other hand the defendants denied the same. Under these circumstances, the entire burden is on the plaintiff to establish the alleged encroachment made by the defendants into his land. This Court would like to straight away touch the report filed by the Advocate Commissioner in this case. On careful perusal of the said report, the

Advocate Commissioner disclosed that 6 guntas on the Eastern side and 2 guntas on Southern side has been encroached into the land of the plaintiff. But, the lower court did not consider the said aspect on the reasons mentioned in the Judgment. Coming to the evidence of D.W.1. he has admitted in his cross 8 examination that the plaintiff has a land on the

Western side of their land and he also admitted that the plaintiff purchased the said land in suit schedule survey number.870/EE. He further admitted in the same cross examination that one Advocate

Commissioner was appointed along with a Mandal

Surveyor, who measured the suit schedule land.

Immediately he would say in the said cross examination that the Advocate Commissioner and the

Mandal Surveyor measured only the land of the plaintiff. Such contention of the defendants under the facts and circumstances of this case cannot be considered as the defendants failed to either file their objections on such report filed by the Advocate

Commissioner or to examine the Advocate

Commissioner as a witness in this case. Without such efforts, the defendants cannot expect this Court to disbelieve the report filed by the Advocate

Commissioner. D.W.1 further admitted in the same cross examination that the plaintiff purchased the suit schedule property from the said Venkat Reddy. Now coming to the documentary evidence, the plaintiff has marked Ex.A1 which is a pattedar pass book 9 issued to him by the Government, Ex.A1 to A5 are the

Revenue extracts, Ex.A6 is the legal notice and Ex.A7 are the postal acknowledgments, Ex.A8 is an order passed by the Mandal Revenue Officer declaring the plaintiff as owner of the suit schedule property, Ex.A9 is also an order issued by the Mandal Revenue Officer disclosing the plaintiff as owner of the suit schedule property. On the otherhand, the defendants marked

Ex.B1 to B10 Revenue extracts. Ex.B2 would disclose the name of the first defendant as owner to a land in survey number 870/U to an extent of 20

Guntas, Ex.B3 would disclose the name of the second defendant as owner for Ac.1-23 Gts., in Sy.No.870/U1,

Ex.B4 would disclose the same information as that of

Ex.B3, Ex.B5 would disclose the name of one

Krishnaiah as owner and occupier of the land in

Sy.No.870/U2 to an extent of Ac.1-23 guntas and likewise other revenue extracts. But, the said documents are not helpful to the case of the defendants as they themselves admitted that the land of the plaintiff is situated on the Western side of their land. This Court also perused the evidence of

P.W.1 and P.W.2 and found that the Advocate for the 10 defendants except putting a few suggestions failed to discredit their evidence.

11)Therefore, for the reasons stated above, the plaintiff successfully established his title and also the encroachment of 8 guntas into his land by the defendants and the lower court failed to consider the said aspect and passed an erroneous judgment.

12)POINT NO.2:- If so, to what relief?

In the result, the appeal is allowed with costs and OS No.48 of 2013 on the file of Senior Civil

Judge’s Court, Wanaparthy is hereby decreed with

costs and the plaintiff is declared as owner of the suit schedule property and the defendants are directed to handover possession of six guntas on the Eastern side and two guntas on the Western side of the suit schedule property to the plaintiff within three months from today, failing to do so the plaintiff is at liberty to proceed against them by way of execution proceedings.

Dictated to the Steno-Typist of this Court, transcribed

and typed by him, corrected and pronounced by me in the open court on this the 27th day of December, 2018.

Sd/-

IX.Additional District Judge, 11

Wanaparthy,

APPENDIX OF EVIDENCE

Nil.

Sd/-

IX.Additional District Judge, Wanaparthy.

IN THE COURT OF

Additional District and Sessions Judge AT WANAPARTHY

,MAHABOOBNAGAR

Presided Over by Alluri Srinivasa Kumar

EP/284/2017

Exhibit No.:

: Shriram City Union Fin. Ltd.Wanaparthy Br. Rep. by its GPA Holder Age: 35 Occupation : Address: Divisional Manager, Division Office, Mahabubnagar as GPA holder of the company

VERSUS : T.Anjaneyulu Age: 0 Occupation : Address: H.No.9-42, Raigadda, Wanaparthy 2:G.Roshnaiah Age: 0 Occupation :

3:P.Manyam Age: 0 Occupation ----------------------------------------------------------------------------------------- Advocate for : B.Gopal Reddi Advocate for : appearing for T.Anjaneyulu: Advocate , appearing for 2, 3 respectively.

(Delivered on 26-12-2018 )

ORDER

Salary attachment warrants of J.Dr.2 and 3 served and effected. Hence, EP is closed

Date : 26-12-2018 (Alluri Srinivasa Kumar)

Additional District and Sessions Judge

WANAPARTHY

,MAHABOOBNAGAR

IN THE COURT OF

Additional District and Sessions Judge AT WANAPARTHY

,MAHABOOBNAGAR

Presided Over by Alluri Srinivasa Kumar

EP/285/2017

Exhibit No.:

: Shriram City Union Fin. Ltd. Wanaparthy Branch. Rep.by GPA Holder Age: 35 Occupation : Address: Divisional Manager, Division Office Mahabubnagar as GPA holder of the company

VERSUS : G.Narasimha Age: 0 Occupation : Address: Business H.No.32-103/1, Ward No.17, Thirumala colony, Wanaparthy 2:C.Venkat Swamy Age: 0 Occupation :

3:K.Satyanarayana Age: 0 Occupation ----------------------------------------------------------------------------------------- Advocate for : B.Gopal Reddi Advocate for : appearing for G.Narasimha: Advocate , appearing for 2, 3 respectively.

(Delivered on 26-12-2018 )

ORDER

Salary attachment warrant of J.Dr.2 served. Hence, EP is closed

Date : 26-12-2018 (Alluri Srinivasa Kumar)

Additional District and Sessions Judge

WANAPARTHY

,MAHABOOBNAGAR

IN THE COURT OF

Additional District and Sessions Judge AT WANAPARTHY

,MAHABOOBNAGAR

Presided Over by Alluri Srinivasa Kumar

EP/163/2016

Exhibit No.:

: Shriram City Union Finance Limited, Wanaparthy Br. Age: 0 Occupation : Address: Represented by its G.P.A.Holder Nagireddy, Senior Manager, Division Office, Mahabubnagar.

VERSUS : K.Venkatesh Age: 0 Occupation : Address: 33 years, Agriculture, ro. H.No.2-32C, Busireddypally village of Pangal manal.

2:N.Krishnaiah Age: 0 Occupation :

3:K.Indriah Age: 0 Occupation ----------------------------------------------------------------------------------------- Advocate for : B.Gopal Reddy Advocate for : appearing for K.Venkatesh: Advocate , appearing for 2, 3 respectively.

(Delivered on 27-12-2018 )

ORDER

Salary attachment warrant of JDR.3 served. Hence, EP is closed.

Date : 27-12-2018 (Alluri Srinivasa Kumar)

Additional District and Sessions Judge

WANAPARTHY

,MAHABOOBNAGAR