Sri B.B. Nagendra Rao

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IN THE COURT OF FAMILY-CUM-VIII-ADDITIONAL DISTRICT JUDGE :

ONGOLE.

Present: Sri B.B.Nagendra Rao, Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII-Additional District Judge, Ongole. Thursday, this the 18th day of February, 2016

APPEAL SUIT NOs.41 /2013 & 42/2013

APPEAL SUIT No.41/2013 :

Between:

Paruchuri Ram Kumar S/o.Venkateswarlu, Hindu, aged about 35 Yrs, Land-lord, R/o.Lakshmipuram Village, Nellore-2, Nellore District … APPELLANT/PLAINTIFF

And

1.Pothuri Badari Narayana adopted son of Rosaiah, aged 70 Yrs, Hindu, Agriculturist 2.Pothuri Sreenivasulu S/o.Badari Narayana, aged about 42 Yrs, Hindu, Agriculturist 3.Pothuri Venkateswara Rao S/o.Badari Narayana,

aged about 40 Yrs, Hindu, Employee ..RESPONDENTS/DEFENDANTS

(All are R/o.Woollapalem Village, Singarayakonda Mandal, Prakasam District)

On appeal against the Decree and Judgment, dated 10.09.2012 passed in

O.S.No.92/2003 on the file of Senior Civil Judge's Court, Kandukur, in

Between

Paruchuri Ram Kumar … PLAINTIFF

And

1.Pothuri Badari Narayana 2.Pothuri Sreenivasulu

3.Pothuri Venkateswara Rao ... RESPONDENTS

APPEAL SUIT NO.42/2013

Between:

1.Paruchuri Venkateswarlu S/o.Subrahmanyam Hindu, aged about 65 Yrs.,Business R/o.3/331, Lakshmipuram, Nellore 2.Paruchuri Subrahmanyam S/o.Venkateswarlu Hindu, aged about 38 Yrs.,Business R/o.3/331, Lakshmipuram, Nellore 3.Paruchuri Ram Kumar S/o.Venkateswarlu Hindu, aged about 35 Yrs.,

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R/o.3/331, Lakshmipuram, Nellore 4.Ponduri Peda Rama Lingaiah S/o.Koti Reddy Hindu, aged about 65 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 5.Ponduri China Rama Lingaiah S/o.Koti Reddy Hindu, aged about 60 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 6.Ponduri Siva Reddy S/o.Koti Reddy Hindu, aged about 58 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 7.Ponduri Rama Krishna Reddy S/o.Koti Reddy Hindu, aged about 55 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 8.Ponduri Koti Reddy S/o.China Ramalingaiah Hindu, aged about 36 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District … APPELLANTS/DEFENDANTS

And

1.Pothuri Badari Narayana adopted son of Rosaiah, aged 70 Yrs, Hindu, Agriculturist 2.Pothuri Sreenivasulu S/o.Badari Narayana, aged about 42 Yrs, Hindu, Agriculturist 3.Pothuri Venkateswara Rao S/o.Badari Narayana,

aged about 40 Yrs, Hindu, Employee ..RESPONDENTS/PLAINTIFFS

(All are R/o.Woollapalem Village, Singarayakonda Mandal, Prakasam District)

On appeal against the Decree and Judgment, dated 10.09.2012 passed in

O.S.No.94/2002 on the file of Senior Civil Judge's Court, Kandukur, in

Between 1.Pothuri Badari Narayana 2.Pothuri Sreenivasulu 3.Pothuri Venkateswara Rao … PLAINTIFFS

And

1.Paruchuri Venkateswarlu 2.Paruchuri Subrahmanyam 3.Paruchuri Ram Kumar 4.Ponduri Peda Rama Lingaiah 5.Ponduri China Rama Lingaiah 6.Ponduri Siva Reddy 7.Ponduri Rama Krishna Reddy

8.Ponduri Koti Reddy... DEFENDANTS

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These TWO Appeals coming on 04.02.2016 for final hearing before me in the presence of Sri K.S.Prasada Rao, Advocate for the Appellant and of Sri

K.Venkateswarlu, Advocate for respondents in A.S.No.41/2013 and Sri

K.S.Prasada Rao, Advocate for Appellants, Sri K.Raghava Rao, Advocate for

Respondents 1 and 2 and Respondent No.3 remained ex parte in A.S.42/2013, upon perusal of the Order of the lower Court, oral and documentary evidence and other material available on record and having stood over till this day for consideration, this Court delivered the following:-

// C O M M O N J U D G M E N T //

1.Both A.S.41/2013 and 42/2013 are arise out of common Judgment passed in O.S.92/2003 and O.S.94/2002 on the file of Senior Civil Judge, Kandukur, dated 10.09.2012.

2.O.S.94/2002 was filed for grant of permanent injunction restraining the defendants, their men from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule properties and for costs, whereas the 3rd defendant Paruchuri Ram Kumar in O.S.92/2003 filed this suit for partition against defendants 1 to 3, who are the plaintiffs in the above suit.

3.The plaintiff in O.S.92/2003 is the 3rd defendant in O.S.94/2002 whereas the defendants in O.S.92/2003 are the plaintiffs in O.S.94/2002.

4.The brief averments of the respondents/plaintiffs in O.S.94/2002, in the trial

Court, are as follows :-

One Pothuri Audemma after the death of her husband Rosaiah, adopted the 1st plaintiff, executed and registered the adoption deed on 07.08.1968 and himself along with his sons plaintiffs 2 and 3, inherited their properties viz., 1(a), 1(d), 2 and 3 of the plaint schedule also 1(b), 1(c), 4 and other properties, paying land revenue and in token of their possession, the revenue department issued pattadar passbook in favour of the 1st plaintiff. While so, the son of brother of Pothuri

Rosaiah and his sons defendants 2 and 3 without any manner of right, started rising objections to the process of cultivation by the plaintiffs and threaten that they

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would damage the existing crops and hence they have constrained to file the above suit.

5.(a) Per contra, denying all the material allegations of the plaint, defendants 1 and 3 filed written statement contending that the suit for permanent injunction alone is not maintainable that though the plaint schedule properties are in the name of Rosaiah, he purchased them with the joint family money and enjoyed them only as manager of the joint family but not in his individual right. Rosaiah did not adopt the 1st plaintiff. But, his wife Audemma executed a deed of adoption in favour of the 1st plaintiff who obtained pattadar passbook managing the revenue people. In fact, Rosaiah and his brother Peraiah Setty continued the family business of their father Iyyanna. The said Rosaiah purchased part of Item Nos.1, 2 and 3 through a registered sale deed, dated 27.08.1925 and 10 years later, he purchased the remaining part of Item No.1 and item No.4 of the plaint schedule properties from out of the income derived from the lands covered under the above registered sale deed and also from the joint family income. Apart from the plaint schedule properties, both the brothers have other properties and are enjoying them. After the death of both the brothers, while the widow of Peraiah Setty by name Jalamma with his son Iyyanna Setty went to her Sister Kota Peramma at

Nellore, Audemma called her sister Kovamma along with her two sons by name

Raha Krishna and 1st plaintiff from Kotha peta to settle with her. After attaining majority Iyyanna Setty did business along with Paruchuri Subrahmanyam, who is the son-in-law of Peramma. While, Audemma had been in possession and enjoyment of the entire joint family properties on her behalf and also on behalf of the family of Peraiah Setty. When the said Audemma proposed to take her sister's son i.e., 1st plaintiff Badari Narayana, Iayyanna Setty advised to take the 1st defendant and accordingly a deed of adoption was written and executed by

Audemma. Even after adoption, the joint family properties were not partitioned between Audemma on one hand and Jalamma and Iyyanna Setty on the other hand and as they were enjoying the properties jointly, the names of Audemma and

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Iyyanna Setty were incorporated in the village accounts as joint owners. Initially the ryotwari passbook was also issued in the names of Audemma and Iyyanna setty, the plaint schedule properties are not the full and absolute properties of the plaintiffs.

(b)Later, Iyyanna Setty married one Lakshmi Suseela and got a daughter by name Kamakshamma and performed her marriage with 1st defendant Paruchuri

Venkateswarlu and they got three sons and a daughter. Iyyanna Setty after the death of his wife re-married one Vijaya Kumari but did not get any issues through her but acquired considerable properties on his own by doing business along with

Paruchuri Subrahmanyam at Nellore and since the said Subrahmanyam did not beget any issues, he adopted Paruchuri Venkateswarlu.

(c)While so, Iyyanna Setty executed his last will, dated 11.10.1981 in a sound and disposing state of mind at Nellore bequeathing various properties in favour of his second wife Vijaya Kumari and his daughter Kamakshamma, Defendants 2 and

3. The said Iyyanna Setty put the said will in a sealed cover in the office of Sub-

Registrar, Nellore, and after his death, the 1st defendant obtained it and registered on 23.08.1985 as per which 3rd defendant herein is absolute owner of ½ share of

Iyyanna Settyin in the joint family properties at Woollapalem. As this defendant was a minor by then, his father 1st defendant herein, maintained the plaint schedule properties and other properties belonging to Iyyanna Setty. The plaintiffs and defendants are businessmen originally and therefore they have leased out their lands to Defendants 4 to 8. While so, the 1st plaintiff, taking undue advantage of the absence of defendants 1 to 3 in the village, entertained an evil idea of grabbing all the plaint schedule properties and managed the revenue officials and got his name mutated in the village accounts without the knowledge and consent of defendants 1 to 3. Audemma also passed away in the year 1989. Therefore, by virtue of the will, the 3rd defendant has become a co-owner and co-sharer for the plaint schedule properties and he has been in possession and enjoyment of his ½ share, therefore,

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the 1st plaintiff can not maintain a suit for permanent injunction against co-owner.

Defendants 4 to 8 tried to purchase the share of 3rd defendant and therefore, they are necessary to be impleaded. The plaintiffs did not approach the Court with clean hands and therefore, they are not entitled for any injunction.

6.Whereas the brief averments of the plaintiff in O.S.92/2003 are as follows :

(a)that one Pothuri Iyyanna of Woollapalem village had two sons namely

Rosaiah and Peraiah Setty and after his death both the sons continued their family business and Rosaiah being elder of them, took the management of the joint family and purchased the plaint schedule items from out of income of the joint family properties. The joint family also has got a vacant site known as Pothuri Iyyanna

Setty and Audemma Choultry in Sy.No.19 of Woollapalem village in an extent of

Ac.0.25 cents apart from house properties, which are shown as items 8 to 10. And of them, elder brother was not blessed with any children while the younger brother blessed with a son by name Iyyanna Setty. After the death of both the brothers, wife of Peraiah setty i.e., Jalamma along with her minor son Iyyanna Setty went to her sister's house by name Kota Peramma at Nellore, so also wife of Rosiah, i.e.,

Audemma invited her sister Kovamma along with her two sons by name

Ramakrishna and Badari Narayana to live with her at Woollapalem and thereafter

Audemma adopted Badari Narayana, executed a registered adoption deed. After the death of Audemma, with the help of her sister and brother-in-law had been in possession and enjoyment of the joint family properties left by Rosaiah and

Peraiah Setty.

(b)While so, after attaining majority, Iyyanna Setty did business along with one

Paruchuri Venkateswarlu who is the son-in-law of Kota Peramma, who is none other than the sister of his mother. Iyyanna Setty also used to visit Woollapalem village frequently and used to look after the welfare and wellbeing of Audemma and so also looked after the joint family properties and they enjoyed the plaint schedule properties jointly. Even after the adoption of Badari Narayana by Audemma, there

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was no partition between the joint family members, but, however, as Audemma and

Iyyanna Setty are enjoying the properties jointly. The revenue authorities also issued ryotwari passbook in the name of Audemma and Iyyanna Setty.

Subsequently Iyyanna Setty married one Lakshmi Suseela and begot a daughter by name Kamakshamma and on the death of his first wife Suseela, again he married another lady by name Vijaya Kumari as his second wife, but no issues were borne to them. Iyyanna Setty performed his daughter's marriage with one

Paruchuri Venkateswarlu and the said Kamakshamma begot three sons and a daughter. Among them the plaintiff is the 2nd son of Kamakshamma. Iyyanna Setty acquired considerable properties of his own by doing business along with

Paruchuri Subrahmanyam. Since the said Subrahmanyam had no issues, he adopted Paruchuri Venkateswarlu, who is the son-in-law of Iyyanna Setty.

Thereafter, said Iyyanna Setty executed a will in a sound and disposing state of mind on 14.10.1981 at Nellore bequeathing most of his properties to his wife and his share in the plaint schedule properties to the plaintiff herein. On the death of

Iyyanna Setty the said will came into force. Since the said will was kept in a sealed cover in the office of Sub-Registrar, Nellore. Paruchuri Venkateswarlu, who is the father of the plaintiff filed petition and got opened the sealed cover and registered on 23.08.1985 as per which the entire ½ share of Iyyanna Setty in the plaint schedule joint family properties situated in Woollapalem village were bequeathed to the plaintiff alone. Since the plaintiff was a minor by then, his father Paruchuri

Venkateswarlu has managed the plaint schedule properties and other properties of

Iyyanna Setty. Thereafter, the father of the plaintiff and the 1st defendant together donated an extent of 1231 sq. Yards in Sy.No.19 to High School of Woollapalem village in the year 1992. While so, the 1st defendant who took up the management of the joint family properties being an elder person, around five years prior to the death of Audemma had entertained an evil idea of grabbing all the properties taking undue advantage of the absence of the plaintiff and his family members at

Woollapalem village and therefore, to deprive his right, he also managed the

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revenue department and got incorporated his name in the village and Panchayat accounts. When the plaintiff and his father thought of disposing their share in the plaint schedule properties to one P.Kotireddy and his sons, the 1st defendant filed a suit in O.S.94/2002 for grant of permanent injunction and obtained the ex parte order of injunction behind their back. The 1st defendant herein who is the 1st plaintiff in the said suit, approached the Court with unclean hands and therefore, he is not entitled for injunction. 1st defendant is not absolute owner of Items 1 to 4 of the plaint schedule and always maintained the same only as a co-sharer and co-owner and as the 1st defendant is not coming forward for amicable partition, he is constrained to file the suit for partition of the joint family properties.

(c)Per contra, the 3rd defendant filed written statement adopted by defendants 1 and 2 contending that the suit filed by the plaintiff is not maintainable under law, but the relationship set out in Para No.4 of the plaint is true, but it is false to contend that Pothuri Iyyanna was carried on any Kirana and other businesses along with his sons Rosaiah and Peraiah Setty. It is true that the said Iyyanna died intestate but he had no estate. Therefore, the question of devolving such estate upon his sons Rosaiah and Peraiah Setty does not arise. Therefore, the said

Rosaiah and Peraiah Setty also did not continue the alleged joint business and they did not live under one roof, as alleged. The joint family had no trade at all.

Rosaiah carried on the trade on his own and earned money and acquired properties. Rosaiah acquired items 1 to 7 of plaint schedule by virtue of two registered sale deeds, dated 01.11.1934 and 27.08.1925. As far as Item No.8 of the plaint schedule is concerned, originally it is the government site and the same was occupied by Rosaiah and constructed room with his own funds. So far as Item

No.9 is concerned, it was also purchased by him with his own funds from one

Tanguturi Mahalakshamma by virtue of a registered sale deed, dated 21.12.1932.

As far as Item No.10 is plaint schedule is concerned it was also purchased by

Rosaiah for a sum of Rs.5,010/- from Official Receiver, Nellore in Proceedings in

I.P.04/1975 through the registered sale deed, dated 22.08.2008. Therefore, it is

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false to contend that items 8 to 10 of the plaint schedule are the joint family properties. Actually Rosaiah brought up 1st defendant Badari Narayana as his own son and thereafter died intestate and after his death, his widow Audemma executed adoption deed and it was also duly registered and attested. Iyyanna Setty who is the son of Peraiah Setty was also one of the attestors for the said adoption deed. Thus, the 1st defendant became the adopted son of Rosaiah and Audemma and he became absolute owner in respect of the plaint schedule properties and the other properties after the death of Audemma. Defendants 2 and 3 are the sons of 1st defendant and thereby they constitute joint family. At the instigation of Ponduri

Koti Reddy and his family members, the plaintiff and his father and brother have started threatening the defendants herein and therefore, they were constrained to file the suit in O.S.94/2002 and also obtained an ex parte orders of injunction in

I.A.1714/2002 and the said ex parte orders of injunction have also been made absolute on contest on 26.08.2003. Therefore, it is not open to the plaintiff to contend that he is in joint possession with the defendants herein and payment of

Court Fees under Section 34 (2) of ACF & SV Act is also absurd. The very suit for partition without praying for declaration of plaintiff's right is not maintainable. The plaintiff has been claiming his property being a legatee under the will but none of these properties are mentioned in the said will. All the plaint schedule properties are situated in Binginapalli village but not in Woollapalem village. Therefore, even if the said will is true, it does not clothe the plaintiff with any right to maintain this suit, since the alleged will is not in respect of the plaint schedule properties. Therefore, the very contention of the plaintiff that Audemma and Iyyanna Setty were jointly enjoying the properties is absolutely false. The plaintiff is the resourceful person to get the village accounts tampered. The ryotwari passbook was issued in the name of Audemma and no passbooks were issued in the name of Iyyanna Setty. Actually

Iyyanna Setty and Audemma jointly purchased only one property under registered sale deed, dated 31.12.1967 from one T.Iyyanna Setty and others, i.e., an extent of

Ac.0.09 cents. While so, Rosaiah who is the husband of Audemma acquired rest of

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the properties of his own. The said property was already gifted to High School by

Venkateswarlu and the 1st defendant Badari Narayana and therefore, the plaintiff has nothing to do with the same. The very contention of the plaintiff that Rosaiah acquired plaint schedule items with joint family funds etc., is false. Jalamma has always been residing at Nellore subsequent to the death of her husband. Peraiah

Setty and Iyyanna Setty did the business along with Paruchuri Subrahmanyam and earned a lot. Therefore, there are no joint family properties at all between Rosaiah and Peraiah Setty, therefore, it is false to contend that Peraiah Setty had ½ share and the said ½ share has been devolved upon his widow Jalamma and Iyyanna

Setty, is false. Accordingly Iyyanna Setty went to Nellore and Carried on the business in partnership along with others and acquired huge properties and he is no way concerned with the properties acquired by the Rosaiah with his own funds and vice-versa. It is false to contend that Iyyanna Setty had been visiting

Woollapalem village frequently and so looking after the welfare and wellbeing of

Audemma. There were no joint family properties at all and therefore, the question of partitioning them between Audemma on one side and Jalamma and her Son

Iyyanna Setty on the other hand does not arise. It is true Iyyanna Setty acquired considerable properties on his own and Similarly Rosaiah acquired properties on his own and except the site which is jointly purchased at Woollapalem there are no other joint family properties in between Audemma and Iyyanna Setty. This defendant is not aware of execution of any will, dated 14.10.1981 by Iyyanna Setty and it is for the plaintiff to prove the said will before the Court. It is absolutely false to contend that Ponduri Koti Reddy and his sons were given lease of the properties. The alleged lease is false. There is no cause of action for the present suit and it may be dismissed.

7.The learned Senior Civil Judge, Kandukur, after conducting joint trial in both the cases and after hearing both counsels decreed O.S.94/2002 with costs granting permanent injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the plaintiff in respect of

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the plaint schedule properties, but dismissed the suit in O.S.92/2003 without costs.

8.(a)Aggrieved by the Judgment decreeing the suit in O.S.94/2002 the defendants therein preferred A.S.No.42/2013 with the following grounds :

(1) The Judgment and decree of the lower Court is contrary to law, weight of evidence and probabilities of the case; (2) The lower Court ought to have stated that the suit schedule property is joint family property; (3) the lower Court ought to have stated that there can not be an injunction against a co-owner; (4) the lower Court ought to have stated that the suit property is the joint property of Rosaiah and Peraiah; (5) the lower Court ought to have stated that Rosaiah purchased the suit schedule property as a manager of the joint family; (6) the lower Court ought to have believed the evidence of D.W.1 and ought to have stated that there is a joint family between Rosaiah and

Peraiah as per the evidence of D.W.1; (7) the lower Court ought to have believed the evidence of defendants and dismissed the suit

(b).Whereas the grounds of appeal in A.S.41/2013 in nutshell reads as under :- (1) The Judgment and decree of the lower Court is contrary to law, weight of evidence and probabilities of the case; (2) The lower Court lost site of the fact that both parties are Vysyas and their vocation is trade and the property belonging to trading family; (3) the lower Court ought to have stated that Exs.B2 and B3 properties are the joint family properties and nucleus has come from out of the business; (4) The lower Court lost site of the fact that the respondents did not pray that they are having any separate business than the joint family business; (5) the lower Court ought to have stated that it is not possible to show documentary evidence at the time of execution of Exs.B2 and

B3 which are ancient documents; (6) The lower Court ought to have draw presumption that there is joint family business to Rosaiah and Peraiah Setty;

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(7) The lower Court lost site of the fact that there is no partition between Rosaiah and Iyyannasetty; (8) The lower Court having stated Iyyanna, Rosaiah and Peraiah are joint family members and Rosaiah and Peraiah succeeded to the property of Iyyannasetty; (9) The lower Court failed to consider that Iyyannasetty the father of

Rosaiah and Peraiah have got house and they are having business; (10) The lower Court's observation that there is no proof of business is not correct; (11) The lower Court ought to have stated that Rosaiah purchased

Exs.B2 and B3 properties with the funds of joint family while Rosaiah and Peraiah are joint; (12) The lower Court ought to have noted that there is no partition between Rosaiah and Peraiah after the death of their father

Iyyannasetty; (13) The Lower Court's observation that there is no documentary evidence to show that there are properties to Iyyannasetty is not correct; (14) the Lower Court ought to have visualized the family affairs at that point of time i.e., 1925 and 1934 and ought to have stated that

Iyyannasetty, Rosaiah and Peraiah have doing joint business; (15) The lower Court ought to have considered the evidence of

D.W.1 and must have stated that the evidence of D.W.1 is an admission under the Evidence Act and no further proof is necessary to prove the case of plaintiff; (16) The lower Court ought to have stated that the evidence of D.W.1 is given voluntarily and consciously and there is no reason for the lower Court to assume a fact; (17)The lower Court ought to have stated that it is not necessary that the family to possess immovable property to purchase immovable property; (18) the Lower Court ought to have stated that the properties are being cultivated jointly; (19) The lower Court ought to have stated that as Iyyanna is the owner of the property, his name is entered in Adangals etc.,

9.Written arguments filed for appellants and 'no' written arguments filed for respondents, hence posted for Judgment on merits.

