Sri Ch.Venkata Naga Srinivasa Rao

1 .

IN THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE, ELURU

Present: Sri Ch.Venkata Naga Srinivasa Rao

Additional Senior Civil Judge,

Eluru.

Monday, the 22nd day of March, 2021.

ORIGINAL SUIT No.479 OF 2014

Between:

Velaga Pushpalatha, w/o.Baburao, Female, aged 46 years, D.No.17-2-82H, Housewife, Priyanka Gardens, Suddapalli Donka Road, Bavaji Math, Old Guntur, Guntur District. … Plaintiff AND Chaganti Dhananjaya Rao, s/o.Satyanarayana, Pokalavari Street, D.No.3C-10-15, Near Jogimeda, Western Street, Eluru, West Godavari District.

... Defendant

This suit came before this Court on 05.03.2021 for final hearing in the presence of Sri D.Krishna Sastry, advocate for Plaintiff and of Sri K.S.Swamy, advocate for defendant and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

The plaintiff filed this suit against the defendant directing the defendant to vacate and deliver vacant possession of the encroached site of 40 square yards shown as ‘ABCD’ in the plaint plan to the plaintiff and to grant a mandatory injunction directing for removal of compound wall constructed by the defendant shown as ‘EF’ in the plaint plan in the encroached site belonging to the plaintiff and award costs of the suit.

2) The abridged averments of the plaint are as follows:

i) The plaintiff is the absolute owner of an extent of 194-0 square yards of site in T.S.Nos.1190 and 1191 of Eluru Town with a jammu house bearing

D.No.3C-10-14 situated in Pokalavari veedhi, Western street, Eluru Town and got it under a registered Will dt.8.8.2005 executed by her paternal grand-mother

Smt.Ventrapragada Sowbhagyamma. The testatrix of the Will died on 23.8.2012.

Ventrapragada Sowbhagyamma got the above said property under a registered settlement deed dt.30.1.2001 executed by her brother Siva Reddy Venkatateswara 2 . Rao. The said Venkateswarao got the said property by succession and it is his ancestral property.

ii) The defendant is in possession and enjoyment of some site with a house therein on the east of the plaint schedule property. Previously, there was a mud wall from north to south separating the plaint schedule property and the defendant’s property. Sowbhagyamma used to stay in the said property and during her last days, she was shifted to the plaintiff’s house at Guntur. After the death of

Sowbhagyamma, the plaint schedule property was kept vacant and taking advantage of the said situation, the defendant removed the mud wall and constructed a compound wall by encroaching an extent of 40 square yards of site belonging to the plaintiff about two months back. The plaintiff, having come to know of the same, came to Eluru and questioned the defendant in the presence of elders. The defendant initially promised to remove the compound wall and construct a compound wall in its original place and began postponing the same and later refused to remove the compound wall. Hence, the suit.

3) The defendant filed his written statement denying the plaint allegations in toto and inter alia contending that the suit is bad for non-joinder of proper parties and thus liable to be dismissed. The suit of the plaintiff is not maintainable in law and basing on the previous litigation and Judgments and principles of Res Judicata is applicable. The defendant and his brothers are the absolute owners of 234 square yards of site along with structures therein is

T.S.No.1192, 1191 and 1190 surrounded with ancient and old compound wall belongs to them. Since 1970, the said Siva Reddy Venkateswara Rao made several attempts to grab the property of the defendant and his brothers and at first instance, the said Siva Reddy Venkateswara Rao filed O.S.No.373/1990 before the

District Munsif Court Eluru for partition of the plaint schedule property of an extent of 194 square yards alleged to have been situated in T.S.No.1192,1191 and 1190 3 . and the said suit was dismissed and against the said Judgment an appeal in

A.S.No.141/1999 was filed and the same was also dismissed and the said litigation

was ended against Siva Reddy Venkateswararao and in favour of the defendant and his brother, who were the defendants in the said suit. In the said suit, an advocate-commissioner was appointed, who measured the site in the said T.S.Nos and noted the possession and enjoyment of the defendants and defendant’s brothers in the said T.S.Nos. In order to defeat the said Judgment and decree, Siva

Reddy Venkateswara Rao, at the instance of Sowbhagyamma, executed a settlement deed on 3.1.2001 settling the entire site in T.S.Nos.1190 and 1191 including a thatched house of portion of T.S.Nos.1190 separated by a brick wall and from then onwards, the said Sowbhagyamma and Venkateswara Rao threatened the defendant and defendant’s brothers that they would demolish the boundary wall and occupy the property of the defendant and defendant’s brothers forcibly. In those circumstances, the defendant and his brothers Ch.Venkateswara

Rao, Koteswara Rao, Radha Krishna and Ram Mohanarao filed a suit in

O.S.No.381/2001 on the file of I Addl.Junior civil Judge Court, Eluru against

Ventrapragada Sowbhagyamma and Siva Reddy Venkateswara Rao through whom the plaintiff in the present suit claiming rights through the Will dt.8.8.2005, for permanent injunction and the said suit was decreed. Against the said Judgment and decree Sowbhagyamma and Venkateswara Rao filed appeal in

A.S.No.203/2004 on the file of II Addl.District Judge’s Court, Eluru and the said

appeal was also dismissed and a permanent injunction was granted, which is binding on the successors and alienees of Sowbhagyamma and Venkateswara Rao.