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10.Now, the point that arises for consideration is :-

“ Whether the appeals in A.S.41/2013 & A.S.42/2013 are to be

allowed by setting aside the Judgment of Senior Civil Judge,

Kandukur, passed in O.S.92/2003, and to decree the suit with costs

through out by setting aside the Decree and Judgment of Senior

Civil Judge, Kandukur in O.S.94/2002, dated 10.09.2012 by

dismissing the suit with costs through out as prayed for ? ”

11.Both A.S.41/2013 and 42/2013 are arise out of “common Judgment” in

O.S.94/2002 and O.S.92/2003 on the file of Senior Civil Judge, Kandukur, dated

10.09.2012.

12.The Judgment of the Learned Senior Civil Judge, Kandukur reads as follows:-

“ ...Under these circumstances the suit in O.S.92/2003 filed for

partition is not maintainable as the plaint schedule properties are

found to be the self-acquired properties of deceased Rosaiah.... ”

“ .....So also it is evident from the record that the defendants 1 to 3

in O.S.94/2002 tried to interfere with the peaceful possession and

enjoyment of the plaintiffs, taking the support of defendants 4 to

8 therein and therefore certainly the plaintiffs in O.S.94/2002 are

entitled for permanent injunction. Therefore, these issues are

decided in favour of the Defendants and against the Plaintiff.... ”

“ .....In the result, the suit in O.S.94/2002 is decreed, with costs by

way of permanent injunction restraining the defendants and their

men from interfering with the peaceful possession and enjoyment of

the Plaintiff in respect of the plaint schedule properties, whereas

the suit in O.S.92/2003 is dismissed. No costs..... ”

13.The schedule in A.S.No.41/2013 is as follows :-

(a)Prakasam District Registration – Singarayakonda Sub-Registration - lands situated at Binginapalli Village, Singarayakonda Revenue Mandal of

Prakasam District.

Item No.1 :Sy.No.Extent : Ac-CentsValue Rs: a382 1.5546,500 b383/1 0.207,000 c384/1 2.911,39,000 d384/2 1.4569,600 Total Ac. 6.11 cents

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Bounded by: -

(b)Item No.1:

East : Pulaka kaluva South: Land of Badari Narayana to some extent and the Government land some extent West : Land of Kareti Siva Reddy and others North: Land of Kunchala Venkateswarlu to some extent and land of Nukasani Venkaiah to some extent and Samunthala Subbaravamma and others to some extent

Total Market Value is Rs.2,62,780/-

(c)Item No.2 :

S.No.385/2 an extent of Ac.0.35 cents bounded by :

East : Land of Nukasani Venkaiah South: Land of Pakala Abbulu West : Land of Pakala Abbulu North: Panta Kaluva

Market Value is Rs.12,250/-

(d)Item No.3 :

S.No.379 an extent of Ac.0.57 cents bounded by :

East : Panta Kaluva South: Panta Kaluva West : Land of Chalamcherla Venkateswarlu North: Cheruvu

Market Value is Rs.19,950/-

(e)Item No.4 :

S.No.501 an extent of Ac.1.42 cents bounded by :

East : Land of Kareti Koti Reddy and others South: Land of Bathula Ramalingareddy to some extent and land of Kareti Sanka Reddy to some extent and others West : Land of Kaareti Seshi Reddy North: Panta Kaluva

Market Value is Rs.49,700/-

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(f) Item No.5 :

Wet land measuring an extent of Ac.0.61 cents comprised in Sy.No.114/1c. Market Value is Rs.21,000/-

(g) Item No.6 :

Wet land measuring an extent of Ac.0.08 cents comprised in Sy.No.114/1D Market Value is Rs.2,800/-

(h) Item No.7 :

Wet land measuring an extent of Ac.0.13 cents comprised in Sy.No.114/1E Market Value is Rs.4,550/-

(j) Item No.8 :

Room bearing Assessment No.170 of Woollapalem Village of

Singarayakonda Revenue Mandal of Prakasam District bounded by :

East : House of Pabbisetty Narayana South: Shop of Kothuri Vijaya Kumar West : Shop of Pothuri Subbaratnam North: Road

Within the above said four boundaries room with Mangalore tiles measuring an extent of 11x16 ½ ft. which makes a total extent of 20.16 sq.yards.

Market Value is Rs.8,350/-

(k) Item No.9 :

Room bearing Assessment No.508 and vacant site of

Woollapalem Village of Singarayakonda Revenue Mandal of

Prakasam District bounded by :

East : Road South: Shop of Thummapudi Jayamma West : Ch.Satyanarayana North: House of Kanumarlapudi Satyanarayana

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Within the above said four boundaries room with Mangalore tiles measuring an extent of 147.88 sq.yards (Room 41.55 sq.yards)

Market Value is Rs.20,512/-

(l)Item No.10 :

Madras terraced room bearing Assessment No.522 of

Woollapalem Village of Singarayakonda Revenue Mandal of

Prakasam District bounded by :

East : Vacant site of Cheethirala Satyanarayana South: Road West : House of Kanumarlapudi Subba Rao North: Compound wall of Boggavarapu Subbarathamma

Within the above said four boundaries a dilapidated Madras terraced room measuring an extent of 43.3 sq.yards in a total extent of vacant site of 522 sq.yards.

Market Value is Rs.49,014/- Total market value of items 1 to 10 is Rs.4,50,906/- Plaintiff's half share value is Rs.2,25,453/- ¾ of the plaintiff's share value is Rs.1,69,089-75 ps.,

(m) Whereas the schedule in A.S.42/2013 is as follows :

Prakasam District Registration – Singarayakonda Sub-

Registration - lands situated at Binginapalli Village,

Singarayakonda Revenue Mandal of Prakasam District.

Item No.1 :Sy.No.Extent : Ac-CentsValue Rs: a382 1.5546,500 b383/1 0.207,000 c384/1 2.911,39,000 d384/2 1.4569,600 Total Ac. 6.11 cents

Bounded by: -

East : Pulaka kaluva

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South: Land of Badari Narayana to some extent and the Government land some extent West : Land of Kareti Siva Reddy and others North: Land of Kunchala Venkateswarlu to some extent and land of Pakala Abbulu to some extent land of Nukasani Venkaiah to some extent and Samunthala Subbaravamma and others to some extent

Total Market Value is Rs.3,00,000/-

(n) Item No.2 :

S.No.385/2 an extent of Ac.0.35 cents bounded by :

East : Land of Nukasani Venkaiah South: Land of Pakala Abbulu West : Land of Pakala Abbulu North: Panta Kaluva

Market Value is Rs.17,500/-

(o)Item No.3 :

S.No.379 an extent of Ac.0.57 cents bounded by :

East : Panta Kaluva South: Panta Kaluva West : Land of Chalamcherla Venkateswarlu North: Cheruvu

Market Value is Rs.28,500/-

(p)Item No.4 :

S.No.501 an extent of Ac.1.42 cents bounded by :

East : Land of Kareti Koti Reddy and others South: Land of Bathula Ramalingareddy to some extent and land of Kareti Sanka Reddy to some extent and others West : Land of Kaareti Seshi Reddy North: Panta Kaluva

Market Value is Rs.71,000/-

14) Point :-

The suit in O.S.94/2002 filed for “injunction”; whereas O.S.92/2003 is filed for “partition”.

18

15.The Learned Senior Civil Judge, Kandukur 'dismissed' the suit in

O.S.92/2003 filed for partition, accordingly decreed O.S.94/2002 granting injunction

in favour of plaintiffs/respondents.

16.The case of plaintiffs/appellants/P.W.1, P.W.3 is that they are enjoying plaint schedule properties along with respondents as joint family members and had been in possession and enjoyment of the joint family properties left by brothers Rosaiah and Peraiah Setty; Audemma has been in possession and enjoyment of the entire joint family properties on her behalf and on behalf of the family of Peraiah Setty, therefore they are entitled for partition and separate possession. The documents relied on by the plaintiffs/appellants/P.Ws.1 and 3 are Exs.A1 to A24, marked

before the learned Senior Civil Judge Court, Kandukur.

17.Upon careful scrutiny of the oral or documentary evidence before the Lower

Court and Appellate Court, is evidence of P.W.1/appellant/plaintiff in O.S.92/2003

Paruchuri Ram Kumar, is very much crucial.

18.The evidence of P.W.1 (in O.S.92/2003) during cross examination reads as follows :

“ .....It is a fact that items 1 to 7, 9 and 10 were purchased by

Rosaiah. It is a fact that Rosaiah died prior to the year of 1956. I

do not know whether there is any documentary evidence to show

that Ayyanna used to have properties by the date of his death.... ”

“ .....There is no documentary evidence to show that my father and

Badiri Narayana succeeded the property from their ancestors. I do

not know whether Audemma and Ayyannasetty had jointly purchased

the property donated to the High School on 31.11.1967. I do not

know as to how Rosaiah had acquired items 1 to 7, 9 and 10. It is a

fact that Rosaiah had no children.. ”

19

“ ...It is a fact that Ayyannasetty is a partner in Parchuri

Subrahmanyam and Company and also in Ayyannasetty Company. It is

a fact that Ayyannasetty had house properties at Stonehouse Pet

and Santhapet at Nellore and he also had a taxi.. ”

“ ....It is a fact that except my oral evidence there is no other

documentary evidence filed by me to show that Rosaiah inherited

properties from his father. I have no documentary evidence to show

that Iyyanna carried on business and that after the death of

Iyyanna the said business was also inherited by Rosaiah.... ”

“ ....It is a fact that Iyyanna Setty is having huge properties at

Nellore. Ayyannasetty was expired in the year of 1995. Except the

will executed by Iyyanna Setty I did not file any other documents in

this case to show that I am in possession of the plaint schedule

properties. All the plaint schedule properties are situated at

Binginapalli Village. It is a fact that in the will it was mentioned that

the properties of Vullapalem was bequeathed to me. The particulars

of the said properties was not mentioned in the will Ex.A1.... ”

19.The above admission of P.W.1 clearly goes to show that the plaintiff/ appellant in O.S.92/2003 is nothing to do with the items 1 to 7, 9 and 10 of the plaint schedule in O.S.94/2002. It is also a fact that the plaintiff relied on Ex.A1, but the said Ex.A1 does not refers to any properties and the same is admitted by

P.W.1. It is also a fact that the appellants are residing in Nellore, whereas the properties are located at Binginapalli village. So, appellants/plaintiffs/P.Ws.1 and 3 are nothing to do with the plaint schedule properties at Binginapalli village. It is a fact that Rosaiah, the son of Pothuri Ayyanna has acquired properties which are self acquired properties and neither Peraiah Setty nor Jalamma nor Ayyannasetty are concerned to the plaint schedule properties and hence, the plaintiffs can not seek any partition over the plaint schedule properties in O.S.92/2003. Even the

20

appellants/plaintiffs in O.S.92/2003 are 'not' in joint possession over the plaint schedule property in O.S.92/2003.

20.The learned Senior Civil Judge, Kandukur, rightly hold and concluded that items 1 to 7, 9 and 10 are the self acquired properties of deceased Rosaiah and therefore, the deceased Peraiah Setty does not have any half share as alleged, hence, the issue in O.S.92/2003 was decided in favour of defendants and against the plaintiffs.

21.The evidence of P.W.3 in O.S.92/2003/Parchuri Venkateswarlu, during cross examination reads as follows :

“ ....It is a fact that defendants 4 to 8 in O.S.94/2002 are my

supporters... ” “ ....Iyyanna Setty has got one female child.... ”

“ ......I did not file any document to prove that Iyyannasetty who is

the father of Rosaiah died possessing immovable property.... ”

“ .....Items 1 to 7 and item No.9 and Item No.10 were purchased by

one Rosaiah and the sale deeds are in his name.... ”

“ .....It is a fact that except revenue records filed on behalf of the

plaintiffs in this suit there is no other documentary evidence to

show that Ayyannasetty is having connection with the plaint schedule

property. The landed property is located at Binginapalli village. It is

a fact that in the will executed by Ayyannasetty it was not

mentioned that the properties are located at Binginapalli village and

that it was mentioned that the properties are located at Oollapalem.

It is a fact that in the will the survey number and the extents and

the boundaries of the properties were not mentioned..... ”

22.Apart from the evidence of P.Ws.1, 3, the evidence of P.W.5/S.Lakshmi

Rajyam supports the contention of the respondents/defendants/D.W.1.

21

23.Controversy over Adoption :

Though P.Ws.1 and 3, who are appellants/plaintiffs in O.S.92/2003 disputed the adoption, but admitted in entire pleadings and when they examined before the trail Court.

24.The evidence of P.W.1 during cross examination reads as follows :

“ .....It is a fact that Audemma had executed an adoption deed in

favour of Badiri Narayana. I have not seen the said document. It is a

fact that Ayyannasetty had also attested the adoption deed. The

above said Ayyannasetty is the son of Peraiahsetty.... ” “ ....It is a fact that D1 and his sons are living jointly.... ”

25.The evidence of P.W.2 Kommana Venkata Subbaiah during cross examination is as follows :

“ .....It is a fact that Badiri Narayana was adopted by Audemma.... ”

26.P.W.3 during cross examination has stated as follows :

“ ....It is a fact that Audemma adopted Badiri Narayana and

executed an adoption deed. It is a fact that in the adoption deed

Ayyanna had subscribed his signature..... ”

So, the evidence of P.Ws.1 to 3 clearly goes to show that D1/D.W.1/Pothuri

Badari Narayana is the adopted son of Audemma, the wife of Rosaiah, who are issue-less.

27.The lower Court upon due consideration answered Issue No.3 that the contents of Ex.P4 adoption deed is true and the 1st defendant Pothuri Badari

Narayana can be treated as an adopted son for the couple of Rosaiah and

Audemma, therefore, the issue was decided in favour of the defendants and against the plaintiff.

The evidence of P.W.2 also goes against the claim of the plaintiff/appellant in

O.S.92/2003 and the evidence of P.W.2 during cross examination reads as

22

follows :

“ .....Ayyannasetty stayed at Nellore. It is a fact that Badiri

Narayana was adopted by Audemma. It is a fact that all the

schedule properties are located in Binginapalli Village. Voollapalem is

the hamlet of Binginapalli. It is a fact that the 1 st defendant is

residing at Voollapalem. The suit schedule properties are being

cultivated by Badiri Narayana and one P.Venkateswarlu.

P.Venkateswarlu never paid land revenue to the suit schedule

property..... ”

28.The evidence of P.W.2 also goes to show and supports the contention of the defendants/respondents/D.W.1.

29.Upon due consideration of the facts, the learned Senior Civil Judge,

Kandukur, negatived the relief of the plaintiff in O.S.92/2003 holding that they are not entitled for partition of the plaint schedule properties in O.S.92/2003 which are exclusively belongs to Rosaiah, the husband of Audemma who adopted Pothuri

Badari Naraya/D.W.1.

30.The relief sought for by the plaintiffs in O.S.94/2002 is 'permanent injunction' over the plaint schedule properties mentioned therein. The plaintiffs in

O.S.92/2003 claimed 'partition' of the plaint schedule properties on the ground that

they are of joint family properties, but the same was not fit for consideration. At this juncture also, the evidence of P.Ws.1 to 3 during cross examination is very much crucial for consideration.

The evidence of P.W.1 in O.S.92/2003 reads as follows :

“ .....I did not file the land revenue receipts into Court... ”

“ .....Except the will executed by Iyyanna Setty I did not file any

other documents in this case to show that I am in possession of the

plaint schedule properties.... ”

23

31.The evidence of P.W.2 is that all the plaint schedule properties are being cultivated by Badiri Narayana which are located in Binginapalli, hamlet of

Oollapalem.

32.So also, P.W.3 admitted that he did not file any document to prove that

Iyyannasetty who is the father of Rosaiah, died possessing immovable property.

33.P.W.3 further admitted that he did not file any documentary evidence into

Court to show that the 1st defendant paid Maktha to the plaintiff, in his account books or in the account books of the plaintiffs, the income derived by the plaintiffs from the Makthas was not noted.

34.The evidence of P.W.5 also crucial at this juncture.

The evidence of P.W.5 during cross examination reads as follows :-

“ ....In Adangal for Fasli 1390 for S.No.383/1, 383/2 and 384/1 the

name of Ayyanna is written with different ink from the word

'Audemma'. It is true that where ever the name Audemma is there,

the name of Ayyanna is written by the side of it with different ink.

Even in Adangal for the Fasli 1389, where ever the name of

Audemma is there, the name of Ayyanna is written by the side of it

with different ink. Even in the Adangal for the Fasli 1383 to 1385,

1386 to 1389 the same things are mentioned. I can not say when the

name of Ayyanna is written in the above records. I can not say who

did it. I can not say whether the name of Ayyanna is subsequently

added in all the above records at the instance of plaintiff..... ”

35.The evidence of P.W.5 goes to show that where ever name of Audemma is there, the name of Ayyanna was written with different ink and the same is did by the appellant/plaintiff in O.S.92/2003 in order to get the revenue documents. In fact, the man that claims inheritance is Iyyannasetty, but not Iyyanna. So, there is clear tamper of revenue records by the appellant/plaintiff/P.W.1. From the

24

evidence of P.Ws.1 to 3, particularly P.W.5, it is clear that the defendants in

O.S.92/2003 who are plaintiffs in O.S.94/2002 are in possession and enjoyment of

the plaint schedule properties in O.S.94/2002 and accordingly they are entitled for permanent injunction. The lower Court categorically discussed Issues Nos.1 to 5 in O.S.92/2003 and Issues Nos.1 to 3 in O.S.94/2002. The defendants 1 to 3 in

O.S.94/2002 tried to interfere with the peaceful possession and enjoyment of the

plaintiffs taking the support of defendants 4 to 8 therein and therefore, Plaintiffs in

O.S.94/2002 and Defendants in 92/2003 are entitled for permanent injunction.

36.Basing on the above discussion and upon due consideration of the material available before the Court and considering the entire Judgment in O.S.94/2002 and

O.S.92/2003, dated 10.09.2012, this Court do 'not' find any irregularity or illegality

to interfere with the Judgment of the lower Court and the Judgment of the learned

Senior Civil Judge, Kandukur, does not warrants any interference and hence the

common Judgment in O.S.94/2002 and 92/2003, dated 10.09.2012 is entitled for confirmation.

37.In the result, the appeals are DISMISSED and the common Judgment passed by the Learned Senior Civil Judge, Kandukur, by decreeing the suit in

O.S.94/2002 and dismissing the suit O.S. 92/2003, dated 10.09.2012 is hereby

“Confirmed” with costs throughout.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in open Court, this the 18 th day of February, 2016.

Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII A.D.J.,

Ongole.

“ No” additional oral evidence is adduced and documents are marked on either side in this appeal.

Chairman,P.L.A., FAC/J.F.C.,

25

IN THE COURT OF FAMILY-CUM-VIII-ADDITIONAL DISTRICT JUDGE :

ONGOLE.

Present: Sri B.B.Nagendra Rao, Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII-Additional District Judge, Ongole. Thursday, this the 18th day of February, 2016

APPEAL SUIT NO. 42/2013

Between:

1.Paruchuri Venkateswarlu S/o.Subrahmanyam Hindu, aged about 65 Yrs.,Business R/o.3/331, Lakshmipuram, Nellore 2.Paruchuri Subrahmanyam S/o.Venkateswarlu Hindu, aged about 38 Yrs.,Business R/o.3/331, Lakshmipuram, Nellore 3.Paruchuri Ram Kumar S/o.Venkateswarlu Hindu, aged about 35 Yrs., R/o.3/331, Lakshmipuram, Nellore 4.Ponduri Peda Rama Lingaiah S/o.Koti Reddy Hindu, aged about 65 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 5.Ponduri China Rama Lingaiah S/o.Koti Reddy Hindu, aged about 60 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 6.Ponduri Siva Reddy S/o.Koti Reddy Hindu, aged about 58 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 7.Ponduri Rama Krishna Reddy S/o.Koti Reddy Hindu, aged about 55 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 8.Ponduri Koti Reddy S/o.China Ramalingaiah Hindu, aged about 36 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District … APPELLANTS/DEFENDANTS

And

1.Pothuri Badari Narayana adopted son of Rosaiah, aged 70 Yrs, Hindu, Agriculturist 2.Pothuri Sreenivasulu S/o.Badari Narayana, aged about 42 Yrs, Hindu, Agriculturist 3.Pothuri Venkateswara Rao S/o.Badari Narayana,

aged about 40 Yrs, Hindu, Employee ..RESPONDENTS/PLAINTIFFS

26

(All are R/o.Woollapalem Village, Singarayakonda Mandal, Prakasam District)

On appeal against the Decree and Judgment, dated 10.09.2012 passed in

O.S.No.94/2002 on the file of Senior Civil Judge's Court, Kandukur, in

Between 1.Pothuri Badari Narayana 2.Pothuri Sreenivasulu 3.Pothuri Venkateswara Rao … PLAINTIFFS

And

1.Paruchuri Venkateswarlu 2.Paruchuri Subrahmanyam 3.Paruchuri Ram Kumar 4.Ponduri Peda Rama Lingaiah 5.Ponduri China Rama Lingaiah 6.Ponduri Siva Reddy 7.Ponduri Rama Krishna Reddy

8.Ponduri Koti Reddy... DEFENDANTS

This Appeal is preferred by Defendants to set aside the Decree and

Judgment, dated 10.09.2012 passed against them in O.S.94/2002, filed by the plaintiffs for permanent injunction, was Decreed by the Leaned Senior Civil Judge,

Kandukur.

Appeal presented on : 19.01.2013Appeal filed on : 11.02.2013

Notional value of relief of permanent injunction, for the purpose of Court

Fees and Jurisdiction in the appeal is valued at Rs.1,05,000/- on which a Court

Fees of Rs.3,526/- is paid under section 26 (c) of APCF & SV Act, 1956.

This Appeal coming on 04.02.2016 for final hearing before me in the presence of Sri K.S.Prasada Rao, Advocate for Appellants, Sri K.Raghava Rao,

Advocate for Respondents 1 and 2 and Respondent No.3 remained ex parte, upon perusal of the Order of the lower Court, oral and documentary evidence and other material available on record and having stood over till this day for consideration, this Court Doth order and decree :

(1) that the appeal be and is hereby DISMISSED and the Judgment passed by the Learned Senior Civil Judge, Kandukur, in O.S. 94/2002,

dated 10.09.2012 is hereby “Confirmed”, and

(2) that the Appellants/Defendants do pay to the Respondents/Plaintiffs a sum of Rs.3,528/- in the suit and Rs.2/- in the Appeal bearing their own

27

costs of Rs.5,072/- in the Suit and – Nil - in Appeal as No C.M. & F.C. is filed.

Given under my hand and the seal of the Court, this the 18th day of February, 2016

Chairman, Permanent Lok Adalat, Ongole, FAC-VIII A.D.J., Ongole.

TABLE OF COSTS

For Respondents/Plaintiffs : For Appellants/Defendants :

1. Stamps on Appeal :Rs. - No C.M. & F.C. is filed

2. Stamps on Vakalat :Rs. 2-00

3. Advocate Fees :Rs. -

4. Type charges :Rs. - *Total:Rs. 2-00 * NB : Institutional costs allowed :

Chairman,P.L.A., FAC/V-A.D.J.,

28

IN THE COURT OF FAMILY-CUM-VIII-ADDITIONAL DISTRICT JUDGE :

ONGOLE.

Present: Sri B.B.Nagendra Rao, Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII-Additional District Judge, Ongole. Thursday, this the 18th day of February, 2016

APPEAL SUIT NO.41 /2013

Between:

Paruchuri Ram Kumar S/o.Venkateswarlu, Hindu, aged about 35 Yrs, Land-lord, R/o.Lakshmipuram Village, Nellore-2, Nellore District … APPELLANT/PLAINTIFF

And

1.Pothuri Badari Narayana adopted son of Rosaiah, aged 70 Yrs, Hindu, Agriculturist 2.Pothuri Sreenivasulu S/o.Badari Narayana, aged about 42 Yrs, Hindu, Agriculturist 3.Pothuri Venkateswara Rao S/o.Badari Narayana,

aged about 40 Yrs, Hindu, Employee ..RESPONDENTS/DEFENDANTS

(All are R/o.Woollapalem Village, Singarayakonda Mandal, Prakasam District)

On appeal against the Decree and Judgment, dated 10.09.2012 passed in

O.S.No.92/2003 on the file of Senior Civil Judge's Court, Kandukur, in

Between

Paruchuri Ram Kumar … PLAINTIFF

And

1.Pothuri Badari Narayana 2.Pothuri Sreenivasulu

3.Pothuri Venkateswara Rao ... RESPONDENTS

This Appeal is filed by the Plaintiff to set aside the Decree and Judgment passed on 10.09.2012 in O.S.92/2003 filed by him for partition, was dismissed by the Learned Senior Civil Judge, Kandukur.

Appeal presented on : 19.01.2013Appeal filed on : 11.02.2013

Though the Appeal is valued for the purpose of Court Fees and Jurisdiction at Rs.1,69,089-75 p.s., but as the suit was filed for partition of the suit schedule properties, a fixed Court Fees of Rs.200/- is paid under section 26 (c) of APCF &

SV Act, 1956.

29

This Appeal coming on 04.02.2016 for final hearing before me in the presence of Sri K.S.Prasada Rao, Advocate for the Appellant and of Sri K.

Venkateswarlu, Advocate for respondents, upon perusal of the Order of the lower

Court, oral and documentary evidence and other material available on record and having stood over till this day for consideration, this Court Doth order and decree :

(1) that the appeal be and is hereby DISMISSED and the Judgment passed by the Learned Senior Civil Judge, Kandukur, in O.S. 92/2003,

dated 10.09.2012 is hereby “Confirmed”, and

(2) that the Appellant/Plaintiff do pay to the Respondents/Defendants a sum of Rs. -Nil- in the suit and Rs.2/- in the Appeal bearing his own costs of Rs.9,552/- in the Suit and -Nil- in Appeal as No C.M. & F.C. is filed.

Given under my hand and the seal of the Court, this the 18th day of February, 2016

Chairman, Permanent Lok Adalat, Ongole, FAC-VIII A.D.J., Ongole.

TABLE OF COSTS

For Respondents/Defendants : For Appellant/Plaintiff :

1. Stamps on Appeal :Rs. - No C.M. & F.C. is filed

2. Stamps on Vakalat :Rs. 2-00

3. Advocate Fees :Rs. -

4. Type charges :Rs. - *Total:Rs. 2-00 * NB : Institutional costs allowed :

Chairman,P.L.A., FAC/V-A.D.J.,

1

IN THE COURT OF FAMILY-CUM-VIII-ADDITIONAL DISTRICT JUDGE :

ONGOLE.

Present: Sri B.B.Nagendra Rao, Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII-Additional District Judge, Ongole. Thursday, this the 18th day of February, 2016

APPEAL SUIT NOs.41 /2013 & 42/2013

APPEAL SUIT No.41/2013 :

Between:

Paruchuri Ram Kumar S/o.Venkateswarlu, Hindu, aged about 35 Yrs, Land-lord, R/o.Lakshmipuram Village, Nellore-2, Nellore District … APPELLANT/PLAINTIFF

And

1.Pothuri Badari Narayana adopted son of Rosaiah, aged 70 Yrs, Hindu, Agriculturist 2.Pothuri Sreenivasulu S/o.Badari Narayana, aged about 42 Yrs, Hindu, Agriculturist 3.Pothuri Venkateswara Rao S/o.Badari Narayana,

aged about 40 Yrs, Hindu, Employee ..RESPONDENTS/DEFENDANTS

(All are R/o.Woollapalem Village, Singarayakonda Mandal, Prakasam District)

On appeal against the Decree and Judgment, dated 10.09.2012 passed in

O.S.No.92/2003 on the file of Senior Civil Judge's Court, Kandukur, in

Between

Paruchuri Ram Kumar … PLAINTIFF

And

1.Pothuri Badari Narayana 2.Pothuri Sreenivasulu

3.Pothuri Venkateswara Rao ... RESPONDENTS

APPEAL SUIT NO.42/2013

Between:

1.Paruchuri Venkateswarlu S/o.Subrahmanyam Hindu, aged about 65 Yrs.,Business R/o.3/331, Lakshmipuram, Nellore 2.Paruchuri Subrahmanyam S/o.Venkateswarlu Hindu, aged about 38 Yrs.,Business R/o.3/331, Lakshmipuram, Nellore 3.Paruchuri Ram Kumar S/o.Venkateswarlu Hindu, aged about 35 Yrs.,

2

R/o.3/331, Lakshmipuram, Nellore 4.Ponduri Peda Rama Lingaiah S/o.Koti Reddy Hindu, aged about 65 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 5.Ponduri China Rama Lingaiah S/o.Koti Reddy Hindu, aged about 60 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 6.Ponduri Siva Reddy S/o.Koti Reddy Hindu, aged about 58 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 7.Ponduri Rama Krishna Reddy S/o.Koti Reddy Hindu, aged about 55 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 8.Ponduri Koti Reddy S/o.China Ramalingaiah Hindu, aged about 36 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District … APPELLANTS/DEFENDANTS

And

1.Pothuri Badari Narayana adopted son of Rosaiah, aged 70 Yrs, Hindu, Agriculturist 2.Pothuri Sreenivasulu S/o.Badari Narayana, aged about 42 Yrs, Hindu, Agriculturist 3.Pothuri Venkateswara Rao S/o.Badari Narayana,

aged about 40 Yrs, Hindu, Employee ..RESPONDENTS/PLAINTIFFS

(All are R/o.Woollapalem Village, Singarayakonda Mandal, Prakasam District)

On appeal against the Decree and Judgment, dated 10.09.2012 passed in

O.S.No.94/2002 on the file of Senior Civil Judge's Court, Kandukur, in

Between 1.Pothuri Badari Narayana 2.Pothuri Sreenivasulu 3.Pothuri Venkateswara Rao … PLAINTIFFS

And

1.Paruchuri Venkateswarlu 2.Paruchuri Subrahmanyam 3.Paruchuri Ram Kumar 4.Ponduri Peda Rama Lingaiah 5.Ponduri China Rama Lingaiah 6.Ponduri Siva Reddy 7.Ponduri Rama Krishna Reddy

8.Ponduri Koti Reddy... DEFENDANTS

3

These TWO Appeals coming on 04.02.2016 for final hearing before me in the presence of Sri K.S.Prasada Rao, Advocate for the Appellant and of Sri

K.Venkateswarlu, Advocate for respondents in A.S.No.41/2013 and Sri

K.S.Prasada Rao, Advocate for Appellants, Sri K.Raghava Rao, Advocate for

Respondents 1 and 2 and Respondent No.3 remained ex parte in A.S.42/2013, upon perusal of the Order of the lower Court, oral and documentary evidence and other material available on record and having stood over till this day for consideration, this Court delivered the following:-

// C O M M O N J U D G M E N T //

1.Both A.S.41/2013 and 42/2013 are arise out of common Judgment passed in O.S.92/2003 and O.S.94/2002 on the file of Senior Civil Judge, Kandukur, dated 10.09.2012.

2.O.S.94/2002 was filed for grant of permanent injunction restraining the defendants, their men from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule properties and for costs, whereas the 3rd defendant Paruchuri Ram Kumar in O.S.92/2003 filed this suit for partition against defendants 1 to 3, who are the plaintiffs in the above suit.

3.The plaintiff in O.S.92/2003 is the 3rd defendant in O.S.94/2002 whereas the defendants in O.S.92/2003 are the plaintiffs in O.S.94/2002.

4.The brief averments of the respondents/plaintiffs in O.S.94/2002, in the trial

Court, are as follows :-

One Pothuri Audemma after the death of her husband Rosaiah, adopted the 1st plaintiff, executed and registered the adoption deed on 07.08.1968 and himself along with his sons plaintiffs 2 and 3, inherited their properties viz., 1(a), 1(d), 2 and 3 of the plaint schedule also 1(b), 1(c), 4 and other properties, paying land revenue and in token of their possession, the revenue department issued pattadar passbook in favour of the 1st plaintiff. While so, the son of brother of Pothuri

Rosaiah and his sons defendants 2 and 3 without any manner of right, started rising objections to the process of cultivation by the plaintiffs and threaten that they

4

would damage the existing crops and hence they have constrained to file the above suit.

5.(a) Per contra, denying all the material allegations of the plaint, defendants 1 and 3 filed written statement contending that the suit for permanent injunction alone is not maintainable that though the plaint schedule properties are in the name of Rosaiah, he purchased them with the joint family money and enjoyed them only as manager of the joint family but not in his individual right. Rosaiah did not adopt the 1st plaintiff. But, his wife Audemma executed a deed of adoption in favour of the 1st plaintiff who obtained pattadar passbook managing the revenue people. In fact, Rosaiah and his brother Peraiah Setty continued the family business of their father Iyyanna. The said Rosaiah purchased part of Item Nos.1, 2 and 3 through a registered sale deed, dated 27.08.1925 and 10 years later, he purchased the remaining part of Item No.1 and item No.4 of the plaint schedule properties from out of the income derived from the lands covered under the above registered sale deed and also from the joint family income. Apart from the plaint schedule properties, both the brothers have other properties and are enjoying them. After the death of both the brothers, while the widow of Peraiah Setty by name Jalamma with his son Iyyanna Setty went to her Sister Kota Peramma at

Nellore, Audemma called her sister Kovamma along with her two sons by name

Raha Krishna and 1st plaintiff from Kotha peta to settle with her. After attaining majority Iyyanna Setty did business along with Paruchuri Subrahmanyam, who is the son-in-law of Peramma. While, Audemma had been in possession and enjoyment of the entire joint family properties on her behalf and also on behalf of the family of Peraiah Setty. When the said Audemma proposed to take her sister's son i.e., 1st plaintiff Badari Narayana, Iayyanna Setty advised to take the 1st defendant and accordingly a deed of adoption was written and executed by

Audemma. Even after adoption, the joint family properties were not partitioned between Audemma on one hand and Jalamma and Iyyanna Setty on the other hand and as they were enjoying the properties jointly, the names of Audemma and

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Iyyanna Setty were incorporated in the village accounts as joint owners. Initially the ryotwari passbook was also issued in the names of Audemma and Iyyanna setty, the plaint schedule properties are not the full and absolute properties of the plaintiffs.

(b)Later, Iyyanna Setty married one Lakshmi Suseela and got a daughter by name Kamakshamma and performed her marriage with 1st defendant Paruchuri

Venkateswarlu and they got three sons and a daughter. Iyyanna Setty after the death of his wife re-married one Vijaya Kumari but did not get any issues through her but acquired considerable properties on his own by doing business along with

Paruchuri Subrahmanyam at Nellore and since the said Subrahmanyam did not beget any issues, he adopted Paruchuri Venkateswarlu.

(c)While so, Iyyanna Setty executed his last will, dated 11.10.1981 in a sound and disposing state of mind at Nellore bequeathing various properties in favour of his second wife Vijaya Kumari and his daughter Kamakshamma, Defendants 2 and

3. The said Iyyanna Setty put the said will in a sealed cover in the office of Sub-

Registrar, Nellore, and after his death, the 1st defendant obtained it and registered on 23.08.1985 as per which 3rd defendant herein is absolute owner of ½ share of

Iyyanna Settyin in the joint family properties at Woollapalem. As this defendant was a minor by then, his father 1st defendant herein, maintained the plaint schedule properties and other properties belonging to Iyyanna Setty. The plaintiffs and defendants are businessmen originally and therefore they have leased out their lands to Defendants 4 to 8. While so, the 1st plaintiff, taking undue advantage of the absence of defendants 1 to 3 in the village, entertained an evil idea of grabbing all the plaint schedule properties and managed the revenue officials and got his name mutated in the village accounts without the knowledge and consent of defendants 1 to 3. Audemma also passed away in the year 1989. Therefore, by virtue of the will, the 3rd defendant has become a co-owner and co-sharer for the plaint schedule properties and he has been in possession and enjoyment of his ½ share, therefore,

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the 1st plaintiff can not maintain a suit for permanent injunction against co-owner.

Defendants 4 to 8 tried to purchase the share of 3rd defendant and therefore, they are necessary to be impleaded. The plaintiffs did not approach the Court with clean hands and therefore, they are not entitled for any injunction.

6.Whereas the brief averments of the plaintiff in O.S.92/2003 are as follows :

(a)that one Pothuri Iyyanna of Woollapalem village had two sons namely

Rosaiah and Peraiah Setty and after his death both the sons continued their family business and Rosaiah being elder of them, took the management of the joint family and purchased the plaint schedule items from out of income of the joint family properties. The joint family also has got a vacant site known as Pothuri Iyyanna

Setty and Audemma Choultry in Sy.No.19 of Woollapalem village in an extent of

Ac.0.25 cents apart from house properties, which are shown as items 8 to 10. And of them, elder brother was not blessed with any children while the younger brother blessed with a son by name Iyyanna Setty. After the death of both the brothers, wife of Peraiah setty i.e., Jalamma along with her minor son Iyyanna Setty went to her sister's house by name Kota Peramma at Nellore, so also wife of Rosiah, i.e.,

Audemma invited her sister Kovamma along with her two sons by name

Ramakrishna and Badari Narayana to live with her at Woollapalem and thereafter

Audemma adopted Badari Narayana, executed a registered adoption deed. After the death of Audemma, with the help of her sister and brother-in-law had been in possession and enjoyment of the joint family properties left by Rosaiah and

Peraiah Setty.

(b)While so, after attaining majority, Iyyanna Setty did business along with one

Paruchuri Venkateswarlu who is the son-in-law of Kota Peramma, who is none other than the sister of his mother. Iyyanna Setty also used to visit Woollapalem village frequently and used to look after the welfare and wellbeing of Audemma and so also looked after the joint family properties and they enjoyed the plaint schedule properties jointly. Even after the adoption of Badari Narayana by Audemma, there

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was no partition between the joint family members, but, however, as Audemma and

Iyyanna Setty are enjoying the properties jointly. The revenue authorities also issued ryotwari passbook in the name of Audemma and Iyyanna Setty.

Subsequently Iyyanna Setty married one Lakshmi Suseela and begot a daughter by name Kamakshamma and on the death of his first wife Suseela, again he married another lady by name Vijaya Kumari as his second wife, but no issues were borne to them. Iyyanna Setty performed his daughter's marriage with one

Paruchuri Venkateswarlu and the said Kamakshamma begot three sons and a daughter. Among them the plaintiff is the 2nd son of Kamakshamma. Iyyanna Setty acquired considerable properties of his own by doing business along with

Paruchuri Subrahmanyam. Since the said Subrahmanyam had no issues, he adopted Paruchuri Venkateswarlu, who is the son-in-law of Iyyanna Setty.

Thereafter, said Iyyanna Setty executed a will in a sound and disposing state of mind on 14.10.1981 at Nellore bequeathing most of his properties to his wife and his share in the plaint schedule properties to the plaintiff herein. On the death of

Iyyanna Setty the said will came into force. Since the said will was kept in a sealed cover in the office of Sub-Registrar, Nellore. Paruchuri Venkateswarlu, who is the father of the plaintiff filed petition and got opened the sealed cover and registered on 23.08.1985 as per which the entire ½ share of Iyyanna Setty in the plaint schedule joint family properties situated in Woollapalem village were bequeathed to the plaintiff alone. Since the plaintiff was a minor by then, his father Paruchuri

Venkateswarlu has managed the plaint schedule properties and other properties of

Iyyanna Setty. Thereafter, the father of the plaintiff and the 1st defendant together donated an extent of 1231 sq. Yards in Sy.No.19 to High School of Woollapalem village in the year 1992. While so, the 1st defendant who took up the management of the joint family properties being an elder person, around five years prior to the death of Audemma had entertained an evil idea of grabbing all the properties taking undue advantage of the absence of the plaintiff and his family members at

Woollapalem village and therefore, to deprive his right, he also managed the

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revenue department and got incorporated his name in the village and Panchayat accounts. When the plaintiff and his father thought of disposing their share in the plaint schedule properties to one P.Kotireddy and his sons, the 1st defendant filed a suit in O.S.94/2002 for grant of permanent injunction and obtained the ex parte order of injunction behind their back. The 1st defendant herein who is the 1st plaintiff in the said suit, approached the Court with unclean hands and therefore, he is not entitled for injunction. 1st defendant is not absolute owner of Items 1 to 4 of the plaint schedule and always maintained the same only as a co-sharer and co-owner and as the 1st defendant is not coming forward for amicable partition, he is constrained to file the suit for partition of the joint family properties.

(c)Per contra, the 3rd defendant filed written statement adopted by defendants 1 and 2 contending that the suit filed by the plaintiff is not maintainable under law, but the relationship set out in Para No.4 of the plaint is true, but it is false to contend that Pothuri Iyyanna was carried on any Kirana and other businesses along with his sons Rosaiah and Peraiah Setty. It is true that the said Iyyanna died intestate but he had no estate. Therefore, the question of devolving such estate upon his sons Rosaiah and Peraiah Setty does not arise. Therefore, the said

Rosaiah and Peraiah Setty also did not continue the alleged joint business and they did not live under one roof, as alleged. The joint family had no trade at all.

Rosaiah carried on the trade on his own and earned money and acquired properties. Rosaiah acquired items 1 to 7 of plaint schedule by virtue of two registered sale deeds, dated 01.11.1934 and 27.08.1925. As far as Item No.8 of the plaint schedule is concerned, originally it is the government site and the same was occupied by Rosaiah and constructed room with his own funds. So far as Item

No.9 is concerned, it was also purchased by him with his own funds from one

Tanguturi Mahalakshamma by virtue of a registered sale deed, dated 21.12.1932.