The said Venakteswara Rao and Sowbhagyamma have never been in possession and enjoyment of the property referred in the settlement deed dt.30.1.2001 and

Will dt.8.8.2005. On the other hand, the said Venkateswara Rao in his cross examination in the said suit admitted that he was in possession and enjoyment of 4 . an extent of 70 square yards. The settlement deed does not reveal how the flow of title to Venkateswara Reddy. In fact, the subject property was the property of paternal grand-father of the defendant. Even in long back one Surarapu Sridevi filed a suit in O.S.No.176/1970 on the file of Principal Civil Judge’s Court, Eluru against the parents of the defendant and his brothers and in the said suit the

Hon’ble Court observed that the defendant and his brothers have title over the

property in T.S.Nos.1192, 1191 and 1190 and no appeal was preferred against the said Judgment and decree. Since times immemorial the defendant and his brothers are in possession and enjoyment of 234 square yards of site situated in

T.S.Nos.1192, 1191, 1190 surrounded by the compound wall. The defendant and his brothers never encroached any part of the property of the plaintiff and prayed this Court to dismiss the suit.

4) On the strength of the above, the following issues are settled for trial:

1)Whether the suit is bad for non-joinder of proper parties?

2)Whether the principle of Res Judicata is applicable?

3)Whether the plaintiff is entitled to recovery of possession of the plaint schedule property by evicting the defendant from the suit schedule property?

4)Whether the plaintiff is entitled to mandatory injunction as sought?

5)To what relief?

5) During the course of trial, on behalf of the plaintiff, Pws.1 and 2 are examined and Exs.A.1 to A.3 are marked and on behalf of the defendant, DW.1 is examined and Exs.B.1 to B.20 are marked.

6) Heard both the sides.

7)Issue No.1

i) Even though the defendant has taken a plea of non-joinder of proper parties, he has failed to aver or give evidence as to who are the proper parties and how the suit is bad for non-joinder of proper parties. Mere taking pleading in the 5 . written statement would not suffice to prove the same and it is for the defendant to specifically plead and prove who are the proper parties and for their non-joinder, the suit is bad and give evidence to that effect but on perusal of the entire cross examination of PW.1, it seems that the defendant has maintained silence as to how the suit is bad for non-joinder of proper parties and as such this issue is answered against the defendant.

8) Issue Nos.2 to 4

i) All these issues are taken up together for common determination as the discussion under issue No.2 also covers the issues 3 and 4 also.

ii) Learned counsel for the plaintiff has contended that the doctrine of

Res Judicata is not applicable to the case on hand as the present suit is filed for recovery of possession of the plaint schedule property and also for mandatory injunction and the earlier suits were filed for partition and permanent injunction only.

iii) He has further contended that the plaintiff got the plaint schedule property by way of a registered Will said to be executed by Sowbhagyamma under

Ex.A.1 and Sowbhagyamma was settled the property covered under Ex.A.1 by her brother Siva Reddy Venkateswara Rao by way of a registered settlement deed on 30.1.2001 under Ex.A.2. He has further contended that Siva Reddy Venkateswara

Rao has got the said property from his ancestors and the defendant has no right or title over the plaint schedule property but forcibly occupied the plaint schedule property to an extent of 40 square yards of site in the absence of the plaintiff in the Town and constructed a compound wall and as such the said compound wall has to be removed and the plaint schedule property shall be handed over to the plaintiff. He has further contended that to prove the case of the plaintiff, the plaintiff examined herself as PW.1 and also examined one of the attestors of Ex.A.1 6 . as PW.2 and their evidences are consistent through out and prayed this Court to decree the suit.

iv) Per contra, learned counsel for the defendant has contended that the principle of Res Judicata is applicable to the case on hand as the subject matter is one and the same so also one side of the parties are the persons, who bequeathed the property to the plaintiff and the other side are the defendants and as such again filing the suit is clearly hit by the principle of Res Judicata.

v) He has further contended that it is for the plaintiff to prove the Will but in fact the Will is a created and fabricated one and the plaintiff has failed to prove the same as it is elicited from the cross examination of PW.2 that by the time of his reaching the Sub Registrar Office, thumb impression of the testatrics was already was affixed. He has further contended that in fact Siva Reddy

Venkateswara Rao had no right to execute the settlement deed under Ex.A.2 as he has no right or title over the plaint schedule property as the rights were already settled in O.S.No.373/1990 and the appeal preferred by Siva Reddy Venkateswara

Rao in A.S.No.141/1999 under Ex.B.20 and in such circumstances he had no right to convey the property to Sowbhagyamma and thereby Sowbhagyamma had no right to Ex.A.1 registered Will and in the said Judgment the Hon’ble Court has specifically observed that the plaintiff i.e., Siva Reddy Venkateswara Rao in

O.S.No.373/1990 is in possession and enjoyment of 72 square yards only and is

not entitled to partition of the property.

vi) He has further contended that the said Judgment and Decree in

O.S.No.373/1990 and Judgment and Decree in O.S.No.381/2001 are also binding

on the plaintiff. He has further contended that Siva Reddy Venkateswara Rao categorically admitted in his cross examination in O.S.No.373/1990 that he is in possession and enjoyment of 70 square yards of site and the same is sufficient to dismiss the present suit also and prayed this Court to dismiss the suit.

7 . vii) Discussion as to pivotal documents-

The defendant examined himself as DW.1, who in his examination-in-chief has specifically pleaded that Siva Reddy Venkateswara Rao filed a suit in

O.S.No.373/1990 against him and his brothers for partition of the plaint schedule

property wherein the plaint schedule property herein is part and parcel of the said property and the said suit was dismissed and against the said Judgment and

Decree, the said Siva Reddy Venkateswara Rao filed appeal in A.S.No.141/1999 and the same was also dismissed. He has also specifically given evidence that himself and his brothers filed a suit in O.S.No.381/2001 against Sowbhagyamma and Siva Reddy Venkateswara Rao on the file of I Additional Junior Civil Judge

Court, Eluru for permanent injunction and the same was decreed and against the said Judgment and Decree, Sowbhagyamma and Siva Reddy Venkateswara Rao filed appeal in A.S.No.203/2004 on the file of II Additional District Judge, Eluru and the said appeal was also dismissed and to prove the above said ocular evidence,

DW.1 got exhibited Ex.B.2 certified copy of Judgment and Decree in

O.S.No.373/1990 on the file of I Additional Junior Civil Judge, Eluru and certified

copy of Decree in O.S.No.373/1990 as Ex.B.13 and also certified copy of Judgment in O.S.No.381/2001 on the file of I Additional Junior Civil Judge, Eluru as Ex.B.18 and certified copy of Judgment and Decree in A.S.No.203/2004 on the file of II

Additional District Judge, Eluru as Ex.B.19 and certified copy of Judgment and

Decree in A.S.No.141/1999 on the file of Principal District Judge, Eluru as Ex.B.20.

viii) Admittedly as per the case of the plaintiff, the plaintiff got the plaint schedule property from her maternal grand-mother Sowbhagyamma under a Will dtd.08.08.2005, which is marked as Ex.A.1 and the said Sowbhagyamma got the same from his brother Siva Reddy Venkateswara Rao by way of a registered settlement deed dtd.30.01.2001, which is marked as Ex.A.2 and in Ex.A.2 the executant of it stated that he got it by way of succession and it is his ancestral 8 . property. Admittedly, the defendant is the grand-son of the senior paternal uncle of

Sivareddy Venkateswara Rao.

ix) The plaint schedule property is said to be encroached by the defendant of an extent of 40 sq.yds and raised a compound wall shown as EF. On perusal of the plaint plan, this Court has not found the marking of ‘EF’ compound wall.

x) On perusal of Ex.A.1-Will-dtd.08.08.2005 executed by Ventrapragada

Sowbhagyamma in favour of the plaintiff herein, it seems that the property bequeathed is of an extent of 194 sq.yds of site and thatched house therein in

T.S.Nos.1190 and 1191, western street, Eluru. Ex.A.2 is a link document to Ex.A.1 and Ex.A.2-dtd.30.01.2001 discloses that the said settlement deed is executed by

Sivareddy Venkateswara Rao in favour of Ventrapragada Sowbhagyamma settling 194 sq.yds of site and thatched house therein in T.S.Nos.1190 and 1191, western street, Eluru. It is recited in Ex.A2 as to flow of title that he got it from his father, who enjoyed the same during his life time.

xi) Since the suit is filed by the plaintiff for delivery of the plaint schedule property and for mandatory injunction of removal of compound wall and since the defendant disputed the title of the plaintiff and title was already decided in partition suit, it is for the plaintiff to prove that she the absolute owner of the plaint schedule property.

xii) On perusal of Ex.B2 certified copy of the Judgment in

O.S.No.373/1990 on the file of the I Additional Junior Civil Judge’s Court, Eluru

proves the entire defence of the defendant and this Judgment would suffice to put an end to the litigation. The suit in O.S.No.373/1990 was filed by Siva Reddy