As far as Item No.10 is plaint schedule is concerned it was also purchased by

Rosaiah for a sum of Rs.5,010/- from Official Receiver, Nellore in Proceedings in

I.P.04/1975 through the registered sale deed, dated 22.08.2008. Therefore, it is

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false to contend that items 8 to 10 of the plaint schedule are the joint family properties. Actually Rosaiah brought up 1st defendant Badari Narayana as his own son and thereafter died intestate and after his death, his widow Audemma executed adoption deed and it was also duly registered and attested. Iyyanna Setty who is the son of Peraiah Setty was also one of the attestors for the said adoption deed. Thus, the 1st defendant became the adopted son of Rosaiah and Audemma and he became absolute owner in respect of the plaint schedule properties and the other properties after the death of Audemma. Defendants 2 and 3 are the sons of 1st defendant and thereby they constitute joint family. At the instigation of Ponduri

Koti Reddy and his family members, the plaintiff and his father and brother have started threatening the defendants herein and therefore, they were constrained to file the suit in O.S.94/2002 and also obtained an ex parte orders of injunction in

I.A.1714/2002 and the said ex parte orders of injunction have also been made absolute on contest on 26.08.2003. Therefore, it is not open to the plaintiff to contend that he is in joint possession with the defendants herein and payment of

Court Fees under Section 34 (2) of ACF & SV Act is also absurd. The very suit for partition without praying for declaration of plaintiff's right is not maintainable. The plaintiff has been claiming his property being a legatee under the will but none of these properties are mentioned in the said will. All the plaint schedule properties are situated in Binginapalli village but not in Woollapalem village. Therefore, even if the said will is true, it does not clothe the plaintiff with any right to maintain this suit, since the alleged will is not in respect of the plaint schedule properties. Therefore, the very contention of the plaintiff that Audemma and Iyyanna Setty were jointly enjoying the properties is absolutely false. The plaintiff is the resourceful person to get the village accounts tampered. The ryotwari passbook was issued in the name of Audemma and no passbooks were issued in the name of Iyyanna Setty. Actually

Iyyanna Setty and Audemma jointly purchased only one property under registered sale deed, dated 31.12.1967 from one T.Iyyanna Setty and others, i.e., an extent of

Ac.0.09 cents. While so, Rosaiah who is the husband of Audemma acquired rest of

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the properties of his own. The said property was already gifted to High School by

Venkateswarlu and the 1st defendant Badari Narayana and therefore, the plaintiff has nothing to do with the same. The very contention of the plaintiff that Rosaiah acquired plaint schedule items with joint family funds etc., is false. Jalamma has always been residing at Nellore subsequent to the death of her husband. Peraiah

Setty and Iyyanna Setty did the business along with Paruchuri Subrahmanyam and earned a lot. Therefore, there are no joint family properties at all between Rosaiah and Peraiah Setty, therefore, it is false to contend that Peraiah Setty had ½ share and the said ½ share has been devolved upon his widow Jalamma and Iyyanna

Setty, is false. Accordingly Iyyanna Setty went to Nellore and Carried on the business in partnership along with others and acquired huge properties and he is no way concerned with the properties acquired by the Rosaiah with his own funds and vice-versa. It is false to contend that Iyyanna Setty had been visiting

Woollapalem village frequently and so looking after the welfare and wellbeing of

Audemma. There were no joint family properties at all and therefore, the question of partitioning them between Audemma on one side and Jalamma and her Son

Iyyanna Setty on the other hand does not arise. It is true Iyyanna Setty acquired considerable properties on his own and Similarly Rosaiah acquired properties on his own and except the site which is jointly purchased at Woollapalem there are no other joint family properties in between Audemma and Iyyanna Setty. This defendant is not aware of execution of any will, dated 14.10.1981 by Iyyanna Setty and it is for the plaintiff to prove the said will before the Court. It is absolutely false to contend that Ponduri Koti Reddy and his sons were given lease of the properties. The alleged lease is false. There is no cause of action for the present suit and it may be dismissed.

7.The learned Senior Civil Judge, Kandukur, after conducting joint trial in both the cases and after hearing both counsels decreed O.S.94/2002 with costs granting permanent injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the plaintiff in respect of

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the plaint schedule properties, but dismissed the suit in O.S.92/2003 without costs.

8.(a)Aggrieved by the Judgment decreeing the suit in O.S.94/2002 the defendants therein preferred A.S.No.42/2013 with the following grounds :

(1) The Judgment and decree of the lower Court is contrary to law, weight of evidence and probabilities of the case; (2) The lower Court ought to have stated that the suit schedule property is joint family property; (3) the lower Court ought to have stated that there can not be an injunction against a co-owner; (4) the lower Court ought to have stated that the suit property is the joint property of Rosaiah and Peraiah; (5) the lower Court ought to have stated that Rosaiah purchased the suit schedule property as a manager of the joint family; (6) the lower Court ought to have believed the evidence of D.W.1 and ought to have stated that there is a joint family between Rosaiah and

Peraiah as per the evidence of D.W.1; (7) the lower Court ought to have believed the evidence of defendants and dismissed the suit

(b).Whereas the grounds of appeal in A.S.41/2013 in nutshell reads as under :- (1) The Judgment and decree of the lower Court is contrary to law, weight of evidence and probabilities of the case; (2) The lower Court lost site of the fact that both parties are Vysyas and their vocation is trade and the property belonging to trading family; (3) the lower Court ought to have stated that Exs.B2 and B3 properties are the joint family properties and nucleus has come from out of the business; (4) The lower Court lost site of the fact that the respondents did not pray that they are having any separate business than the joint family business; (5) the lower Court ought to have stated that it is not possible to show documentary evidence at the time of execution of Exs.B2 and

B3 which are ancient documents; (6) The lower Court ought to have draw presumption that there is joint family business to Rosaiah and Peraiah Setty;

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(7) The lower Court lost site of the fact that there is no partition between Rosaiah and Iyyannasetty; (8) The lower Court having stated Iyyanna, Rosaiah and Peraiah are joint family members and Rosaiah and Peraiah succeeded to the property of Iyyannasetty; (9) The lower Court failed to consider that Iyyannasetty the father of

Rosaiah and Peraiah have got house and they are having business; (10) The lower Court's observation that there is no proof of business is not correct; (11) The lower Court ought to have stated that Rosaiah purchased

Exs.B2 and B3 properties with the funds of joint family while Rosaiah and Peraiah are joint; (12) The lower Court ought to have noted that there is no partition between Rosaiah and Peraiah after the death of their father

Iyyannasetty; (13) The Lower Court's observation that there is no documentary evidence to show that there are properties to Iyyannasetty is not correct; (14) the Lower Court ought to have visualized the family affairs at that point of time i.e., 1925 and 1934 and ought to have stated that

Iyyannasetty, Rosaiah and Peraiah have doing joint business; (15) The lower Court ought to have considered the evidence of

D.W.1 and must have stated that the evidence of D.W.1 is an admission under the Evidence Act and no further proof is necessary to prove the case of plaintiff; (16) The lower Court ought to have stated that the evidence of D.W.1 is given voluntarily and consciously and there is no reason for the lower Court to assume a fact; (17)The lower Court ought to have stated that it is not necessary that the family to possess immovable property to purchase immovable property; (18) the Lower Court ought to have stated that the properties are being cultivated jointly; (19) The lower Court ought to have stated that as Iyyanna is the owner of the property, his name is entered in Adangals etc.,

9.Written arguments filed for appellants and 'no' written arguments filed for respondents, hence posted for Judgment on merits.

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10.Now, the point that arises for consideration is :-

“ Whether the appeals in A.S.41/2013 & A.S.42/2013 are to be

allowed by setting aside the Judgment of Senior Civil Judge,

Kandukur, passed in O.S.92/2003, and to decree the suit with costs

through out by setting aside the Decree and Judgment of Senior

Civil Judge, Kandukur in O.S.94/2002, dated 10.09.2012 by

dismissing the suit with costs through out as prayed for ? ”

11.Both A.S.41/2013 and 42/2013 are arise out of “common Judgment” in

O.S.94/2002 and O.S.92/2003 on the file of Senior Civil Judge, Kandukur, dated

10.09.2012.

12.The Judgment of the Learned Senior Civil Judge, Kandukur reads as follows:-

“ ...Under these circumstances the suit in O.S.92/2003 filed for

partition is not maintainable as the plaint schedule properties are

found to be the self-acquired properties of deceased Rosaiah.... ”

“ .....So also it is evident from the record that the defendants 1 to 3

in O.S.94/2002 tried to interfere with the peaceful possession and

enjoyment of the plaintiffs, taking the support of defendants 4 to

8 therein and therefore certainly the plaintiffs in O.S.94/2002 are

entitled for permanent injunction. Therefore, these issues are

decided in favour of the Defendants and against the Plaintiff.... ”

“ .....In the result, the suit in O.S.94/2002 is decreed, with costs by

way of permanent injunction restraining the defendants and their

men from interfering with the peaceful possession and enjoyment of

the Plaintiff in respect of the plaint schedule properties, whereas

the suit in O.S.92/2003 is dismissed. No costs..... ”

13.The schedule in A.S.No.41/2013 is as follows :-

(a)Prakasam District Registration – Singarayakonda Sub-Registration - lands situated at Binginapalli Village, Singarayakonda Revenue Mandal of

Prakasam District.

Item No.1 :Sy.No.Extent : Ac-CentsValue Rs: a382 1.5546,500 b383/1 0.207,000 c384/1 2.911,39,000 d384/2 1.4569,600 Total Ac. 6.11 cents

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Bounded by: -

(b)Item No.1:

East : Pulaka kaluva South: Land of Badari Narayana to some extent and the Government land some extent West : Land of Kareti Siva Reddy and others North: Land of Kunchala Venkateswarlu to some extent and land of Nukasani Venkaiah to some extent and Samunthala Subbaravamma and others to some extent

Total Market Value is Rs.2,62,780/-

(c)Item No.2 :

S.No.385/2 an extent of Ac.0.35 cents bounded by :

East : Land of Nukasani Venkaiah South: Land of Pakala Abbulu West : Land of Pakala Abbulu North: Panta Kaluva

Market Value is Rs.12,250/-

(d)Item No.3 :

S.No.379 an extent of Ac.0.57 cents bounded by :

East : Panta Kaluva South: Panta Kaluva West : Land of Chalamcherla Venkateswarlu North: Cheruvu

Market Value is Rs.19,950/-

(e)Item No.4 :

S.No.501 an extent of Ac.1.42 cents bounded by :

East : Land of Kareti Koti Reddy and others South: Land of Bathula Ramalingareddy to some extent and land of Kareti Sanka Reddy to some extent and others West : Land of Kaareti Seshi Reddy North: Panta Kaluva

Market Value is Rs.49,700/-

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(f) Item No.5 :

Wet land measuring an extent of Ac.0.61 cents comprised in Sy.No.114/1c. Market Value is Rs.21,000/-

(g) Item No.6 :

Wet land measuring an extent of Ac.0.08 cents comprised in Sy.No.114/1D Market Value is Rs.2,800/-

(h) Item No.7 :

Wet land measuring an extent of Ac.0.13 cents comprised in Sy.No.114/1E Market Value is Rs.4,550/-

(j) Item No.8 :

Room bearing Assessment No.170 of Woollapalem Village of

Singarayakonda Revenue Mandal of Prakasam District bounded by :

East : House of Pabbisetty Narayana South: Shop of Kothuri Vijaya Kumar West : Shop of Pothuri Subbaratnam North: Road

Within the above said four boundaries room with Mangalore tiles measuring an extent of 11x16 ½ ft. which makes a total extent of 20.16 sq.yards.

Market Value is Rs.8,350/-

(k) Item No.9 :

Room bearing Assessment No.508 and vacant site of

Woollapalem Village of Singarayakonda Revenue Mandal of

Prakasam District bounded by :

East : Road South: Shop of Thummapudi Jayamma West : Ch.Satyanarayana North: House of Kanumarlapudi Satyanarayana

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Within the above said four boundaries room with Mangalore tiles measuring an extent of 147.88 sq.yards (Room 41.55 sq.yards)

Market Value is Rs.20,512/-

(l)Item No.10 :

Madras terraced room bearing Assessment No.522 of

Woollapalem Village of Singarayakonda Revenue Mandal of

Prakasam District bounded by :

East : Vacant site of Cheethirala Satyanarayana South: Road West : House of Kanumarlapudi Subba Rao North: Compound wall of Boggavarapu Subbarathamma

Within the above said four boundaries a dilapidated Madras terraced room measuring an extent of 43.3 sq.yards in a total extent of vacant site of 522 sq.yards.

Market Value is Rs.49,014/- Total market value of items 1 to 10 is Rs.4,50,906/- Plaintiff's half share value is Rs.2,25,453/- ¾ of the plaintiff's share value is Rs.1,69,089-75 ps.,

(m) Whereas the schedule in A.S.42/2013 is as follows :

Prakasam District Registration – Singarayakonda Sub-

Registration - lands situated at Binginapalli Village,

Singarayakonda Revenue Mandal of Prakasam District.

Item No.1 :Sy.No.Extent : Ac-CentsValue Rs: a382 1.5546,500 b383/1 0.207,000 c384/1 2.911,39,000 d384/2 1.4569,600 Total Ac. 6.11 cents

Bounded by: -

East : Pulaka kaluva

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South: Land of Badari Narayana to some extent and the Government land some extent West : Land of Kareti Siva Reddy and others North: Land of Kunchala Venkateswarlu to some extent and land of Pakala Abbulu to some extent land of Nukasani Venkaiah to some extent and Samunthala Subbaravamma and others to some extent

Total Market Value is Rs.3,00,000/-

(n) Item No.2 :

S.No.385/2 an extent of Ac.0.35 cents bounded by :

East : Land of Nukasani Venkaiah South: Land of Pakala Abbulu West : Land of Pakala Abbulu North: Panta Kaluva

Market Value is Rs.17,500/-

(o)Item No.3 :

S.No.379 an extent of Ac.0.57 cents bounded by :

East : Panta Kaluva South: Panta Kaluva West : Land of Chalamcherla Venkateswarlu North: Cheruvu

Market Value is Rs.28,500/-

(p)Item No.4 :

S.No.501 an extent of Ac.1.42 cents bounded by :

East : Land of Kareti Koti Reddy and others South: Land of Bathula Ramalingareddy to some extent and land of Kareti Sanka Reddy to some extent and others West : Land of Kaareti Seshi Reddy North: Panta Kaluva

Market Value is Rs.71,000/-

14) Point :-

The suit in O.S.94/2002 filed for “injunction”; whereas O.S.92/2003 is filed for “partition”.

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15.The Learned Senior Civil Judge, Kandukur 'dismissed' the suit in

O.S.92/2003 filed for partition, accordingly decreed O.S.94/2002 granting injunction

in favour of plaintiffs/respondents.

16.The case of plaintiffs/appellants/P.W.1, P.W.3 is that they are enjoying plaint schedule properties along with respondents as joint family members and had been in possession and enjoyment of the joint family properties left by brothers Rosaiah and Peraiah Setty; Audemma has been in possession and enjoyment of the entire joint family properties on her behalf and on behalf of the family of Peraiah Setty, therefore they are entitled for partition and separate possession. The documents relied on by the plaintiffs/appellants/P.Ws.1 and 3 are Exs.A1 to A24, marked

before the learned Senior Civil Judge Court, Kandukur.

17.Upon careful scrutiny of the oral or documentary evidence before the Lower

Court and Appellate Court, is evidence of P.W.1/appellant/plaintiff in O.S.92/2003

Paruchuri Ram Kumar, is very much crucial.

18.The evidence of P.W.1 (in O.S.92/2003) during cross examination reads as follows :

“ .....It is a fact that items 1 to 7, 9 and 10 were purchased by

Rosaiah. It is a fact that Rosaiah died prior to the year of 1956. I

do not know whether there is any documentary evidence to show

that Ayyanna used to have properties by the date of his death.... ”

“ .....There is no documentary evidence to show that my father and

Badiri Narayana succeeded the property from their ancestors. I do

not know whether Audemma and Ayyannasetty had jointly purchased

the property donated to the High School on 31.11.1967. I do not

know as to how Rosaiah had acquired items 1 to 7, 9 and 10. It is a

fact that Rosaiah had no children.. ”

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“ ...It is a fact that Ayyannasetty is a partner in Parchuri

Subrahmanyam and Company and also in Ayyannasetty Company. It is

a fact that Ayyannasetty had house properties at Stonehouse Pet

and Santhapet at Nellore and he also had a taxi.. ”

“ ....It is a fact that except my oral evidence there is no other

documentary evidence filed by me to show that Rosaiah inherited

properties from his father. I have no documentary evidence to show

that Iyyanna carried on business and that after the death of

Iyyanna the said business was also inherited by Rosaiah.... ”

“ ....It is a fact that Iyyanna Setty is having huge properties at

Nellore. Ayyannasetty was expired in the year of 1995. Except the

will executed by Iyyanna Setty I did not file any other documents in

this case to show that I am in possession of the plaint schedule

properties. All the plaint schedule properties are situated at

Binginapalli Village. It is a fact that in the will it was mentioned that

the properties of Vullapalem was bequeathed to me. The particulars

of the said properties was not mentioned in the will Ex.A1.... ”

19.The above admission of P.W.1 clearly goes to show that the plaintiff/ appellant in O.S.92/2003 is nothing to do with the items 1 to 7, 9 and 10 of the plaint schedule in O.S.94/2002. It is also a fact that the plaintiff relied on Ex.A1, but the said Ex.A1 does not refers to any properties and the same is admitted by

P.W.1. It is also a fact that the appellants are residing in Nellore, whereas the properties are located at Binginapalli village. So, appellants/plaintiffs/P.Ws.1 and 3 are nothing to do with the plaint schedule properties at Binginapalli village. It is a fact that Rosaiah, the son of Pothuri Ayyanna has acquired properties which are self acquired properties and neither Peraiah Setty nor Jalamma nor Ayyannasetty are concerned to the plaint schedule properties and hence, the plaintiffs can not seek any partition over the plaint schedule properties in O.S.92/2003. Even the

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appellants/plaintiffs in O.S.92/2003 are 'not' in joint possession over the plaint schedule property in O.S.92/2003.

20.The learned Senior Civil Judge, Kandukur, rightly hold and concluded that items 1 to 7, 9 and 10 are the self acquired properties of deceased Rosaiah and therefore, the deceased Peraiah Setty does not have any half share as alleged, hence, the issue in O.S.92/2003 was decided in favour of defendants and against the plaintiffs.

21.The evidence of P.W.3 in O.S.92/2003/Parchuri Venkateswarlu, during cross examination reads as follows :

“ ....It is a fact that defendants 4 to 8 in O.S.94/2002 are my

supporters... ” “ ....Iyyanna Setty has got one female child.... ”

“ ......I did not file any document to prove that Iyyannasetty who is

the father of Rosaiah died possessing immovable property.... ”

“ .....Items 1 to 7 and item No.9 and Item No.10 were purchased by

one Rosaiah and the sale deeds are in his name.... ”

“ .....It is a fact that except revenue records filed on behalf of the

plaintiffs in this suit there is no other documentary evidence to

show that Ayyannasetty is having connection with the plaint schedule

property. The landed property is located at Binginapalli village. It is

a fact that in the will executed by Ayyannasetty it was not

mentioned that the properties are located at Binginapalli village and

that it was mentioned that the properties are located at Oollapalem.

It is a fact that in the will the survey number and the extents and

the boundaries of the properties were not mentioned..... ”

22.Apart from the evidence of P.Ws.1, 3, the evidence of P.W.5/S.Lakshmi

Rajyam supports the contention of the respondents/defendants/D.W.1.

21

23.Controversy over Adoption :

Though P.Ws.1 and 3, who are appellants/plaintiffs in O.S.92/2003 disputed the adoption, but admitted in entire pleadings and when they examined before the trail Court.

24.The evidence of P.W.1 during cross examination reads as follows :

“ .....It is a fact that Audemma had executed an adoption deed in

favour of Badiri Narayana. I have not seen the said document. It is a

fact that Ayyannasetty had also attested the adoption deed. The

above said Ayyannasetty is the son of Peraiahsetty.... ” “ ....It is a fact that D1 and his sons are living jointly.... ”

25.The evidence of P.W.2 Kommana Venkata Subbaiah during cross examination is as follows :

“ .....It is a fact that Badiri Narayana was adopted by Audemma.... ”

26.P.W.3 during cross examination has stated as follows :

“ ....It is a fact that Audemma adopted Badiri Narayana and

executed an adoption deed. It is a fact that in the adoption deed

Ayyanna had subscribed his signature..... ”

So, the evidence of P.Ws.1 to 3 clearly goes to show that D1/D.W.1/Pothuri

Badari Narayana is the adopted son of Audemma, the wife of Rosaiah, who are issue-less.

27.The lower Court upon due consideration answered Issue No.3 that the contents of Ex.P4 adoption deed is true and the 1st defendant Pothuri Badari

Narayana can be treated as an adopted son for the couple of Rosaiah and

Audemma, therefore, the issue was decided in favour of the defendants and against the plaintiff.

The evidence of P.W.2 also goes against the claim of the plaintiff/appellant in

O.S.92/2003 and the evidence of P.W.2 during cross examination reads as

22

follows :

“ .....Ayyannasetty stayed at Nellore. It is a fact that Badiri

Narayana was adopted by Audemma. It is a fact that all the

schedule properties are located in Binginapalli Village. Voollapalem is

the hamlet of Binginapalli. It is a fact that the 1 st defendant is

residing at Voollapalem. The suit schedule properties are being

cultivated by Badiri Narayana and one P.Venkateswarlu.

P.Venkateswarlu never paid land revenue to the suit schedule

property..... ”

28.The evidence of P.W.2 also goes to show and supports the contention of the defendants/respondents/D.W.1.

29.Upon due consideration of the facts, the learned Senior Civil Judge,

Kandukur, negatived the relief of the plaintiff in O.S.92/2003 holding that they are not entitled for partition of the plaint schedule properties in O.S.92/2003 which are exclusively belongs to Rosaiah, the husband of Audemma who adopted Pothuri

Badari Naraya/D.W.1.

30.The relief sought for by the plaintiffs in O.S.94/2002 is 'permanent injunction' over the plaint schedule properties mentioned therein. The plaintiffs in

O.S.92/2003 claimed 'partition' of the plaint schedule properties on the ground that

they are of joint family properties, but the same was not fit for consideration. At this juncture also, the evidence of P.Ws.1 to 3 during cross examination is very much crucial for consideration.

The evidence of P.W.1 in O.S.92/2003 reads as follows :

“ .....I did not file the land revenue receipts into Court... ”

“ .....Except the will executed by Iyyanna Setty I did not file any

other documents in this case to show that I am in possession of the

plaint schedule properties.... ”

23

31.The evidence of P.W.2 is that all the plaint schedule properties are being cultivated by Badiri Narayana which are located in Binginapalli, hamlet of

Oollapalem.

32.So also, P.W.3 admitted that he did not file any document to prove that

Iyyannasetty who is the father of Rosaiah, died possessing immovable property.

33.P.W.3 further admitted that he did not file any documentary evidence into

Court to show that the 1st defendant paid Maktha to the plaintiff, in his account books or in the account books of the plaintiffs, the income derived by the plaintiffs from the Makthas was not noted.

34.The evidence of P.W.5 also crucial at this juncture.