Venkateswara Rao against the defendant herein and also against 8 others for partition of 194 square yards of site in T.S.Nos.1190 and 1191 in ward No.2 of 9 . Eluru Municipality into two equal shares and the said suit was dismissed with costs on 24.02.1999 observing that “it cannot be said that the property in T.S.No.1191 is the ancestral property and the plaintiff is entitled to a share in it” and also observed that “the plaintiff could not produce any reliable evidence to show that the property in T.S.No.1190 is his ancestral property” and also held that the suit schedule property is not joint family property of the plaintiff and D.1 to D.4. In the said Judgment, it was also observed that the plaintiff therein is in possession and enjoyment of 72 square yards of site in

T.S.No.1190 and finally dismissed the suit. The plaint schedule property is nothing but part and parcel of the subject property in O.S.No.373/1990 and that too the appeal filed against him the said Judgment and Decree was also dismissed in

A.S.No.141/1991 and there is no second appeal against the said Judgment and

Decree and as such the Judgment in O.S.No.373/1990 became final and under the said Judgment Siva Reddy Venkateswara Rao has only 72 square yards of site in

T.S.No.1190 and in that view of the matter Siva Reddy Venkateswara Rao had no right to execute Ex.A.2 for an extent of 194 square yards of site in T.S.Nos.1190 and 1191 of Eluru and as such Sowbhagyamma had no right to execute Ex.A.1 for the said extent of 194 square yards of site.

xiii) When the title had already been decided in O.S.No.373/1990 by the file of I Additional Junior Civil Judge, Eluru to the effect that an extent of 194 square yards in T.S.No.1190 and 1191 in Western street, Eluru Municipality is not the joint family property and the defendants 5 to 9 and their parents have perfected their title by adverse possession as they have been residing more than 50 years in the property in the said suit and Siva Reddy Venkateswara Rao is in possession and enjoyment of only 72 square yards of site and that appeal in 10 .

A.S.No.141/1999 was also dismissed and since the plaintiff said to have got the

property from Sowbhagyamma, who got the same from Siva Reddy Venkateswara

Rao, the Judgment and Decree in O.S.No.373/1990 is binding on the plaintiff also and as such the doctrine of Res Judicata is applicable to the case on hand.

xiv) Another added dimension to come to that conclusion is that the defendant has projected the certified copy of judgment and decree in

O.S.No.381of 2001 on the file of I Additional Junior Civil Judge Court, Eluru, which

is marked as Ex.B.18 and the said suit was filed by the defendant herein and his brothers against Sowbhagyamma and Siva Reddy Venkateswara Rao for permanent injunction in respect of the property to an extent of 294 sq.yds of site in

T.S.Nos.1190, 1191 and 1192 and after full trial, the said suit was decreed on 13.10.2003 and against the said judgment and decree the defendants preferred appeal in A.S.No.203/2004 on the file of II Additional District Judge, Eluru and the appeal was dismissed and no second appeal was preferred by the defendants therein and as such the judgment and decree in O.S.No.381 of 2001 has become final and in the said judgment, it was observed that the defendants therein are in possession and enjoyment of 72 sq.yds only and the plaintiffs therein have been in possession and enjoyment of 294 sq.yds of site in T.S.Nos.1190, 1191 and 1192.

In that view of the matter, this court is unable to know when the plaintiff herein entered into the possession and enjoyment of 194 sq.yds of site in T.S.Nos.1190 and 1191 of Eluru and a conjoint reading of the above said judgments in a gamut, it seems that after determining the title of the parties in O.S.No.373 of 1990 and after unsuccessful in appeal also, again Siva Reddy Venkateswara Rao started litigation by creating Ex.A.2 settlement deed even though he had no title over the entire extent of 194 square yards of site and again creating litigation by creating

Will under Ex.A.1 and filing this suit.

11 . xv) Coming to the aspect of ocular evidence -

To prove the case of the plaintiff, the plaintiff examined herself as PW.1, who filed her affidavit in lieu of her examination-in-chief wherein she reiterated her plaint pleadings and as such examination-in-chief of P.W.1 is nothing but replica of the plaint. In addition to that, she exhibited Exs.A.1 to A.3. Exs.A.1 and A.2 have already been discussed supra. Ex.A.3 is the death certificate of Ventrapragada

Sowbhagyamma and she died on 23.8.2012 and there is no dispute to that effect.

xvi) The plaintiff also examined one of the attestors of Ex.A.1 Will as

PW.2, who testified that the Will was executed in his presence and in the presence of S.Venkateswara Rao and Veeranki Venkateswara Rao and the said Will was executed by Swobhagyamma and the same was prepared by Veeranki

Venkateswararao. He further testified that after scribing the Will, the scribe read over the contents and she under stood the same, V.Sowbhagyamma put her thumb mark on the Will in his presence. He further testified that S.Venkateswara Rao and himself put signatures as attestors and he signed as 2nd attestor. In his cross examination, it is elicited that by the time of the execution of the Will, the Will was already prepared and as he was not present at the time of preparation of the Will, he would not be in a position to know, who were present with Soubhagyamma and by the time of seeing the Will by him, already thumb impression was affixed. The said elicitation would suffice to scatter the entire case of the plaintiff in regard to

Ex.A.2 Will. As per the evidence of PW.2 in his examination-in-chief, he testified that in his presence, Sowbhagyamma executed a Will and affixed her thumb mark on the Will in his presence whereas in his cross examination, it is elicited that by the time of seeing the Will by him, already thumb impression was affixed. As per the above said evidence, the Will was not executed in the presence of PW.2 and as such the evidence of PW.2 does not come in aid of the plaintiff to prove Ex.A.1

Will.

12 . xvii) In her cross examination, PW.1 testified that she got the plaint schedule property from her paternal grand-mother Sowbhagyamma. She further testified that she does not know the plaint schedule property is only 70 square yards of site but not as mentioned in the plaint schedule property as well as in the

Will under Ex.A.1. She further testified that she does not know how

Sowbhagyamma got the plaint schedule property. When the suit is filed by the plaintiff for recovery of the plaint schedule property and also for mandatory injunction, it is for her to plead and prove that she is the absolute owner of the same and also she has to prove the flow of title to her but she stated that she does not know how Sowbhagyamma got the plaint schedule property, which cannot be expected from PW.1. She further testified that she does not know whether the plaint schedule property belonged to the said four persons i.e., the defendant and his brothers. She has not denied the plaint schedule property does not belong to the said persons but she stated that she does not know whether the said schedule property belonged to the said four persons i.e., the defendant and his brothers. She further stated that she does not know whether Siva Reddy

Venkateswara Rao gave evidence in O.S.No.373/1990 that he has only 70 square yards of site. On perusal of Ex.B.5 certified copy of deposition of Siva Reddy

Venkateswara Rao, it seems that it is not at all elicited that he has only 70 square yards of site and as such the above said suggestion has no legal substance. But he has deposed that his father Venkataratnam did not acquire any properties and his father also got no shares in the ancestral property. When the father of Siva Reddy

Venkateswara Rao did not acquire any properties and also got no share in the ancestral property, the very recital in Ex.A.2 that he succeeded the property from his father loses it legal sanctity.

xviii) The defendant examined himself as DW.1, who filed his affidavit in lieu of his examination-in-chief wherein he reiterated the written statement 13 . pleadings. In addition to that, he exhibited in all Exs.B.1 to B.20. Ex.B.1 is the certified copy of registered settlement deed dated 30.1.2001 executed by the 2nd defendant in O.S.No.381/2001 in favour of the 1st defendant, Ex.B.2 is the certified copy of Judgment in O.S.No.373/1990 on the file of I Additional Junior Civil Judge,

Eluru dated 24.2.1999 filed by S.Venkateswara Rao, Ex.B.3 is the certified copy of notice got issued by Ch.Koteswara Rao through his advocate dated 25.8.1983,

Ex.B.4 is the certified copy of commissioner report along with sketch in

O.S.No.373/1990, which has already been discussed supra. Ex.B.5 is the certified

copy of deposition of PW.1 in O.S.No.373/1990, which has already been discussed supra. Exs.B.6 to B.12 are the certified copies of the property tax receipts. These property tax receipts show that the defendant is in possession and enjoyment of the property but they do not reveal the extent of the property. Ex.B.13 is the certified copy of Decree in O.S.No.373/1990, which has been discussed supra.

Ex.B.14 is the certified copy of Judgment in O.S.No.176/2070 dated 31.5.1971.

Neither the plaintiff nor the persons through whom she said to have got the property under ExA.1 are parties to the said suit and as such it does not play much role in the suit on hand. Ex.B.15 is the certified copy of registered sale deed executed by Siva Reddy Ramayya, Siva Reddy Venkataratnam in favour of Siva

Reddy Bhupala Rayudu dated 20.11.1916. Admittedly, there is no dispute in regard to execution of the original of Ex.B.15 and as such it does not play any role.

Ex.B.16 is the certified copy of registered settlement deed executed by Siva Reddy

Ramayya in favour of the defendant’s mother dated 22.4.1941, Ex.B.17 is the certified copy of extract relating to the death of Siva Reddy Bhupala Rayudu issued by Eluru Municipal Corporation dated 19.11.2002, Ex.B.18 is the certified copy of

Judgment in O.S.No.381/2001 on the file of I Additional Junior Civil Judge, Eluru,

Ex.B.19 is the certified copy of Judgment and Decree in A.S.No.203/2004 on the file of II Additional District Judge, Eluru, Ex.B.20 is the certified copy of Judgment 14 . and Decree copy in A.S.No.141/1999 on the file of Principal District Judge, Eluru.