The evidence of P.W.5 during cross examination reads as follows :-

“ ....In Adangal for Fasli 1390 for S.No.383/1, 383/2 and 384/1 the

name of Ayyanna is written with different ink from the word

'Audemma'. It is true that where ever the name Audemma is there,

the name of Ayyanna is written by the side of it with different ink.

Even in Adangal for the Fasli 1389, where ever the name of

Audemma is there, the name of Ayyanna is written by the side of it

with different ink. Even in the Adangal for the Fasli 1383 to 1385,

1386 to 1389 the same things are mentioned. I can not say when the

name of Ayyanna is written in the above records. I can not say who

did it. I can not say whether the name of Ayyanna is subsequently

added in all the above records at the instance of plaintiff..... ”

35.The evidence of P.W.5 goes to show that where ever name of Audemma is there, the name of Ayyanna was written with different ink and the same is did by the appellant/plaintiff in O.S.92/2003 in order to get the revenue documents. In fact, the man that claims inheritance is Iyyannasetty, but not Iyyanna. So, there is clear tamper of revenue records by the appellant/plaintiff/P.W.1. From the

24

evidence of P.Ws.1 to 3, particularly P.W.5, it is clear that the defendants in

O.S.92/2003 who are plaintiffs in O.S.94/2002 are in possession and enjoyment of

the plaint schedule properties in O.S.94/2002 and accordingly they are entitled for permanent injunction. The lower Court categorically discussed Issues Nos.1 to 5 in O.S.92/2003 and Issues Nos.1 to 3 in O.S.94/2002. The defendants 1 to 3 in

O.S.94/2002 tried to interfere with the peaceful possession and enjoyment of the

plaintiffs taking the support of defendants 4 to 8 therein and therefore, Plaintiffs in

O.S.94/2002 and Defendants in 92/2003 are entitled for permanent injunction.

36.Basing on the above discussion and upon due consideration of the material available before the Court and considering the entire Judgment in O.S.94/2002 and

O.S.92/2003, dated 10.09.2012, this Court do 'not' find any irregularity or illegality

to interfere with the Judgment of the lower Court and the Judgment of the learned

Senior Civil Judge, Kandukur, does not warrants any interference and hence the

common Judgment in O.S.94/2002 and 92/2003, dated 10.09.2012 is entitled for confirmation.

37.In the result, the appeals are DISMISSED and the common Judgment passed by the Learned Senior Civil Judge, Kandukur, by decreeing the suit in

O.S.94/2002 and dismissing the suit O.S. 92/2003, dated 10.09.2012 is hereby

“Confirmed” with costs throughout.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in open Court, this the 18 th day of February, 2016.

Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII A.D.J.,

Ongole.

“ No” additional oral evidence is adduced and documents are marked on either side in this appeal.

Chairman,P.L.A., FAC/J.F.C.,

25

IN THE COURT OF FAMILY-CUM-VIII-ADDITIONAL DISTRICT JUDGE :

ONGOLE.

Present: Sri B.B.Nagendra Rao, Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII-Additional District Judge, Ongole. Thursday, this the 18th day of February, 2016

APPEAL SUIT NO. 42/2013

Between:

1.Paruchuri Venkateswarlu S/o.Subrahmanyam Hindu, aged about 65 Yrs.,Business R/o.3/331, Lakshmipuram, Nellore 2.Paruchuri Subrahmanyam S/o.Venkateswarlu Hindu, aged about 38 Yrs.,Business R/o.3/331, Lakshmipuram, Nellore 3.Paruchuri Ram Kumar S/o.Venkateswarlu Hindu, aged about 35 Yrs., R/o.3/331, Lakshmipuram, Nellore 4.Ponduri Peda Rama Lingaiah S/o.Koti Reddy Hindu, aged about 65 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 5.Ponduri China Rama Lingaiah S/o.Koti Reddy Hindu, aged about 60 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 6.Ponduri Siva Reddy S/o.Koti Reddy Hindu, aged about 58 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 7.Ponduri Rama Krishna Reddy S/o.Koti Reddy Hindu, aged about 55 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District 8.Ponduri Koti Reddy S/o.China Ramalingaiah Hindu, aged about 36 Yrs.,Agriculturist, R/o.Binginapalli Village, S.Konda Mandal Prakasam District … APPELLANTS/DEFENDANTS

And

1.Pothuri Badari Narayana adopted son of Rosaiah, aged 70 Yrs, Hindu, Agriculturist 2.Pothuri Sreenivasulu S/o.Badari Narayana, aged about 42 Yrs, Hindu, Agriculturist 3.Pothuri Venkateswara Rao S/o.Badari Narayana,

aged about 40 Yrs, Hindu, Employee ..RESPONDENTS/PLAINTIFFS

26

(All are R/o.Woollapalem Village, Singarayakonda Mandal, Prakasam District)

On appeal against the Decree and Judgment, dated 10.09.2012 passed in

O.S.No.94/2002 on the file of Senior Civil Judge's Court, Kandukur, in

Between 1.Pothuri Badari Narayana 2.Pothuri Sreenivasulu 3.Pothuri Venkateswara Rao … PLAINTIFFS

And

1.Paruchuri Venkateswarlu 2.Paruchuri Subrahmanyam 3.Paruchuri Ram Kumar 4.Ponduri Peda Rama Lingaiah 5.Ponduri China Rama Lingaiah 6.Ponduri Siva Reddy 7.Ponduri Rama Krishna Reddy

8.Ponduri Koti Reddy... DEFENDANTS

This Appeal is preferred by Defendants to set aside the Decree and

Judgment, dated 10.09.2012 passed against them in O.S.94/2002, filed by the plaintiffs for permanent injunction, was Decreed by the Leaned Senior Civil Judge,

Kandukur.

Appeal presented on : 19.01.2013Appeal filed on : 11.02.2013

Notional value of relief of permanent injunction, for the purpose of Court

Fees and Jurisdiction in the appeal is valued at Rs.1,05,000/- on which a Court

Fees of Rs.3,526/- is paid under section 26 (c) of APCF & SV Act, 1956.

This Appeal coming on 04.02.2016 for final hearing before me in the presence of Sri K.S.Prasada Rao, Advocate for Appellants, Sri K.Raghava Rao,

Advocate for Respondents 1 and 2 and Respondent No.3 remained ex parte, upon perusal of the Order of the lower Court, oral and documentary evidence and other material available on record and having stood over till this day for consideration, this Court Doth order and decree :

(1) that the appeal be and is hereby DISMISSED and the Judgment passed by the Learned Senior Civil Judge, Kandukur, in O.S. 94/2002,

dated 10.09.2012 is hereby “Confirmed”, and

(2) that the Appellants/Defendants do pay to the Respondents/Plaintiffs a sum of Rs.3,528/- in the suit and Rs.2/- in the Appeal bearing their own

27

costs of Rs.5,072/- in the Suit and – Nil - in Appeal as No C.M. & F.C. is filed.

Given under my hand and the seal of the Court, this the 18th day of February, 2016

Chairman, Permanent Lok Adalat, Ongole, FAC-VIII A.D.J., Ongole.

TABLE OF COSTS

For Respondents/Plaintiffs : For Appellants/Defendants :

1. Stamps on Appeal :Rs. - No C.M. & F.C. is filed

2. Stamps on Vakalat :Rs. 2-00

3. Advocate Fees :Rs. -

4. Type charges :Rs. - *Total:Rs. 2-00 * NB : Institutional costs allowed :

Chairman,P.L.A., FAC/V-A.D.J.,

28

IN THE COURT OF FAMILY-CUM-VIII-ADDITIONAL DISTRICT JUDGE :

ONGOLE.

Present: Sri B.B.Nagendra Rao, Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII-Additional District Judge, Ongole. Thursday, this the 18th day of February, 2016

APPEAL SUIT NO.41 /2013

Between:

Paruchuri Ram Kumar S/o.Venkateswarlu, Hindu, aged about 35 Yrs, Land-lord, R/o.Lakshmipuram Village, Nellore-2, Nellore District … APPELLANT/PLAINTIFF

And

1.Pothuri Badari Narayana adopted son of Rosaiah, aged 70 Yrs, Hindu, Agriculturist 2.Pothuri Sreenivasulu S/o.Badari Narayana, aged about 42 Yrs, Hindu, Agriculturist 3.Pothuri Venkateswara Rao S/o.Badari Narayana,

aged about 40 Yrs, Hindu, Employee ..RESPONDENTS/DEFENDANTS

(All are R/o.Woollapalem Village, Singarayakonda Mandal, Prakasam District)

On appeal against the Decree and Judgment, dated 10.09.2012 passed in

O.S.No.92/2003 on the file of Senior Civil Judge's Court, Kandukur, in

Between

Paruchuri Ram Kumar … PLAINTIFF

And

1.Pothuri Badari Narayana 2.Pothuri Sreenivasulu

3.Pothuri Venkateswara Rao ... RESPONDENTS

This Appeal is filed by the Plaintiff to set aside the Decree and Judgment passed on 10.09.2012 in O.S.92/2003 filed by him for partition, was dismissed by the Learned Senior Civil Judge, Kandukur.

Appeal presented on : 19.01.2013Appeal filed on : 11.02.2013

Though the Appeal is valued for the purpose of Court Fees and Jurisdiction at Rs.1,69,089-75 p.s., but as the suit was filed for partition of the suit schedule properties, a fixed Court Fees of Rs.200/- is paid under section 26 (c) of APCF &

SV Act, 1956.

29

This Appeal coming on 04.02.2016 for final hearing before me in the presence of Sri K.S.Prasada Rao, Advocate for the Appellant and of Sri K.

Venkateswarlu, Advocate for respondents, upon perusal of the Order of the lower

Court, oral and documentary evidence and other material available on record and having stood over till this day for consideration, this Court Doth order and decree :

(1) that the appeal be and is hereby DISMISSED and the Judgment passed by the Learned Senior Civil Judge, Kandukur, in O.S. 92/2003,

dated 10.09.2012 is hereby “Confirmed”, and

(2) that the Appellant/Plaintiff do pay to the Respondents/Defendants a sum of Rs. -Nil- in the suit and Rs.2/- in the Appeal bearing his own costs of Rs.9,552/- in the Suit and -Nil- in Appeal as No C.M. & F.C. is filed.

Given under my hand and the seal of the Court, this the 18th day of February, 2016

Chairman, Permanent Lok Adalat, Ongole, FAC-VIII A.D.J., Ongole.

TABLE OF COSTS

For Respondents/Defendants : For Appellant/Plaintiff :

1. Stamps on Appeal :Rs. - No C.M. & F.C. is filed

2. Stamps on Vakalat :Rs. 2-00

3. Advocate Fees :Rs. -

4. Type charges :Rs. - *Total:Rs. 2-00 * NB : Institutional costs allowed :

Chairman,P.L.A., FAC/V-A.D.J.,

1

IN THE COURT OF SESSIONS: PRAKASAM DIVISION: ONGOLE

Present: Sri B.B.Nagendra Rao, Chairman, Permanent Lok Adalat, Ongole, FAC-V Additional District & Sessions Judge, Ongole. Wednesday, this the 10th day of February, 2016.

SESSIONS CASE NO.135/2012

(Cr.No.221/2011 of Ongole I Town P.S.)

Name of the Police station : Ongole I Town P.S.

Name & Description of the accused:

1.Dronadula Hari Krishna S/o.Rama Krishna, aged 27 Yrs., Viswabrahmin by Caste, Private Electrician, R/o.Rajapanagal Road, 4th Cross Road, Ongole (A1) 2.Dronadula Rama Krishna S/o.Murthaiah, aged 54 Yrs., Viswabrahmin by Caste, RTC Driver, Ongole RTC Depot, R/o.Rajapanagal Road, 4th Cross Road, Ongole (A2) 3.Dronadula Bharathi W/o.Rama Krishna, age 48 Yrs., Viswabrahmin by Caste, R/o.Rajapanagal Road, 4th Cross Road, Ongole (A3) Deceased : Dronadula Sunitha @ Krishna Veni W/o.Hari Krishna,

age 22 Yrs, Viswabrahmin by Caste, R/o.Rajapanagal Road,

4 th Cross Road, Ongole.

Charges:- :U/Sec.498-A,304-B IPC, Sec.3 & 4 of DP Act.

Plea of the accused :Not guilty

Finding of the Court:Found Guilty U/Sec.304-B Indian Penal Code

In the result, this Court found A1 to A3 as “guilty” for the offence punishable under section 304-B Indian Penal Code and convicted them for the same under section 235 (2) Cr.P.C.; Sentenced to suffer “rigorous imprisonment” for a period of 10 years each (Ten years) and also pay fine of Rs.10,000/- each (Rupees Ten Thousand only), in default of payment of fine, simple imprisonment for a period of 4 months each (Four Months). If the total fine amount of Rs.30,000/- is paid, an amount of Rs.20,000/- is ordered to be paid to the father of the victim by name P.W.1 Gunturi Brahmaiah S/o.Peddaiah, age 55 years, Viswabrahmin, Viswanadhapuram, Podili, under section 357 (1) Cr.P.C., Set off allowed under section 428 Cr.P.C., M.O.1 Chunni is ordered to be destroyed after appeal time is over, as per the orders of appeal. A1 to A3 are not found guilty for the charges under section 498-A of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act and accordingly acquitted them under section 235 (1) Cr.P.C.,

This case coming on 05.02.2016 for final hearing before me in the presence of the learned Addl. Public Prosecutor for the complainant/state and of Sri B. Hanuma Reddy, Advocate for A1 to A3, upon hearing the counsels on record, upon perusing the material and documents available on record and having stood over till this day for consideration, this court delivered the following:

J U D G M E N T

1.The accused Nos.1 to 3 were charged for the offences punishable under

Sections U/Sec.498-A,304-B IPC, Sec.3 & 4 of DP Act.

2

2.The Sub Divisional Police Officer, Ongole Sub Division, filed charge sheet against A1 to A3 with the following brief accusation :

that marriage of the deceased Sunitha with A1 was performed on 29.08.2010 with a cash dowry of Rs.3 lakhs and 10 sovereigns of gold and their marriage was consummated. One month thereafter A1 to A3 started harassing her for additional dowry which the deceased informed her parents and also about the illicit contacts of A1. L.W.1 Gunturi Brahmaiah (P.W.1), and L.W.2 Gunturi

Veera Narayanamma along with L.W.11 Vangara Anantha Veenaiah (P.W.7) went and requested the accused not to give any trouble to the deceased until P.W.1 settle the properties among his children, but they paid a deaf ear. About two months prior to the date of incident, when P.W.1 meet the deceased at Datta Sai

Hospital in Ongole, she informed about the torture meted out to her in the matrimonial home and further told him that the accused are not inclined to send her to her parental home unless their demand for additional dowry is meet and as the circumstances became worsen, on 23.08.2011 at about 8.00 a.m. the deceased hanged herself to a beam in the house and lost her breathe. A1 who noticed it, untied the chunny and took her to Pushpa Clinic, whereat L.W.12

Vinjamuru Veeranjaneyulu (P.W.8) on examination, declared the deceased as dead. On coming to know about it, P.W.1 and others went and saw the body of the deceased with injuries on her neck. Then P.W.1 went and gave report to police at 15.00 hours, which L.W.23 Bakthavatsala Reddy, Sub Inspector of

Ongole I Town P.S., (P.W.16) registered as a this case under section 304-B read with 34 of IPC., later, L.W.24 Smt.R.Jaya Lakshmi, Assistant Superintendent of

Police, Ongole Sub Division (P.W.17), took up investigation, observed the scene in the presence of L.W.16 Palutla Rama Subrahmanya Sarma (P.W.12), L.W.17

Kandukuri Rajasekhar, prepared report attested by mediators, seized chunny, drew rough sketch. On the requisition, L.W.19 Smt.M.Sridevi, Tahasildar-cum-

Mandal Executive Magistrate, Ongole Mandal (P.W.13) held inquest over the body of the deceased in the presence of P.W.12, L.W.9 Gunturi Rama

Lakshmamma and L.W.18 Nara Srinivasa Reddy and prepared proceedings.

During inquest P.W.13 examined and recorded the statements of P.W.1, L.W.2 3 and L.W.3 Vinukonda Sujatha (P.W.2). Later, the body was sent for postmortem examination. On that, a team of doctors consisting of L.W.21 Dr.G.Bhagiradhi

Devi, Civil Assistant Surgeon, RIMS Hospital, Ongole, and L.W.22 Dr.G.B.Raja

Kumar, Professor & Head of Department of Forensic Medicine, RIMS Hospital,

Ongole (P.W.14) conducted autopsy on the body and issued PM certificate opining that the deceased died due to Asphyxia, as a result of pressure over the neck. During investigation on 30.08.2011 at about 11.30 p.m. P.W.17 arrested

A1 and also arrested A3 and got them remanded, while A2 is on anticipatory bail.

Hence, A1 to A3 are liable for punishment under sections U/Sec.498-A,304-B

IPC, Sec.3 & 4 of DP Act.

3.On behalf of prosecution, P.Ws.1 to 18 were examined, Exs.P1 to P11 and M.O.1 Blue colour chunny were marked.

4.After closure of prosecution evidence, A1 to A3 were examined under section 313 Cr.P.C., with regard to the incriminating evidence. The accused denied the evidence and reported 'no' defence.

5.Heard both sides.

6.Now the point for determination is :

“Whether the prosecution proved the guilt of A1 to A3 for the

offences charged under sections 304-B, 498-A of IPC and also

under section 3 and 4 of D.P. Act 1961 beyond all reasonable

doubt ?” 7.(a)Section 304-B of IPC “DOWRY DEATH” reads as follows :

“(1) Where the death of a woman is caused by any burns or bodiliy injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life 4

(b) Section 498-A of IPC “Husband or relative of husband of a woman subjecting her to cruelty” reads as follows :

Whoever, being the husband or the relative of the husband of a 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.

(c) Section 3 of Dowry Prohibition Act “Penalty for giving or taking dowry :-” reads as follows : [1] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more] Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.

(d) Section 4 of Dowry Prohibition Act “Penalty for demanding dowry : -” reads as follows : If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees ; Provided that the Court may, for adequate and special reasons to be mentioned in the Judgment, impose a sentence of imprisonment for a term of less than six months.

8)The learned Additional Public Prosecutor for prosecution argued that

P.W.1 is the father of victim/deceased, P.W.2 is the sister of deceased/victim,

P.W.3 Vinukonda Madhavacahri is brother-in-law of deceased, P.W.5 Gunturi

Sreenivasulu and P.W.9 Nuthalapati Narayanaswamy are the circumstantial witnesses, to establish the case of the prosecution. P.Ws.11 to 14–Kankanala

Venkata Rao, P.Rama Subrahmanya Sarma (Village Revenue Officer), M.Sridevi (Tahasildar) , Dr.G.B.Raj Kumar are the witnesses to speak about the shifting of the dead body to the hospital declaring as she dead so also the cause of death of the deceased; P.W.8 Vinjamuru Veeranjaneyulu, P.W.10 Gudipati Peddabbai and

P.W.15 K.Narasimha Rao are the circumstantial witnesses to support the case of the prosecution; so also P.Ws.16 to 18 P.Bhakthavatsala Reddy, R.Jaya Lakshmi,

M.Rajanikanth Reddy are the investigating officers who brought the case to prove the guilt of the accused and hence, it is a fit case, without considering of any lenient view, and to convict the accused with major punishment.

5

9)The learned counsel appearing for the accused vehemently argued that no evidence for payment of dowry, no evidence that the accused harassed the deceased, much less cruelty and harassment; the case of the prosecution does not attracts any one of the ingredients charged under sections 498-A; 304-B of

IPC., and also under sections 3 and 4 of Dowry Prohibition Act; Ex.P1 complaint was prepared by a police constable who happens to be a friend of P.W.1; one

Venkata Reddy who happens to be a close friend of victim is responsible for the death of the deceased; the circumstantial witnesses has not supported the case of the prosecution; the Law laid down is that an innocent person can not be convicted; there is no nexus between the death of the deceased to the accused; no actual accusation made out against the accused; there are well-settled rulings of the Apex Court to favour the case of the accused and to extend benefit of doubt and accordingly acquit the accused.

10.Point :

Relationship between the deceased and A1 to A3 is 'not' in dispute. A1 is husband of deceased; A2 to A3 are the in-laws of the deceased. There is no dispute regarding the identity of A1 to A3. So also well-settled law and fact is that the death of the deceased occurred within Seven (7) years of marriage.

11.The crucial point is whether A1 to A3 are responsible for the death of the deceased or it is the outcome of dowry death, is to be considered, to decide and to pass Judgment at this juncture.

12.Denying to send the victim to her father's house and also denying to see her father when her fathr has admitted in hospital, amounts to harassment, to attract ingredients of Section 304-B IPC. In a case like sections 304-B, no Court and no law expects any witness or to be an eyewitness. What all required is a 'safe presumption' to establish whether there is any acts that attracts the ingredients under section 304-B IPC. The law is very clear that a safe presumption can be drawn when there is alleged offence under section 304-B

IPC. for the reason that no one is expected to be an eyewitness for the same.

6

13.P.W.1 is the father; P.W.2 is the sister and P.W.3 is sister-in-law of the deceased Sunitha. P.W.5 is the witness for payment of amounts to the accused.

P.W.9 is the person who provided amount to P.W.1, to be given to the accused.

14.The evidence of P.W.1 during cross examination reads as follows :

“....The deceased died one year back. One year prior to her death, her marriage was performed with A1. At the time of marriage an amount of Rs.3,00,000/- lakhs was given to A1 to A3. Gold ornaments were also given. Marriage was performed at Singarayakonda. After the marriage A1 and the deceased lived happily for one month at Ongole in Rajapanagal Road. A2 and A3 also lived along with them. A1 was having illicit intimacy with some other lady. I am having house at Podili. A1 used to force the deceased to sell the house at Podili and give the amount to him. The deceased informed the same on phone. Myself and L.W.2 went to the house of A1 to A3. I told them that after my death and the death of my wife automatically the property will go to my daughters, but th accused did not hear our words. Again I went to accused along with Anantha Veenaiah (L.W.11) who is retired M.P.D.O., After we asked the accused they kept quiet for some time. After 10 days the deceased telephoned me stating that again the accused are harassing her.