Nothing worthwhile material has been elicited from the cross examination of DW.1 except putting suggestions by learned counsel for the plaintiff and denials to that effect by PW.1.

xix) In the light of the above discussion, this Court has come to an indomitable conclusion that the plaintiff has miserably failed to prove that she is entitled for recovery of the plaint schedule property and thereby she is not entitled to the relief of mandatory injunction and that too the principle of Res Judicata is applicable to the case on hand. Hence, these issues are answered accordingly against the plaintiff.

9) In the result, the suit is dismissed with costs to the defendant.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by me

in the open Court this, the 22nd day of March, 2021.

CH. VENKATA NAGA SRINIVASA RAO

Additional Senior Civil Judge,

Eluru.

Appendix of Evidence

Witnesses examined

For Plaintiff : For Defendant:

PW.1:Velaga Pushpalatha DW.1:Ch.Dhananjaya Rao

PW.2:S.Kantha Rao

Documents Marked

For Plaintiff :

Ex.A.1:Register Will dated 8.8.2005 executed by V.Sowbhagyamma in favour of the plaintiff

Ex.A.2:Registered Settlement Deed dated 30.1.2001 stood in the name V.Sowbhagyamma executed by S.Venkateswara Rao @ Venkateswarlu

Ex.A.3:Death Extract of V.Sowbhagyamma

For Defendant :

Ex.B.1:Certified copy of registered settlement deed dated 30.1.2001 executed by the 2nd defendant in O.S.No.381/2001 in favour of the 1st defendant

Ex.B.2:Certified copy of Judgment in O.S.No.373/1990 on the file of I Additional Junior Civil Judge, Eluru dated 24.2.1999 filed by S.Venkateswara Rao 15 .

Ex.B.3:Certified copy of notice got issued by Ch.Koteswara Rao through his advocate dated 25.8.1983

Ex.B.4:Certified copy of commission report along with sketch in O.S.No.373/1990

Ex.B.5:Certified copy of deposition of PW.1 in O.S.No.373/1990

Ex.B.6:Certified copy of property tax receipts for schedule property

Ex.B.7:Certified copy of property tax receipts for schedule property

Ex.B.8:Certified copy of property tax receipts for schedule property

Ex.B.9:Certified copy of property tax receipt

Ex.B.10:Certified copy of property tax receipt

Ex.B.11:Certified copy of property tax receipt

Ex.B.12:Certified copy of property tax receipt

Ex.B.13:Certified copy of Decree in O.S.No.373/1990

Ex.B.14:Certified copy of Judgment in O.S.No.176/2070 dated 31.5.1971

Ex.B.15:Certified copy of registered sale deed executed by Siva Reddy Ramayya, Siva Reddy Venkataratnam in favour of Siva Reddy Bhupala Rayudu dated 20.11.1916

Ex.B.16:Certified copy of registered settlement deed executed by Siva Reddy Ramayya in favour of the defendant’s mother dated 22.4.1941

Ex.B.17:Certified copy of extract relating to the death of Siva Reddy Bhupala Rayudu issued by Eluru Municipal Corporation dated 19.11.2002

Ex.B.18:Certified copy of Judgment in O.S.No.381/2001 on the file of I Additional Junior Civil Judge, Eluru

Ex.B.19:Certified copy of Judgment and Decree in A.S.No.203/2004 on the file of II Additional District Judge, Eluru

Ex.B.20:Certified copy of Judgment and Decree copy in A.S.No.141/1999 on the file of Principal District Judge, Eluru

ILD/-CHVNSR ASCJ

Eluru.

1

IN THE COURT OF ADDITIONAL ASSISTANT SESSIONS JUDGE,

ELURU.

Present: Sri Ch.Venkata Naga Srinivasa Rao

Additional Assistant Sessions Judge,

Eluru.

Monday, this the 28th day of January, 2019.

SESSIONS CASE NO.182/2017

Nameofthe:State: Sub Inspector of Police, Eluru Rural Police complainant Station.

Name of the Accused:DanthukurthiNageswararao@Nagu, and particularsS/o.Venkateswararao, Aged 45 years, Nayi Brahmin, near Anjaneyaswami temple, Auto driver, Chodimella village, Eluru mandal. ChargeUnder Section 307 IPC. Plea of the accused:Pleaded not guilty Finding of the judge:Found not guilty Sentence or Order:In the result, Accused is acquitted under Section 235(1) of Cr.P.C of the offence under Section 307 IPC. Further, the surety bonds of surety persons and bail bonds of Accused shall remain in force for a period of six months and shall stand cancelled after expiry of six month period as contemplated under Section 437(A) Cr.P.C. The MO.1 shall be destroyed after expiry of appeal time.

This case came before the Court on 22.01.2019 for final hearing in the presence of Additional Public Prosecutor for the State; and of Sri J.V.Ramanarao,Advocate for the Accused and after hearing both sides and after perusing the material on record, having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

The Sub Inspector of Police, Eluru Rural Police Station charge sheeted the accused for the offence under Section 307 IPC in Crime

No.235/2014 of Eluru Rural Police Station.