Again I sent L.W.11 Anantha Veenaiah to the accused, but they did not hear the words of L.W.1. The accused did not send the deceased to our house even in the month of Ashadhamasam. Because of paralysis I was admitted in the hospital at Ongole, but the accused did not send the deceased to see me.

Later after two months A1 telephoned to L.W.10 -G.Raghuram stating that the deceased committed suicide by hanging...”

Ex.P1 is the complaint lodged by P.W.1 before the police against A1 to

A3. It is the specific evidence of P.W.1 that because of the harassment of A1 to

A3, the deceased committed suicide by hanging.

15.The evidence of P.W.2 during chief examination reads as follows ; “....The deceased died 1 ½ year back. Her marriage was performed one year prior to her death - - ” ”...10 days prior to the marriage, an amount of Rs.3,00,000/- was given to the accused, on the date of marriage gold ornaments were given. Marriage was performed at Singarayakonda. After the marriage the deceased joined with A1 at the house of A2 and A3 at Ongole. A1 and the 7 deceased lived happily for one month. Thereafter A1 to A3 started harassing the deceased. The deceased told me the same on phone. P.W.1 went to the house of the accused along with retired M.P.D.O. (L.W.11). L.W.11 asked the accused, but the accused did not hear the words of L.W.11. P.W.1 told me the same. My husband Madhava Chari (L.W.4) also went to the house of accused and told the accused not to harass....” “...A1 telephoned to L.W.10 (Raghuram) stating that the deceased committed suicide by hanging. L.W.8 informed the same to me...” “....A1 to A3 killed the deceased and created that deceased herself committed suicide by hanging...”

16.The evidence of P.W.3 during chief examination reads as follows :

“...The deceased died about 1 ½ year back. Her marriage was performed one year prior to her death. L.W.13 Narayanaswamy mediated the marriage of the deceased. An amount of Rs.3,00,000/- and gold ornaments were given to the accused at the time of the marriage. The marriage was performed at Singarayakonda. After the marriage the deceased joined with A1 at Ongole. A2 and A3 also used to reside with A1 and the deceased. A1 and deceased lived happily for about one month. Thereafter A1 to A3 started harassing the deceased. P.W.1 is having house at Podili. A1 used to pressure the deceased to sell the house and to give the amounts to him. I told A1 that after the death of her parents automatically their daughters will get the property. P.W.2 told the same to me. M.P.D.O., went to the house of the accused to settle the dispute, but A1 to A3 did not hear the words of M.P.D.O. L.W.10 Raghuram telephoned me that the deceased died.” - -

17.The crucial aspects for consideration is that A1 to A3 lived together.

Deceased Sunitha joined with A1 to A3 after marriage and a specific evidence to attract the ingredients under section 304-B is that the accused not only provided with cash, gold ornaments, but pressurized the deceased Sunitha to sell the house belongs to P.W.1 at Podili, discarded the advice of L.W.11 Anantha

Veenaiah (P.W.7)

18.The mediators for the marriage were examined as P.Ws.5 and 9. The evidence of P.W.5 clearly goes to show that P.W.1 gave an amount of

Rs.3,00,000/- and gold ornaments to the accused at the time of marriage, P.W.1 told him that A1 to A3 are harassing the deceased, P.W.1 also told him that he 8 went to the house of the accused along with L.W.11 Anantha Veenaiah, but the accused did not hear their words. P.W.5 specifically stated that A1 to A3 might have killed the deceased. So also P.W.9 corroborated in respect of payment of money by P.W.1 to the accused in his presence and he acted as mediator to the marriage between A1 and the deceased.

19.By examining P.Ws.1 to 3, P.Ws.5 and 9, a crucial point that iis elicited is that the death of deceased Sunitha took place within seven (7) years after the marriage and the death is not in normal circumstances, but she was subjected to cruelty for the sale consideration of the house belongs to P.W.1 at Poidli. P.Ws.1 to 3, 5 and 9 cross examined at length, but the Court do not find any discrepancies to disbelieve and to discard their evidence.

20.The next witnesses for consideration are P.Ws.11 to 14. The evidence of

P.W.11 Kankanala Venkata Rao goes to show that he has taken the video.

Ex.P5 is the photos (four in number) along with C.D., P.W.11 is not subjected for cross examination for accused and reported “nil”.

21.The evidence of P.W.12 goes to show that on 23.08.2011 at about 3.00 p.m. the police prepared observation report at the scene of offence in his presence and also in the presence of L.W.17 Rajaskhar. Chunni was seized in his presence, he signed on observation report which is marked as Ex.P6 and

M.O.1 is the Chunni. It is also the further evidence of P.W.12 that the Tahasildar conducted inquest over the dead body of the deceased in his presence on the same date at about 4.00 p.m, L.W.18 Srinivasareddy was also present, he signed on the inquest panchanama which is Ex.P7 and he came to know that due to the harassment of A1 to A3, the deceased committed suicide by hanging.

22.The evidence of P.W.13 goes to show that on 23.08.2011 he conducted inquest over the dead body of the deceased in the presence of L.W.18

Srinivasareddy and P.W.12 and L.W.9 Ramalakshmamma, and drafted inquest proceedings which is Exs.P7, he also recorded the statements of P.W.1, P.W.2 and L.W.2 and forwarded the dead body to team of doctors.

9

23.The Evidence of P.W.14 goes to show that on 24.08.2011 on a requisition he conducted postmortem examination over the dead body of the deceased

Sunitha and issued Ex.P8 postmortem certificate. The opinion of P.W.14 /Dr.G.B.Raja Kumar is that the “cause of death, to the best of his knowledge and belief was due to Asphyxia as a result of pressure over the Neck. ”

24.The next aspect is the evidence of circumstantial witnesses i.e., P.W.8,

P.W.10 and P.W.15. The evidence of P.W.8 goes to show that A1 brought the deceased to his hospital one year bac, he examined the deceased and declared as dead.

25.The evidence of P.W.10 is that he knows A1 to A3, he gave his house for rent to A1 to A3 for three years from 2009 to 201, he came to know that the deceased died in his house. The evidence of P.W.10 clearly goes to show that A1 to A3 lived together in his house on rent.

26.The evidence of P.W.15 is that after conducting inquest, he took the dead body to the hospital and after completion of postmortem examination he handed over the dead body to their relatives.

27.There are 'no' suggestions to disbelieve the evidences of P.Ws.8 and 10 to 15.

The witnesses who did not support the case of prosecution and turned hostile are P.Ws.4, 6 and 7. Though P.W.7 turned hostile, there is evidence to favour the case of the prosecution that the deceased died one year after her marriage, he gave an amount of Rs.50,000/- to P.W.1 at the time of marriage of deceased, he came to know that the marriage was performed at

Singarayakonda, he was taken to the house of accused by P.W.1.

28.The next witnesses for consideration are P.Ws.16 and 17 who are the investigation officers in this case. The evidence of P.W.16 goes to show that on the report of P.W.1, he registered a case and issued FIR under Ex.P9 and sent requisition to P.W.13 to conduct inquest over the dead body of the deceased. The evidence of investigation officer P.W.17 goes to show that she took up 10 investigation, visited the scene of offence observed the same on 23.08.2011 drawn rough sketch under Ex.P6; seized M.O.1 in the presence of mediators and photographed the offence under Ex.P5, thereafter, recorded the statements of

P.Ws 1 to 3 and L.W.2 G.Veeranarayanamma, P.W.5, P.W.4 Devarapalli

Srinivasarao, L.W.9 Gunturi Ramalakshmamma, L.W.10 Gunturi Raghuram,

P.W.11 and drawn rough sketches under Exs.P10 and P11, examined P.Ws.7 and 8 on 24.08.2011.

29.The evidence of P.W.17 further goes to show that on 30.08.2011 at 11.30 p.m. she arrested A1 Dronadula Harikrishna near main Gate, RTC Bus-Stand,

Ongole, after duly explaining the grounds of arrest under section 50 Cr.P.C., and was sent to Judicial remand, later her successor M.Rajanikanth Reddy, D.S.P.,

Ongole, conducted further investigation and filed charge sheet. The witnesses

P.Ws.16 and 17 cross examined at length disputing all the material aspects during the course of investigation, but upon due consideration, this Court do 'not' find any ambiguity or irregularity on the part of P.Ws.16, 17 in conducting the investigation and to file charge sheet against A1 to A3. By examining P.Ws.1 to 3, P.Ws.5 and 9, the prosecution rightly established the necessary ingredients to attract section 304-B IPC which resulted the cause of death of the deceased

Sunitha within one year of her the marriage and a safe presumption can be drawn that the same is 'dowry death'. By examining P.Ws.11 to 13 coupled with

Exs.P5 to P7, M.O.1, the prosecution rightly established the scene of offence, so also photographs, inquest over the dead body of the deceased. By examining

P.W.14 coupled with Ex.P8, the prosecution established the cause of death of the deceased. By examining P.W.8, P.W.10, P.W.15, the prosecution rightly established the circumstantial aspects which took place soon after the death of the deceased Sunitha. Hence, the Court is of considered opinion that prosecution rightly brought the guilt of the accused to attract the ingredients of Section 304-B IPC.,

30.The learned counsel for the accused referred a decision reported in (1). 2008 (1) ALD (Crl.) 349 (AP) between Dheshetti Rajesham and another V.

State of Andhra Pradesh wherein his lord ship held as follows :

11 “Penal Code 1860 – Sections 498-A and 304-B – Dowry death – Conviction of husband of deceased/A1 and his mother/A2 – Appeal – Held, prosecution mainly relied on evidence of parents of deceased/PWs1 and 2, her cousin/PW3 and neighbours/ PWs.4 ad 5, who were declared hostile – None of witnesses stated that they had personal knowledge about harassment/beatings caused by A1- No role attributed to A2 except general statement – Statements said to have been made by deceased to PWs.1 to 3 were long prior to death of deceased and that is not information about circumstances leading to her death – Such statements do not fall within purview of Section 32 (1) of Evidence Act – No reliance can be placed on them – Testimony of PWs 1 to 3, only hearsay evidence – Accused entitled to benefit of doubt – Appeal allowed – Impugned Judgment set aside – [Evidence Act 1872, Section 32 (1); Dowry Prohibition Act 1961, Section 4]”

The learned counsel for accused also referred a decision reported in (2) 2003 (2) ALD (Crl.) 344 (AP) between G.M.Ravi @ G.Purushotham V.

State of Andhra Pradesh wherein their Lordships held as :

Penal Code, 1860 – Sections 498-A – Evidence Act, 1872 – Section 32 – Death of deceased, wife of accused in unnatural circumstances due to burn injuries – Accused alleged to have subjected deceased to cruelty – Witnesses had no personal knowledge of harassment but only stated what according to them was told by deceased to them with respect to harassment meted out to her by her husband – Statements do not come within purview of Section 32 of Evidence Act – Conviction cannot sustain and liable to be set aside – Appeal allowed.

The learned counsel for accused also referred a decision reported in (3) 2011 (1) ALD (Crl.) 297 (SC) between Preeti Gupta and another V. State of Jharkhand and another wherein his Lordships held as :

“Penal Code 1860 – Section 498-A – Harassment and demand of dowry – Complaint against husband and appellants-relatives of husband/sister- in-law and unmarried brother-in-law of complainant, no specific allegation against appellants, nor any of witnesses alleged any role of them, refusal by High Court to quash complaint as against appellants, not proper – More so, when appellants residing at different place and never visited place of incident – Their implication in complaint is meant to harass and humiliate them – It would be unfair to compel them to undergo rigmarole of a criminal trial – Complaint as against appellants, quashed in the interest of justice – Impugned judgment of High Court set aside – Appeal allowed – Criminal Procedure Code 1973, Section 482.’” 12

The learned counsel for accused also referred a decision reported in (4) 2013 (2) ALD (Crl.) 390 (AP) between Cheeli Asirvadam and others V.

State of Andhra Pradesh and another wherein his Lordships held as :

“Penal Code 1860 – Section 498-A – Offence under – Prosecution for-, against parents-in-law and sister-in-law of complainant – Not maintainable, when except bald allegations, no specific instances of any harassment or overt acts alleged against any of them – Specific overt acts directed mainly against husband/A1 only – No prima facie case made out against parents-in-law and sister-in-law/petitioners – Hence, continuation of proceedings against petitioners would be nothing but abuse of legal and judicial process – Accordingly, criminal petition allowed and proceedings against petitioner/A2 to A4 quashed – Trial Court to proceed with case against A1 and dispose of same in accordance with law – [Criminal Procedure Code 1973, Section 482]”

The learned counsel for accused also referred a decision reported in (5) ( 2006) 1 Supreme Court Cases (Cri) 417 between Harjit Singh V. State of

Punjab wherein his Lordships held as :

“Penal Code 1860 – S.304-B – Dowry death – Soon before the death, deceased was subjected to cruelty or harassment by her husband for or in connection with demand of dowry – Once this is established, a legal fiction is created under S.304-B whereby such death would be called dowry death – On facts held, ingredients of S.304-B IPC r/w S.113-B, Evidence Act not satisfied – Evidence Act, 1872 – S.113-B.”

The learned counsel for accused also referred a decision reported in (6). ( 2011) 1 Supreme Court Cases (Cri) 989 (2009) 17 Supreme Court Cases 243 between Suresh Kumar Singh V State of Uttar Pradesh wherein their lordships held as :

“Penal Code, 1860 – S.304-B – Applicability – Held, imperative for prosecution to prove cruelty or harassment meted out to deceased “soon

before her death” and marriage within period of seven years preceding

her death.”

The learned counsel for accused also referred a decision reported in (7) 2013 AILD 65 (MP) between Ravi Gontia V. State of M.P. wherein his

Lordships held as :

13 “Penal Code 1860 – Section 302 – Murder – Conviction and sentence – Legality of – Appreciation of evidence – Medical evidence – Cause of death of deceased was septicemic shock due to old burns – Deceased died of burn injuries established – Merely because deceased did not live with the accused for a long time, it cannot be held that accused set her on fire – Incident had occurred on 28.12.2000 – Seizure memo of articles from the spot was drawn on 3.1.2001 after the death of deceased – Scene of occurrence might have been changed by the time the seizure memo was drawn – Deceased suffered burn injuries – Accused himself carried her to hospital for treatment and remained present there throughout until she expired, militates against the idea of his culpability – Inconsistency among the evidences of witnesses speaking about the oral dying declaration and the evidence of dying declaration recorded by

Magistrate about the cause and the circumstances under which the

incident occurred – Creates suspicion about the truthfulness of the dying declaration – Accused caused burn injuries to deceased appears to be doubtful – Prosecution not successful in establishing the charge under section 302 IPC – Conviction and sentence set aside – Appeal allowed.”

The next citation relied by the learned counsel for accused is (8) Shaik China Buda V. State of A.P., reported in 2001 (2) ALD (Crl.) 294 (AP) wherein his lordships held as :

“Penal Code, 1860 – Section 498-A – All the six accused acquitted for the offence under section 304-B and also all accused except the husband of the deceased acquitted under section 498-A – Only the husband was convicted under Section 498-A basing on the evidence of interested witnesses whose evidence is found inconsistent – Further, the report was given to the police after consulting an advocate – No specific allegation made against the appellant-husband regard harassment of the deceased who committed suicide – In the circumstances, the appellant – husband is entitled to benefit of doubt and conviction is therefore liable to be set aside.”

The next citation relied by the learned counsel for accused is (9) Rajesh Gutta V. State of Andhra Pradesh and another reported in 2011 (1) ALD (Crl.) 885 (AP) wherein his lordships held as :

“Criminal Procedure Code 1973 – Section 157 – Investigation – Procedure for, scope – Merely recording statement as stated by witnesses cannot be called as investigation- Investigation includes examination of witnesses, confronting witnesses on basis of materials 14 collected by Investigating Officer and also the version of person who is aggrieved because of complaint.”

The next citation relied by the learned counsel for accused is (10) Mohd, Dowlath and another V. State of A.P., reported in 2004 (1) ALD (Crl.) 822 (AP) wherein his lordships held as :

“Criminal Procedure Code, 1973 – Section 161 – Statements recorded from the witnesses at the time of inquest – Said statements neither produced in the Court nor their copies furnished to the accused – Adverse inference can be drawn against the prosecution.”

31.Upon due consideration of citations relied on and referred to by the learned counsel for the accused, this Court most humbly submits that the referred citations are differs from facts on hand and no way helpful to the defence put forth by the learned counsel for the accused. In the instant case there is clear cut evidence, more particularly a direct evidence that the accused put forth a demand to sell the house belongs to P.W.1 at Podili and it is not the question of Section 32 (1) of Indian Evidence Act. Further, there is specific allegations against A1 to A3 that they lived together, where the deceased lead matrimonial life hardly for a period of one year. There is harassment/cruelty on the part of the accused demanding to sell the house. There are no missing of statements and hence, the material placed by the prosecution considered to be trustworthy. It is well settled principle that the Court has to see the ring of the evidence as a hole discarding minor discrepancies. In fact, there are no such omissions and contradictions elicited through the prosecution witnesses. The prosecution rightly established the guilty of A1 to A3 to attract the ingredients under section 304-B IPC beyond all reasonable doubt by substantial evidence.

32.Section 498-A and Sections 3 and 4 of Dowry Prohibition Act deals with the subject matter of cruelty for the reason of dowry and Section 304-B IPC is dealt with dowry death, this Court found A1 to A3 are 'not' guilty for the offence under sections 498-A of IPC Sections 3 and 4 of Dowry Prohibition Act.

15

33.In the result, this Court found A1 to A3 “guilty” for the offence punishable under section 304-B Indian Penal Code and accordingly liable for conviction under section 235 (2) Cr.P.C.,

The Court found A1 to A3 are not guilty for the offence punishable under section 498-A of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition

Act and accordingly acquitted them under section 235 (1) Cr.P.C.,

Dictated to Personal Assistant, transcribed by him, corrected and

pronounced by me in open Court, this the 10th day of February, 2016.

Chairman, Permanent Lok Adalat, Ongole, FAC-V Additional District & Sessions Judge,

Ongole.

34.On hering quantum of sentence, A1 again pleaded innocence and to extend mercy ; A2 submitted to extend lenient view while imposing sentence against him ; A3 submitted that she do not know anything about the case.

35.Considering the facts, circumstances and nature of the case, the Court is of opinion that the accused are not entitled to any lenient view or to extend benefits of Probation of Offenders Act for the following reasons :

a) The offences agaisnt women are increasing day by day like mushrooms,

b)The act of A1 to A3 resulted the death of a woman at the age of about 22 years,

c) The death of deceased took place just one year after the marriage, for which A1 to A3 are found to be responsible,

d) If the culprits like A1 to A3 are acquitted on the ground of lenient view, there is every possibility to increase crimes against women,

e) If the culprits are not convicted, there is every challenge and danger to the womenfolk,

f) If the Courts are inclined to extend lenient view, there is every endanger to the women and the society at large, and

g) The theory of punishment is not only to punish the guilty but deterrent to other wrong doers in the society.

Hence, This Court do not find any justified reasons to take lenient view while imposing sentence agasint A1 to A3.

16

36.In the result, this Court found A1 to A3 as “guilty” for the offence punishable under section 304-B Indian Penal Code and convicted them for the same under section 235 (2) Cr.P.C.;

Sentenced to suffer “rigorous imprisonment” for a period of 10 years each (Ten years) and also pay fine of Rs.10,000/- each (Rupees Ten Thousand only), in default of payment of fine, simple imprisonment for a period of 4 months each (Four Months).

If the total fine amount of Rs.30,000/- is paid, an amount of Rs.20,000/- is ordered to be paid to the father of the victim by name P.W.1 Gunturi Brahmaiah

S/o.Peddaiah, age 55 years, Viswabrahmin, Viswanadhapuram, Podili, under section 357 (1) Cr.P.C.,

Set off allowed under section 428 Cr.P.C.,

M.O.1 Chunni is ordered to be destroyed after appeal time is over, as per the orders of appeal.

A1 to A3 are not found guilty for the charges under section 498-A of

Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act and accordingly acquitted them under section 235 (1) Cr.P.C.,

Dictated to Personal Assistant, transcribed by him, corrected and

pronounced by me in open Court, this the 10th day of February, 2016.

Chairman, Permanent Lok Adalat, Ongole, FAC-V Additional District & Sessions Judge,

Ongole.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

P.W.1 Gunturi Brahmaiah (Complainant)- None – P.W.2 Vinukonda Sujatha (Sister of deceased) P.W.3 Vinukonda Madhavacahri (Sister-in-law of deceased) P.W.4 Devarapalli Srinivasarao (Hostile) P.W.5 Gunturi Sreenivasulu (Witness for payment of dowry) P.W.6 Aluri Anantha Lakshmi (Hostile) P.W.7 Vangara Anantha Veenaiah (Hostile) P.W.8 Vinjamuru Veeranjaneyulu (Compounder) 17

P.W.9 Nuthalapati Narayanaswamy (Witness for payment of dowry) P.W.10 Gudipati Peddabbai (Circumstantial witness) P.W.11 Kankanala Venkata Rao (Photographer) P.W.12 Palutla Rama Subrahmanya Sarma (Village Revenue Officer) P.W.13 M.Sridevi, Tahasildar-cum-Mandal Executive Magistrate, Ongole Mandal P.W.14 Dr.G.B.Raja Kumar, Professor & Head of Department of Forensic Medicine, RIMS Hospital, Ongole P.W.15 K.Narasimha Rao (Constable) P.W.16 Bakthavatsala Reddy, Sub Inspector of Ongole I Town P.S., P.W.17 R.Jaya Lakshmi, Assistant Superintendent of Police, Ongole Sub Division P.W.18 M.Rajanikanth Reddy, SDPO, Ongole Sub Division

DOCUMENTS MARKED

For prosecution:

Ex.P1/ 23.08.2011:Complaint given by P.W.1 Ex.P2/ -:Sec.161 Cr.P.C., statement of P.W.4 Ex.P3/ -:Contradictory portion in Sec.161 Cr.P.C. statement of P.W.6 Ex.P4/ -: Contradictory portion in Sec.161 Cr.P.C. statement of P.W.7 Ex.P5/ -:4 photos with C.D., Ex.P6/ -:Scene observation report Ex.P7/ -:Inquest report Ex.P8/ -:P.M. Certificate Ex.P9/ -:FIR ExP10/ 23.08.2011 :Rough Sketch ExP11/ 23.08.2011 :Rough Sketch

For Defence: NIL

MATERIAL OBJECTS MARKED

M.O.1 / Chunni

Chairman, P.L.A.Ongole, FAC-V A.D.S.J., Ongole.