2)The brief averments of the charge sheet are as follows:

On 26.8.2014, at about 1.30 pm, when Chavali Sreeramachandra

Murthy (LW1) is taking lunch at his house, the accused came to his house with a bag and penaka kathi and requested him to allow him to cut maredu patri and maredu kayalu from the tree situated in Sivalayam 2 temple and Chavali Sreeramachandra Murthy (LW1) allowed him to cut them. But at that time, the accused with an intention to kill Chavali

Sreeramachandra Murthy (LW1), for the dispute in between them which is known to them only, went into the back side of Chavali

Sreeramachandra Murthy (LW1) and hacked him on his neck with penaka kathi. At that time, Chavali Sreeramachandra Murthy (LW1) caught hold the knife with his left hand and raised up, the accused forcibly pulled the knife from the hands of Chavali Sreeramachandra Murthy (LW1), on that,

Chavali Sreeramachandra Murthy (LW1) sustained bleeding injury on his left hand little finger. Again the accused hacked Chavali

Sreeramachandra Murthy (LW1) on his right forearm, palm, right shoulder and chest and Chavali Sreeramachandra Murthy (LW1) sustained multiple bleeding injuries. When Chavali Sreeramachandra

Murthy (LW1) raised cries, the neighbours gathered there and accused ran away from that place. Later, Chavali Sreeramachandra Murthy (LW1) was shifted to Government hospital, Eluru, for treatment. Basing on the hospital intimation and statement of Chavali Sreeramachandra Murthy (LW1) a case in Cr.No.235/2014 under Section 307 IPC was registered at

Eluru Rural police station on 26.8.2014 by Sub Inspector of Police (LW.15) and investigated by him and Sub Inspector of Police (LW.15) arrested the accused on 26.8.2014 and seized the weapon. After completion of investigation, SI of Police filed charge sheet. Hence, the charge sheet.

3)The learned Special Judicial Magistrate of I Class (Excise),

Eluru took cognizance of the case for the offence under Section 307 IPC against the accused.

4)After issuance of summons to the accused and after appearance of the accused, copies of the documents were furnished to 3 the accused as required under Section 207 Cr.P.C., and since the offence under Section 307 IPC, is exclusively triable by Sessions Court, the said case was committed to the Honourable District and Sessions Court, West

Godavari District at Eluru and the same was made over to this Court for trial.

5)After receipt of the case, this Court issued summons to

Accused and on his appearance before this Court, he engaged his

Counsel and upon perusing the material on record and after having heard both sides, charge under Section 307 IPC was framed against

Accused. The charge was read over and explained to the accused in

Telugu, for which, he pleaded not guilty and claimed to be tried.

6)During the course of trial, the prosecution examined PWs.1 to 10 and got marked Exs.P1 to P7 apart from MO.1.

7)After completion of the prosecution side evidence, this Court examined the accused under section 313 Cr.P.C., as to the incriminating material appearing against him in the evidences of prosecution witnesses, for which, the accused denied the same and pleaded false implication and reported no defence evidence.

8)On the strength of the above, the point to be determined is:

“Whether prosecution has proved its case against the

accused for the offence u/Sec.307 IPC beyond reasonable

doubt?”

9) Heard both sides.

10) POINT:

i)The learned Public Prosecutor has contended that on 26.8.2014 at 1.30 pm, the accused came and asked P.w.1 to cut maredu patri and maredu kayalu and the accused was permitted, but the accused hacked PW.1 and caused injuries as reflected in Ex.P2 wound 4 certificate and the evidence of PW.1 is consistent through out and the same is well proved by the medical evidence under Ex.P2 given by P.W.7 and the said injuries are caused by the accused only to kill P.W.1 and prayed this Court to convict the accused for the offence under Section 307IPC.

ii)On the other hand, the learned counsel for the accused has contended that PW.1 has not deposed any motive for the alleged incident and that too no independent witness testified that PW.1 was caused injuries by the accused and the evidence of PW.1 is not supported by any independent witness and that too P.W.1 stated in his cross-examination that he did not observe the person who caused injuries and the same is sufficient to acquit the accused and prayed this

Court to acquit the accused.

iii)The essential ingredients required to prove offence under

Section 307 IPC by the prosecution against the accused are:

1. that the death of P.W.1 was attempted on 26.8.2014 at about 01.30 pm at Sivalayam temple, Chodimella village, Eluru; and

2. that such death was attempted to be caused by or in consequence of the act of the accused.

iv)To bring home guilt of the accused for the offence Under

Section 307 IPC against the accused, the prosecution in all examined

PWs.1 to 10 and exhibited Exs.P1 to P7.

v)According to the case of the prosecution, PW.1 is the injured and informant, PWs.2 to 6, 8 are the eye witnesses, PW.7 is Doctor, PW.9 is one of the mediators and PW.10 is the Investigation Officer.

vi)PW. 1 testified that on 26.8.2014 at about 1.30 pm, he came to the temple and while he was taking lunch, the accused came to the temple, asked him about his arrival at that time to the temple, for which, the accused stated that he needs maredu patri and maredu kayalu and 5 by taking lunch, he stated him to cut maredu patri and maredu kayalu.