18

IN THE COURT OF SESSIONS: PRAKASAM DIVISION: ONGOLE

Present: Sri B.B.Nagendra Rao, Chairman, Permanent Lok Adalat, Ongole, FAC-V Additional District & Sessions Judge, Ongole. Wednesday, this the 10th day of February, 2016.

SESSIONS CASE NO.135/2012

(Cr.No.221/2011 of Ongole I Town P.S.)

Name of the Police station : Ongole I Town P.S.

Name & Description of the accused:

1.Dronadula Hari Krishna S/o.Rama Krishna, aged 27 Yrs., Viswabrahmin by Caste, Private Electrician, R/o.Rajapanagal Road, 4th Cross Road, Ongole (A1) 2.Dronadula Rama Krishna S/o.Murthaiah, aged 54 Yrs., Viswabrahmin by Caste, RTC Driver, Ongole RTC Depot, R/o.Rajapanagal Road, 4th Cross Road, Ongole (A2) 3.Dronadula Bharathi W/o.Rama Krishna, age 48 Yrs., Viswabrahmin by Caste, R/o.Rajapanagal Road, 4th Cross Road, Ongole (A3)

Deceased : Dronadula Sunitha @ Krishna Veni W/o.Hari Krishna, age 22 Yrs, Viswabrahmin by Caste, R/o.Rajapanagal Road, 4 th Cross Road, Ongole.

Charges:- :U/Sec.498-A,304-B IPC, Sec.3 & 4 of DP Act.

Plea of the accused :Not guilty

Finding of the Court:Found Guilty U/Sec.304-B Indian Penal Code

Found not guilty U/sec.498-A of IPC and Sections 3 & 4 of Dowry Prohibition Act Sentence or Order :

In the result, this Court found A1 to A3 as “guilty” for the offence punishable under section 304-B Indian Penal Code and convicted them for the same under section 235 (2) Cr.P.C.; Sentenced to suffer “rigorous imprisonment” for a period of 10 years each (Ten years) and also pay fine of Rs.10,000/- each (Rupees Ten Thousand only), in default of payment of fine, simple imprisonment for a period of 4 months each (Four Months). If the total fine amount of Rs.30,000/- is paid, an amount of Rs.20,000/- is ordered to be paid to the father of the victim by name P.W.1 Gunturi Brahmaiah S/o.Peddaiah, age 55 years, Viswabrahmin, Viswanadhapuram, Podili, under section 357 (1) Cr.P.C., Set off allowed under section 428 Cr.P.C., M.O.1 Chunni is ordered to be destroyed after appeal time is over, as per the orders of appeal. A1 to A3 are not found guilty for the charges under section 498-A of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act and accordingly acquitted them under section 235 (1) Cr.P.C., * NB: Fine amount not paid

DATES OF

Occurrence : 23.08.2011 Complaint : 23.08.2011 19

Apprehension of accused : 30.08.2011 (A1) A2 & A3 Anticipatory Bail Commencement of trial : 19.02.2013 Closure of trial : 03.03.2014 Hearing : 05.02.2016 Judgment : 10.02.2016

Explanation for the delay:-

On 11.06.2012 this case was made-over to the Family Court-cum-VIII AD & SJ Court, Ongole. On 21.08.2012 this case was transferred to the file of V ADJ Court, Ongole vide District Court's Dis.No.5591, dated 30.07.2012. On 31.08.2012 though trial schedule was announced, rescheduled to 10.10.2012, and further rescheduled to 06.11.2012, posting the case to 04.12.2012 on which day though L.Ws.1 and 2, stated that they were not in a position to give evidence and hence schedule was canceled and rescheduled to 22.01.2013 which was further rescheduled to 19.02.2013 and on that day P.Ws.1 and 2 examined and Ex.P1 marked. On 20.02.2013 P.Ws.3 and 4 examined and Ex.P2 marked. On 21.02.2013 P.Ws.5 and 6 examined and Ex.P3 marked. On 22.02.2013 P.Ws.7 and 8 examined and Ex.P4 marked. On 25.02.2013 P.Ws.9 to 11 examined and Ex.P5 marked. On 26.02.2013 P.W.12 examined and Exs.P6 and P7 and M.O.1 marked. On 27.02.2013 P.Ws.13 to P15 examined and Ex.P8 marked. On 28.02.2013 P.W.16 examined and Ex.P9 marked. On 05.07.2013 P.W.17 examined and Exs.P10 and P11 marked. On 03.03.2014 P.W.18 examined, thereby prosecution evidence closed. On 19.03.2014 A1 to A3 examined under section 313 Cr.P.C., and reported no defence evidence. Since then, this case underwent several adjournments for arguments due to unreadiness of defence counsel. Finally on 05.02.2016, heard both sides and on 10.02.2016 Judgment

pronounced. Hence, the delay.

Chairman, Permanent Lok Adalat, Ongole, FAC-V Additional District & Sessions Judge,

Ongole.

Copy submitted to

The Registrar (Judicial), High Court of Judicature at Hyderabad, for the State of Telangana and the State of Andhra Pradesh

Copies to:

1.The Superintendent of Police, Ongole

2.The Director of Prosecutions, Hyderabad

3.The Additional Public prosecutor, Ongole 20

Accused

Judgment pronounced (vide separate judgment)

In the result, the accused is found not guilty for the offence punishable under Section 4 of the Protection of the Children from Sexual Offences Act, 2012 and under Section 366-A I.P.C. and he is acquitted under Section 232 of Cr.P.C. The bail bond of the accused will be in force for a period of six months as contemplated under Section 437-A of Cr.P.C.

I-ADJ //T C F B O //

SUPERINTENDENT

I-ADDITIONAL SESSIONS COURT ,

ONGOLE

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IN THE COURT OF FAMILY-CUM-VIII ADDITIONAL DISTRICT AND

SESSIONS-JUDGE: PRAKASAM AT ONGOLE

Present: Sri B.B.Nagendra Rao, Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII Additional District & Sessions Judge, Ongole. Thursday, this the 18th day of February, 2016.

CRIMINAL APPEAL NO.115 of 2013

From what Court of the appeal is :Spl.Judl.Magistrate of I-Class, Excise preferredCourt, Ongole.

No. of the case in Lower Court:C.C.No.21/2012

No. of the Appeal :C.A.No.115 of 2013

Name & Description of the Appellant:Muddabathina Venkata Prasad, S/o.Venkateswarlu, aged 37 Yrs, Balija by Caste, Rajapanakal Road, Ongole.

Name of the Respondent:State : Sub Inspector of Police, Chimakurthy, Rep. By Public Prosecutor, Ongole

The Sentence and law under which it :In the result, the accused is found guilty was imposed in Lower Court: for the offences under section 304-A of IPC and Sec.134 (a) & (b) read with 187 of M.V.Act, and he is convicted under section 255 (2) Cr.P.C., for the said offences. Accused is sentenced to undergo simple imprisonment for a period of TWO YEARS for the offence under section 304-A of IPC; Accused is also sentenced to pay a fine of Rs.250/- each for the offences under section 134 (a) & (b) read with 187 of MV Act, in default, simple imprisonment for a period of Seven Days for each of the offence. Total fine amount is Rs.500/-. The remand period of the accused i.e., from 23.03.2013 to 30.04.2013 shall be given set off under section 428 Cr.P.C., The accused is having right to file appeal before the appellate Court concerned.

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Whether confirmed, reversed or modified: and if modified the modification. In the result, the criminal appeal is DISMISSED and the Judgment passed by the Learned Spl.Judl. Magistrate of I Class, ExciseCourt,Ongole,in C.C.No.21/2012, dated 30.04.2013 is hereby confirmed, and the appellant/accused shall suffer the sentence imposed by the lower Court.

Set off is allowed.

No order as to case property since the prosecution neither seized, nor produced nor marked on its behalf.

DATES OF

Presentation : 22.05.2013 Filing : 28.05.2013 Hearing : 15.02.2016 Order : 18.02.2016

This Criminal appeal coming on 15.02.2016 for final hearing before me in the presence Sri N.Mohan Das, Advocate for the appellant and of the Learned

Addl.Public Prosecutor for the Complainant/State, upon hearing the Advocates on record, upon perusal of order of the lower court, grounds of appeal and other material available on record, and having stood over for consideration till this day, this Court made the following: -

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

1.The criminal appeal arose under section 374 of Cr.P.C., against the

Judgment of Spl.Judicial Magistrate of I Class, Excise Court, Ongole, in

C.C.No.21/2012.

2.The brief case of prosecution, in the lower Court, is as follows :

On 12.12.2011 the deceased-Kuruguntla Koteswaramma along with P.W.1 proceeded from Vengamukkapalem village to Chimakurthy village to see P.W.1's daughter, both got down at Chimakurthy bus-stand centre, Chimakurthy and at about 12.30 hours while they are crossing Podili-Ongole road from South to North, in the meanwhile, the accused being the driver of lorry bearing No.AP 27 W 5569 while proceeding from Ongole towards Podili side, drove the said lorry in a rash and negligent manner at high speed without blowing born and dashed the deceased, as a result, the deceased fell down under the right side front tire and the front right side 3 tire of the lorry run over the body of deceased, as a result, the deceased sustained fatal injuries on her waist and other body. P.W.1 and P.W.4 witnessed the accident and shifted the deceased to Dr.Venkataramana Hospital, Ongole, in 108 ambulance for treatment. While undergoing treatment the deceased lost her breathe on the same day at about 06.00 p.m. Later P.W.1 went to the police station and gave report basing on which P.W.8 The Sub Inspector of Police registered a case in

Cr.No.148/2011 and after completion of investigation, laid charge sheet.

3. The lower Court 'findings' are as follows :

“ - - - In the result, the accused is found guilty for the offences under section 304-A of IPC and Sec.134 (a) & (b) read with 187 of M.V.Act, and he is convicted under section 255 (2) Cr.P.C., for the said offences. Accused is sentenced to undergo simple imprisonment for a period of TWO YEARS for the offence under section 304-A of IPC; Accused is also sentenced to pay a fine of Rs.250/- each for the offences under section 134 (a) & (b) read with 187 of MV Act, in default, simple imprisonment for a period of Seven Days for each of the offence. Total fine amount is Rs.500/-. The remand period of the accused i.e., from 23.03.2013 to 30.04.2013 shall be given set off under section 428 Cr.P.C., The accused is having right to file appeal before the appellate Court concerned. . - - -.”

4.The appellant/complainant/state preferred the following grounds for preferring this appeal viz., (1) the Judgment of the lower Court is contrary to law, eight of evidence and probabilities of the case, (2) the lower Court failed to appreciate that P.W.1 did not speak the nature of the accident, identity of the accused; (3) the lower Court failed to appreciate that P.W.4 is a clearly planted witness and his name is not finding place in the FIR and basing on his testimony conviction is illegal ; (4) the lower Court failed to appreciate that the investigation done by

P.W.8 is perfunct in not holding test identification parade, the moment when his investigation revealed that the owner of the alleged crime vehicle is available with the alleged accused for surrender, to confirm identity of the driver of the crime vehicle; (5) the lower Court failed to appreciate that, a pedestrian crossing the road suddenly can not avoid accident and the very crossing of the road from South to North by the deceased itself is an unavoidable 4 accident and ought not have attributed any ingredients of Sec.304-A

IPC to the crime vehicle driver; (6) the lower Court failed to appreciate that, P.W.1 and P.W.4 never stated the identity of the accused and when the case of the prosecution is that, the driver of the vehicle ran away from the scene of offence, the non conducting of identification parade by the investigating officer in spite of the opportunity is in his fold, ought have acquitted the appellant; (7) the lower Court failed to appreciate that, except the uncorroborated untrustworthy and interested evidence of P.W.1 and

P.W.4 alone, there was absolutely no independent evidence. When the offence took place in the bus-stand ought to have acquitted the appellant/accused; (8) the lower Court failed to appreciate that, the trip sheet of the vehicle was not verified and how the name of the driver finding place in MVI report, ought to have acquitted the appellant and (9) the lower Court failed to appreciate that the prosecution failed to project proper case and ought not have taken the presumptions into consideration and ought to have acquitted the appellant.

5. Heard the learned counsel for appellant/accused and APP for respondent/prosecution.

6. Now, the point that arises for consideration is :

“Whether the appeal is to be allowed U/Sec.374 Cr.P.C., to set

aside the conviction and sentence passed by the Spl.Judl.

Magistrate of First Class, Excise Court, Ongole, in C.C.

No.21/2012, dated 30.04.2013 as prayed for ?”

7.The Judgment of the Learned Spl. Judl. Magistrate of I Class, Excise

Court, Ongole reads as follows :

“- - -In the result, the accused is found guilty for the offences under section 304-A of IPC and Sec.134 (a) & (b) read with 187 of M.V.Act, and he is convicted under section 255 (2) Cr.P.C., for the said offences. Accused is sentenced to undergo simple imprisonment for a period of TWO YEARS for the offence under section 304-A of IPC; Accused is also sentenced to pay a fine of Rs.250/- each for the offences under section 134 (a) & (b) read with 187 of MV Act, in default, simple imprisonment for a period of Seven Days for each of the offence. Total fine amount is Rs.500/-. The remand period of 5 the accused i.e., from 23.03.2013 to 30.04.2013 shall be given set off under section 428 Cr.P.C., The accused is having right to file appeal before the appellate Court concerned. . - - -.”

8.Perused the case records.

9.Sec.304-A of IPC reads as follows :

“304-A :Causing death by negligence : whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both .”

10.Section 134-A & B read with 187 of M.V. Act reads as follows :

134: Duty of driver in case of accident and injury to a person :-

“When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall –

a) unless it is not practicable to do so on account of mob fury or any other reasons beyond his control, take all reasonable steps to secure medical attention for the injured person, [by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities], unless the injured person or his guardian, in case he is a minor, desires otherwise;

b) given on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause (a), at the nearest police station as 6 soon as possible, and in any case within twenty-four hours of the occurrence “

11.Point :-

There is “no” dispute with regard to the identity of the accused. P.W.1/Parre

Govindamma, P.W.2/Mukkara Yedukondalu categorically identified and deposed the accused is the driver of the lorry at the time of the accident.

There is a due and proper corroboration among the prosecution witnesses/P.W.1, P.W.4 Battula Sreenivasa Rao; P.W.3 Kandukuri Sreenu, P.W.6

Ch.Ratna Kumar, Motor Vehicle Inspector and P.W.7 Dr.M.Subba Rao. The documents under Ex.P1 report; P3 scene observation report; P4 inquest report, P6

Motor Vehicle Inspector's report; P7 to P9 postmortem certificate, original FIR and rough sketch; also duly corroborates and strengthens the case of prosecution.

12.The evidence of P.W.1 during chief examination deposed that :

“ ..This accident took place nearly 7 months back at 1.00 p.m. at bus-stand centre,

Chimakurthy. On the day of accident myself and the deceased alighted bus-stand centre, Chimakurthy from a bus to go to house of my daughter by name Rajeswari.

I myself and the deceased were crossing the road one lorry came from Ongole side in the high speed hit the deceased , in the result, the deceased fell on the road and the front tire of the lorry went on the waist of the deceased. After the accident, the lorry was stopped. I saw the driver of the said lorry. Accused is the driver of the said lorry. The deceased sustained injuries on her waist as well as thighs.

13.The evidence of P.W.4 Battula Sreenivasa Rao during chief examination reads as follows :

“ On the date of the offence P.W.1 who is my mother-in-law telephoned me

and asked me to come to bus-stand centre, Chimakurthy as she is coming

to Chimakurthy along with deceased. Hence, I went to bus-stand centre,

waiting for their arrival. P.W.1 and deceased alighted from the bus and

while they are crossing the road from South to North one lorry came from

Ongole side with high speed and in negligent manner, hit the deceased, as a

result, the deceased fell on the road and the front right side tyre of the

lorry went on the deceased. The driver of the said lorry alighted from the

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lorry and went away. I found the driver. Accused is the driver of the said

lorry at the time of accident. The deceased sustained bleeding injury, on

her waist, somebody called 108 ambulance, then we shifted her to

Venkataramana Hospital, Ongole, for treatment. While undergoing the

treatment the deceased succumbed to injuries at about 6.00 or 6.30 p.m.

The number of the crime lorry is AP 27 W 5569. ”

14.The evidence of P.W.1, P.W.4 duly corroborates with each other, more particularly established the identity of the accused. The crucial point that should be noted is that the front tire of the lorry went on the waist of the deceased, who sustained severe injuries. P.W.1, P.W.4 categorical deposed the way the accident took place where the accused /appellant drove the lorry in high speed resulting the injuries to the deceased, consequently lead to her death. P.W.1, P.W.4 are cross examined for accused/ appellant, but 'no' attending circumstances are being drawn to disbelieve the evidence of P.W.1, P.W.2 coupled with Exs.P1 document.

15.The evidence of P.W.3/Kandukuri Sreenu, goes to show that he was present at the time of scene observation under Ex.P3, so also he was present at the time of inquest over the dead body of the deceased under Ex.P4. It is pertinent to note that the cross examination for accused/appellant reported as 'Nil”.

16.The evidence of P.W.6 Ch.Ratna Kumar, the Motor Vehicle Inspector, goes to show that he has inspected the crime vehicle AP 27 W 5569 on 14.12.2011 at 10.00 a.m. in the premises of Chimakurthy P.S., he found 'no' damages to the vehicle and the break system is in working condition and also steering system is intact, the condition of the tyres are satisfactory, he is of the opinion that the accident occurred “not” due to any mechanical defects of the crime vehicle and accordingly issued Ex.P6. There is no dispute regarding crime vehicle i.e AP 27 W 5569.

17.The evidence of P.W.7/Dr.M.Subba Rao, the Doctor, goes to show that he conducted postmortem examination under Ex.P7 and opined that the cause of death to the best of his knowledge, is due to multiple injuries. Here also it is pertinent to note that cross examination for P.W.6, P.W.7 reported as 'Nil'. So, the evidence of P.Ws.3,6 and 7 coupled with Exs.P3,P4,P6 and P7 left unchallenged, which duly supports and strengthen the case of the prosecution.

18.The evidence of P.W.8/M.Murali Krishna, the investigating officer, goes to show that on receipt of Ex.P1, he registered a case under section 304-A IPC, 8 issued FIR under Ex.P8, thereafter drawn rough sketch under Ex.P9, examined witnesses, held inquest, there upon, upon production of the accused/driver by the owner of the lorry he arrested the accused and sent him to judicial custody and after completion of investigation he filed charge sheet against the accused/appellant. P.W.8 when cross examined for the accused/appellant, he stated that the scene of offence is situated in busy locality.

19.The learned counsel for appellant/accused wants to impress upon the Court by repeatedly saying that the scene of offence is a busy locality, so the appellant/accused can not avoid the accident. The said admission itself suffice that there is negligence on the part of the appellant/accused for the reasons that once he knows that it is busy locality; it is the duty of the appellant/accused to take all precautions when he is moving in a busy locality.

20.What all constitutes, to sum up the evidence of P.W.1, P.W.4, P.W.3, P.W.6,

P.W.7 and P.W.8 coupled with Exs.P1, P3, P4, P6,P7 to P9, there is clear negligence on the part of the appellant/accused to constitute and to attract the ingredients of Section 304-A IPC.,

21.The learned counsel for the appellant relied on decisions (1) Mahadeo Hari

Lokre Versus State of Maharashtra reported in CDJ 1971 SC 579 (2) State :

Mohammaed Yusuf reported in 2000 STPL (LE-Crim) 1952 KARNATAKA and argued that there is no negligence on the part of the appellant/accused, more particularly that the scene of offence is a busy locality and to consider the same and to acquit the appellant/accused.

22.The learned Spl. Judl.Magistrate of I Class, Excise Court, Ongole, while passing Judgment in C.C.21/2012 at para No.14 categorically observed as under :

“ The contention of the learned defence counsel is that the road on which the accident occurred is a busy road and on either side of the road the flower vendors and fruit vendors will keep their pushing carts on either side of the road and there is no chance to proceed at high speed and accident occurred not due to the negligent driving of the accused and a suggestion to that effect also posed to P.W.1, which is denied by him and during cross-examination of P.W.8, P.W.8 admitted that the scene of offence is a busy road and on either side of the road the flower vendors and fruit vendors will keep their pushing carts. At this juncture it is significant to note that in scene observation report it is categorically mentioned that the width of the road is 24 feet with 6 feet 9 right margin. Therefore, the road on which accident occurred is not a narrow road, though the said road is a busy road it is the primary duty of any driver to be cautious and to take all precautions while proceeding on a busy road. Further a perusal of rough sketch categorically goes to show that the exact scene of offence is noted on the north side of the road and during cross-examination of P.W.8 who observed the scene of offence and drawn rough sketch of the scene of offence, no suggestion was put to P.W.8 denying the exact scene of offence noted in the rough sketch and the road which is leading from

Ongole towards Podili is from East to West and the vehicles proceeding from Ongole towards Podili has to ply on the left side of the road in the direction in which they are proceeding, which is Southern side of the said road, whereas the exact scene of offence is noted on the Northern side of the road which is right side to the crime vehicle which is wrong side in the direction in which crime vehicle is proceeding. Therefore, the crime vehicle which is proceeding from

Ongole towards Podili has to ply on the left side of the road and not on its right side i.e., on the Northern side of the road which is wrong side to the crime vehicle in the direction in which it is proceeding.

Therefore, the crime vehicle proceeding on the right side of the road in stead of proceeding on the left side of the road i.e., north side of the road instead of Southern side of the road is nothing but grave negligence on the part of accused who is driver of crime vehicle, if the accused has proceeded on the left side of the road in the direction in which he has to proceed in stead of proceeding on its right side which is wrong side and if accused has taken proper care and caution, certainly the accused could have avoided the occurrence of the accident. It is therefore, it could be safely concluded that accident occurred due to negligent driving of the accused and accused is responsible for the accident.”

23.The above findings of the Learned Spl.Judl.Magistrate of I Class, Excise

Court, Ongole, rightly clarified and observed for the stand taken by the learned

Counsel for the appellant/accused holding that there is a grave negligence on the part of the appellant/accused. It is also observed that if the appellant/accused has taken proper care and caution, the accident could have been avoided. Considering the facts of the case, the Judgment of the Lower Court, this Court most humbly submits the referred citations relied on by the appellant/accused are “no” way helpful to the facts on hand.

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24.The Learned Spl.Judl.Magistrate of I Class also categorically observed in respect of the offence under section 134-A and B read with 187 of the MV Act in para No.15 as under :

“ With regard to Sec.134 (a) & (b) read with 187 of M.V. Act, on close reading of evidence of P.W.1 & P.W.4 who are cited as eye witnesses, it is categorically disclosed that immediately after the accident the driver of the crime vehicle alighted from the lorry and went away and they shifted the deceased to Venkata Ramana Hospital, Ongole, in 108

Ambulance, which clearly indicates that the accused fled away and

P.W.1 & P.W.4 shifted the deceased who sustained injuries to Venkata

Ramana Hospital, Ongole, and P.W.1 gave report to the police on 12.12.2011 at 08.00 p.m. Therefore, accused being the driver of crime vehicle has violated the provisions of Motor Vehicles Act under section 134 (a) & (b) read with 187.”

25.There is “no” such arguments put forth by the learned counsel for the appellant/accused with regard to the findings of the Lower Court for Section 134 (a) & (b) read with 187 of M.V. Act. It is the duty of the driver/appellant/accused to take immediate necessary steps soon after the accident, but the appellant/accused could not do so. The lower Court rightly observed that the appellant/accused has violated the provisions of Motor Vehicle Act and found guilt for the offence under section 134 (a) & (b) read with 187.

26.To sum up, considering all material available before the Court, this Court do “not” find any irregularity or illegality in the Judgment passed by the Learned

Spl.Judl.Magistrate of I Class, Excise Court, Ongole, in C.C.212012, dated 30.04.2013. The Judgment of the learned Spl.Judl.Magistrate of I Class, Excise

Court, Ongole, in C.C.No.21/2012, dated 30.04.2013 does 'not' warrants any interference and accordingly entitled for confirmation.

27.In the result, the criminal appeal is DISMISSED and the Judgment passed by the Learned Spl.Judl. Magistrate of I Class, Excise Court, Ongole, in

C.C.No.21/2012, dated 30.04.2013 is hereby confirmed and the appellant/accused shall suffer the sentence imposed by the lower Court.

Set off is allowed under Section 428 Cr.P.C.

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No order as to case property since the prosecution neither seized, nor produced nor marked on its behalf.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in open Court, on this the 18 th day of February, 2016.

Chairman, Permanent Lok Adalat, Ongole, FAC- Judge, Family Court-cum-VIII A.D.J.,Ongole.

Copy to, 1. The Spl.Judl. Magistrate of I Class, Excise Court, Kanigiri.

2. The Additional Public Prosecutor, Family Court-cum-VIII A.D.J.,Ongole.

3. Counsel for the accused.

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IN THE COURT OF FAMILY-CUM-VIII-ADDITIONAL DISTRICT JUDGE :

ONGOLE.

Present: Sri B.B.Nagendra Rao, Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII-Additional District Judge, Ongole. Friday, this the 12th day of February, 2016.

APPEAL SUIT NO.19 OF 2012

Between:

Yadala Subba Rao @ Yadala Venkata Subba Rao, S/o.Rama krishna, aged 57 Yrs, Hindu, R/o.D.No.8-10-A, Paletivari Street, Kavali Town, Nellore District … APPELLANT/PLAINTIFF

And

Ravva Sankara Lingam, S/o.Rama Chandram, aged 53 Yrs, Hindu, Employee in State Bank of Hyderabad, Prakala Post, Warangal District, presently working at

S.B.H., Hanumakonda, Warangal District ... RESPONDENT/DEFENDANT

On appeal against the Judgment and Decree, dated 23.08.2011 passed in O.S. No.341/2007 on the file of Prl.Senior Civil Judge's Court, Ongole, in between

Yadala Subba Rao @ Yadala Venkata Subba Rao, … PLAINTIFF

And

Ravva Sankara Lingam ... DEFENDANT

This Appeal coming on 29.01.2016 for final hearing before me in the presence of Sri O.Sreenivasa Rao, Advocate for the Appellant/plaintiff and of Sri

W.R.B.Bharadwaja, Advocate for respondent/Defendant, upon perusal of the

Order of the lower Court, oral and documentary evidence and other material available on record and having stood over till this day for consideration, this Court delivered the following:-

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

1.This appeal is filed by the appellant/plaintiff to set aside the Judgment and

Decree, dated 23.08.2011 passed in O.S.341/2007 on the file of Prl.Senior Civil

Judge's Court, Ongole, and for costs throughout, as his suit for recovery of

Rs.2,27,945 together with subsequent interest on the foot of promissory note,

dated 30.09.1998 and transfer endorsement, dated 10.06.2003 was 'dismissed'.

2. The brief averments of the appellant/plaintiff in O.S.341/2007 are as follows :-

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that defendant borrowed one lakh rupees from one P.Anuradha on 30.09.1998 and executed the suit promissory note on the same day agreeing to repay the same with interest at 24% p.a. He made part payment of Rs.1,000/- on 01.06.2001 an endorsed the same on the back side of the promissory note. She, later, transferred it in favour of the plaintiff on 10.06.2006 for a consideration one lakh rupees and endorsed the same on the back side of promissory note. Then, the plaintiff got issued a legal notice on the defendant, on 05.08.2003, demanding for payment but the defendant refused to receive the said notice and hence he has constrained to file the suit.

3.The defendant denying borrowal of amount from the transferor of plaintiff and execution of suit promissory note thereof, contended that he took one lakh rupees from the husband of the transferor of the plaintiff by name P.Lakshmaiah by way of 4 demand drafts on 28.08.1998 and 05.09.1998 as interest-free-hand loan and discharged it on 23.08.2001 by way of two demand drafts at Rs.50,000/- each to be drawn on State Bank of Hyderabad, Kurnool Branch Code No.2492, issued by State Bank of Hyderabad, Parakala Branch, in the name of his wife P.Anuradha and Daughter P.Madhavi, and as never agreed to pay interest for the said interest- free-hand loan, aggrieved P.Lakshmaiah fabricated the promissory note. He also filed additional written statement on the points of territorial jurisdiction and limitation praying the Court to dismiss the suit.

4.In the trial Court, plaintiff himself examined as P.W.1 and examined the attestor and also the transfer endorsement of the pro-note as P.W.2 and transferor of the suit pro-note as P.W.3 and marked Exs.A1 to A6. Whereas, the defendant himself examined as D.W.1 and got marked Exs.B1 to B8 documents. Apart from it, the Deputy Government Examiner/Expert was examined as C.W.1 and got marked the report as Ex.C1.

5.In the trial Court, after hearing the arguments of both parties, the learned

Prl.Senior Civil Judge, Ongole, 'dismissed' the suit; and having aggrieved on it,

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plaintiff, as appellant, preferred this appeal on the following grounds :

(a) that the decree of the Lower Court is contrary to law, weight of evidence and probabilities of the case;

(b) the Lower Court having failed to appreciate the evidence of P.Ws.1 to 3 properly regarding place of execution of promissory note is Ongole ;

(c) the lower Court ought not to believe Exs.B7 and B8 and the defendant was not given opportunity to examine the issuing authority of Exs.B7 and B8

(d) the lower Court failed in observing the initial burden discharged by the plaintiff;

(e) the lower Court failed in observing and appreciating the evidence of

P.W.1 with regard to Ex.A3;

(f) that the lower Court failed in observing all the crucial aspects that decides the suit and finally dismissed the suit by disbelieving his positive evidence;

(g) the lower Court failed to appreciate the evidence regarding Issues 2 to 4 and additional Issue No.1 and dismissed the suit in erroneous manner etc.,

6.No representation on behalf of appellant, in spite of detailed conditional docket orders, dated 21.01.2016, 22.01.2016 and 29.01.2016 nor filed written arguments. This appeal is of 2012.

7.Written arguments filed for respondent. Hence, posted for Judgment on merits

8.Now, the point that arises for consideration is:

“Whether the appeal is to be allowed, to set aside the Judgment and

Decree in O.S.341/2007, dated 23.08.2011 on the file of Learned

Prl.Senior Civil Judge, Ongole, and to decree the suit as prayed for ?”

8.Perused the case records.

9.The Learned Principal Senior Civil Judge 'dismissed' the suit on contest in detail on 23.08.2011. The learned Principal Senior Civil Judge, Ongole, dismissed the suit in O.S.341/2007 also holding issues 2 & 3 and opined that the plaintiff/appellant did not discharge his initial burden of proving Exs.A1 to A3

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consequently, answered Issue No.4 and Additional Issue No.1 and concluded that the Principal Senior Civil Judge's Court has “no” jurisdiction to entertain the suit.

10.Ex.A1 is said to be the transaction between Smt.Puvvada Anuradha/P.W.3 and defendant/respondent Ravva Sankaralingam/D.W.1. Ex.A3 is said to be the transaction between the plaintiff/appellant/P.W.1. Yadala Subbarao @ Yadala

Venkata Subbarao and P.W.3/Puvvada Anuradha.

11.This Court wants to impress upon and to discuss the jurisdiction of Principal

Senior Civil Judge's Court, Ongole, and Judgment of the Learned Principal Senior

Civil Judge's Court, Ongole passed in O.S.341/2007, dated 23.08.2011.

12.The crucial discussion for consideration to decide the jurisdiction of the

Court, are Exs.A1 and Ex.A3. On perusal of Ex.A1, dated 30.09.1998 and Ex.A3,

dated 10.06.2003, there is 'no' reference as to the place of respective transactions.

Ex.A1 and Ex.A3 are silent, more particularly where the said transactions took place at Ongole or Kavali so on so forth. The learned Principal Senior Civil Judge discussed at length by answering Issue No.4 and Additional Issue No.1 categorically held that either from the pleadings or evidence, the plaintiff/appellant fails to establish the jurisdiction of the Court; when the plaintiff/appellant fails to plead, question of proof does not arise; there is a lack of clarity with regard to the jurisdiction of the Court; the plaintiff/appellant failed to place cogent and convincing evidence to show that the initial transaction Ex.A1 took place at Ongole falling under the jurisdiction of this Court and held that the Principal Senior Civil Judge's

Court has no jurisdiction to entertain the suit. This Court convinced, much less confirmed the view of the Learned Principal Senior Civil Judge, who decided and concluded that the Principal Senior Civil Judge's Court has “no” jurisdiction to entertain the suit.

13.Coming to the other aspect, that is the validity of Exs.A1 to A3 transactions.

The learned Principal Senior Civil Judge while answering Issue Nos.2 and 3 came

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to a conclusion that the plaintiff/appellant did not discharge his initial burden of proving Exs.A1 to A3 transactions and, hence, held that the plaintiff failed to prove that Exs.A1 to A3 are true, valid and binding on the defendant. To consider the documents under Exs.A1 to A3, the evidence of P.Ws.1 to 3 and non examination of scribe and circumstances behind are very much crucial.

The evidence of P.W.1 during cross examination reads as follows :

“ I was not present at the time of execution of Ex.A1 and I do not ..

know about the said transaction. ”

“ ...P.W.3 is original promissee. It is not mentioned in the plaint or in chief

affidavit, at which place Ex.A1 transaction took place and at which place

Ex.A2 transaction took place and at which place Ex.A3 transaction took

place. I was not present at the time of Ex.A1 and Ex.A2 transactions. I

although also issued notice to the defendnt but he did not receive the

same. After return of the notice, I did not issue any notices to P.W.3. I

did not ask P.W.3 for return of my amount by the time of filing of suit.

The defendant is working at Parakala of Warangal District... ”

“ ...Ex.A3 transaction took place at Kavali at my house on 10.03.2003. It is

not mentioned in the plaint or chief affidavit regarding the same.

D.Venkata Subbaiah scribed Ex.A3 endorsement... ”

“ ...P.W.3 has not taken interest on Ex.A1 pronote from me. The witness

says he do not know the meaning of the scribe and there is no signature of

scribe on Ex.A3 endorsement.... ”

14.Admittedly P.Ws.1 and 3 are related to each other. The above admission of

P.W.1 clearly goes to show that Ex.A1; so also Ex.A3 are silent at which place the so-called transactions took place either at Ongole or Kavali respectively ?. P.W.3 is resident of “Ongole”, whereas P.W.2 is the resident of “Kavali” and the defendant is resident of “Parakala” of Warangal District. So, there is clear ambiguity regarding the place of transaction under Ex.A1; so also under Ex.A3. It is the admission of P.W.1 that his chief affidavit and pleadings are silent regarding the place of transaction of Exs.A1 and A3.

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15.The another witness for consideration is P.W.2, who is said to the attetestor of Ex.A1 and Ex.A3.

The evidence of P.W.2 during cross examination reads as follows :

“ ...Today I am on off duty. On the date of Ex.A1 transaction I am

working at Venkatagiri. On 10.06.2003 I am working at Gudur. On

10.06.2003 on the date of Ex.A1 I am on on duty. My duty will be

completed at 5.00 p.m. Ex.A1 transaction took place at about 8.45 or

9.00 p.m. I applied permission on that day and came to ongole, where

Ex.A1 transaction took place. Ex.A3 transaction also took place at about

9.00 p.m. On that date I took permission and came to Kavali where Ex.A3

transaction took place - - - ”

“ ....For Ex.A1 transaction I was working under Lakshmaiah as car driver.

The said Lakshmaiah is P.W.3's husband... ”

“ ...The defendant himself scribed Ex.A1 pro-note. I saw the defendant

for first time at the time of Ex.A1 transaction who is husband of P.W.3

“ .....Venkata Subbarao did not sign on Ex.A3 endorsement Except the

Ex.A1 and A3 transactions I did not attest any other pronotes..... ”

16,So, as per the evidence of P.W.2, he is henchmen of the husband of P.W.3 and for that reason he came into picture. There is 'no' record placed by P.W.2 that he came down to Ongole at the time of execution of Ex.A1 or he went to Kavali at the time of execution of Ex.A3 transaction. So, P.W.2 is a 'planted' witness to suit the case of P.W.3, so also P.W.1.

The evidence of P.W.3 during cross examination reads as follows :

“ ...One Balanagaraju is the attestor on the pronote who is working driver

in RTC... ”

“ ...I do not remember the transfer endorsement whether I made any

transfer endorsement on the back side of the pronote or separate

letter. There is no stamps on transfer transaction myself, Subbarao,

Nagaraju are present on the date of transaction one Bala Venkata

Subbaiah is the scribe of the transfer endorsement. My native place is

Kavali. The defendant is working in Parakala.... ”

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“ ....Ex.B1 is the letter send by my husband. Ex.B2 is another letter

addressed by my husband, dated 5.9.98. I do not know whether my

husband send Rs.50,000/- by way of two D.Ds one for Rs.40,000/- and

another for Rs.10,000/-. I do not know whether my husband send

another Rs.50,000/- under two D.Ds one is for Rs.30,000/- and another

one is for Rs.20,000/- with a covering letter, dated 5.9.98 or not. One

Radha Madhavi is my daughter. It is true on 26.3.2001 an amount of

Rs.50,000/- by way of D.D. drawn in the name of my daughter Madhavi

and on the same date another D.D. drawn in the name of mine for

Rs.50,000/- send by the defendant covered under Ex.B3 and Ex.B4.

Witness adds to say those D.D. were sent for some other purpose. I do

not know whether Ex.B3 and B4 D.Ds were related to the debt taken by

the defendant from my husband nor not.... ”

17.The above evidence goes to show that P.W.3 wants to claim innocence of the transaction for which her husband and daughter are concerned.

18.The further evidence of P.W.3 during cross examination reads as follows :

- - “It is true in Ex.A1 promissory note does not contain the

said pronote was executed in Ongole. Ex.A1 pro-note was

scribed by the defendant himself. One Balanagaraju was

attestor of the promissory note. For the transfer endorsement

also Balanagaraju was an attestor. - - ”

19.This Court already held that Balanagaraju (P.W.2) is yes-man and planted witness to suit the case of P.W.1 and so also to the case of P.W.3. The appellant/Plaintiff 'miserably' failed to establish the place of transaction under

Ex.A1 is at Ongole and Ex.A3 is at Kavali. More particularly one Venkata

Subbarao who is said to be scribe in Ex.A3, is 'not' examined. The same is fatal to the claim of the plaintiff/appellant/P.W.1. Upon due consideration of the material

before the Court, the Court is of the considered opinion that the learned Principal

Senior Civil Judge, Ongole, has rightly considered and concluded that

Plaintiff/appellant/P.W.1 has “failed” to prove that Exs.A1 to A3 are true, valid and

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binding on the defendant. So, this Court is of opinion that the Judgment of the learned Principal Senior Civil Judge, Ongole, is entitled for confirmation, accordingly the appeal is liable to be “dismissed”.

20.In the result, the appeal is DISMISSED and the Judgment passed by the

Learned Prl. Senior Civil Judge, Ongole, by dismissing the suit in

O.S.No.341/2007, dated 23.08.2011 is hereby “Confirmed” with costs throughout.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in open Court, this the 12th day of February, 2016.

Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII A.D.J.,

Ongole.

“ No” additional oral evidence is adduced and documents are marked on either side in this appeal.

Chairman,P.L.A., FAC/J-F.C.,

IN THE COURT OF FAMILY-CUM-VIII-ADDITIONAL DISTRICT JUDGE :

ONGOLE.

Present: Sri B.B.Nagendra Rao, Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII-Additional District Judge, Ongole. Friday, this the 12th day of February, 2016.

APPEAL SUIT NO.19 OF 2012

Between:

Yadala Subba Rao @ Yadala Venkata Subba Rao, S/o.Rama krishna, aged 57 Yrs, Hindu, R/o.D.No.8-10-A, Paletivari Street, Kavali Town, Nellore District … APPELLANT/PLAINTIFF

And

Ravva Sankara Lingam, S/o.Rama Chandram, aged 53 Yrs, Hindu, Employee in State Bank of Hyderabad, Prakala Post, Warangal District, presently working at

S.B.H., Hanumakonda, Warangal District ... RESPONDENT/DEFENDANT

On appeal against the Judgment and Decree, dated 23.08.2011 passed in O.S. No.341/2007 on the file of Prl.Senior Civil Judge's Court, Ongole, in between

Yadala Subba Rao @ Yadala Venkata Subba Rao, … PLAINTIFF

And

Ravva Sankara Lingam ... DEFENDANT

This appeal is filed by the appellant/plaintiff to set aside the Judgment and

Decree, dated 23.08.2011 passed in O.S.341/2007 on the file of Prl.Senior Civil

Judge's Court, Ongole, and for costs throughout, as his suit for recovery of

Rs.2,27,945 together with subsequent interest on the foot of promissory note,

dated 30.09.1998 and transfer endorsement, dated 10.06.2003 was 'dismissed'.

Appeal presented on : 10.10.2011Appeal filed on : 01.02.2012

Value of Appeal for the purpose of Court Fees and Jurisdiction is

Rs.4,06,013/- (including decretal amount of Rs.2,27,945 Plus interest @ 24 p.a., thereon therefrom from the date of suit till the date of decree is Rs.1,79,866-66

Minus interest on part payment of Rs.1,000/- from the date of suit till the date of decree is Rs.1,798-66) on which a C.F of Rs.6,526/- is paid under section 49 of

APCF & SV Act.

This Appeal coming on 29.01.2016 for final hearing before me in the presence of Sri O.Sreenivasa Rao, Advocate for the Appellant/plaintiff and of Sri

W.R.B.Bharadwaja, Advocate for respondent/Defendant, upon perusal of the

Order of the lower Court, oral and documentary evidence and other material available on record and having stood over till this day for consideration, this Court

Doth Order and Decree :

(a) that the appeal be and is hereby DISMISSED and the Judgment passed by the Learned Prl. Senior Civil Judge, Ongole, by dismissing the suit in O.S.No.341/2007, dated 23.08.2011 is hereby “Confirmed”

and

(b) that the Appellant/Plaintiff do pay to the Respondent/Defendant a sum of Rs.8,590/- towards the costs of the suit and Rs.8,740/- towards the costs of this appeal bearing his own costs of Rs.14,308/- in the Suit and Rs.6,528/- towards the institutional costs of this Appeal.

Given under my hand and seal of the Court, this the 12th day of February, 2016.

Chairman, Permanent Lok Adalat, Ongole, FAC-Judge, Family Court-cum-VIII A.D.J.,

Ongole.

TABLE OF COSTS

For Appellant : For Respondent :

1.Stamp on Vakalat:Rs. 2-00Rs. 2-00 2.Stamps on Appeal:Rs.6,526-00 - 3.Advocate Fees: -Rs.8,538-00 4.Type Charges: - Rs. 200-00 * Total Rs.6,528-00 Rs.8,740-00

NB: Institutional costs for appellant allowed

Chairman,P.L.A., FAC/VIII ADJ.,