He further testified that at that time the accused was holding a bag also, and came behind him and hacked on the left of the back side of his neck with penaka kathi; that immediately, he caught hold the knife and hand of the accused on his neck itself, with an intention to prevent further hacking but the accused pulled the knife and caused injury on the left palm and while he was trying to beat him, he put his right hand and the accused caused injury with the knife on his middle finger and also index finger and also on the right forearm and also hacked him on the right side of his chest from shoulder and he sustained severe injuries. He further testified that he raised hue and cry and Bahina Rangarao (LW.7),

Girijala Rajeswari (LW.9), came to him and covered with clothes on his injuries. He further testified that immediately after hacking, the accused ran away. He has further testified that Chavali Lakshmi Sastry (LW.2) and

Vadapalli Venkateswararao (LW.9) came to the scene of offence and

Vadapalli Venkateswarao made phone call to his brother Lakshmi Sastry and informed that he was hacked and he was shifted to Government

Hospital, Eluru where he gave statement to the Police and the statement is marked as Ex.P.1. He further testified that there are no differences or disputes between him and the accused. It is elicited from the cross- examination of P.W.1 that he did not observe the person, who caused injuries to him. The said part of elicitation would suffice to disbelieve the evidence of P.W.1 agianst the accused that the accused hacked him with

M.O.1.

vii)PW.10 stated in his cross examination that he did not lift any blood stained earth from the alleged scene of offence and no explanation has been offered by PW.10 as to what prevented him from 6 seizing the blood stained clothes of PW.1. He further denied the suggestion that no incident took place in Chodimella village viii)PW.2 who testified that Vadapalli Venkateswararao(LW.3) made phone call to him and informed him that his brother was hacked by the accused. As per the evidence of PW.2 it seems that he is not the eye witness to the alleged incident and his evidence is only hearsay and helpful only as to the presence of injuries on PW.1.

ix)PW.3 also testified that while he was taking lunch at 1.30 pm after returning from agricultural field, he heard cries from outside; that he came out and witnessed PW.1 was coming from the temple with bleeding injuries. The evidence of P.W.3 itself manifestly clear that he is not the eye witness to the alleged incident and his evidence only proves the presence of injuries on the body of P.W.1 only and as such his evidence against the accused can be discarded.

x)PW.4 also testified that he heard hue and cry of PW.1; that immediately he came out and witnessed that the accused was hacking with the knife and immediately, he jumped wall at Sivalayam temple and saw the accused running away; that blood was oozing from the injuries of PW.1; that immediately he brought P.W.1 out of the temple by keeping towels and other clothes on the injuries of Pw.1 and he found cut injury on the left back side of neck and also on the left palm and also little finger and also on the right forearm and also on the right chest from the shoulder. In his cross examination, he stated that he did not state before the police that he witnessed the accused of accused hacking PW.1 with knife and immediately he jumped wall at Sivalayam temple and on seeking him the accused ran away. P.w.10 in his cross-exmaination stated that P.W.4 did not state before him as above. A combined reading of the testimonies of P.W.4 and P.W.10, it seems that the evidence of 7

P.W.4 that he witnessed the incident is only a developed one and nothing else and no legal weightage can be given to the said part of evidence.

xi)PW.5 deposed that he heard that the accused hacked PW.1 and PW.1 was shifted to hospital in 108 ambulance. The said evidence shows that he is not the eye witness to the alleged incident and it is only hearsay, which has no value in the eye of law and the such the evidence of P.W.5 is discarded. The evidence of P.W.6 also runs on the similar lines as that of P.W.5 and as such legal credence can be attached to it.

xii)PW.7 testified that he issued Ex.P2 wound certificate of PW.1.

in his cross examination he stated that except injury No.1, the other injuries are classified as simple in nature and the Radiology opinion is required in regard to grievous injuries. Admittedly, there is no dispute in regard to the presence of injuries on P.W.1.

xiii)PW.8 testified that while he was going to Gopannapalem, one Nageswararao made phone call to him and informed him that his uncle Sri Rama Chandra Murthy was hacked; that immediately he proceeded to Sivalayam temple and found PW.1 with blood injuries and also found ambulance and shifted PW.1 to Government hospital. His evidence is also not helpful to the case of the prosecution as against the accused.

xiv)PW.9 testified that on 26.8.2014 at about 5.00 pm, while he was talking with VRO, he received phone call from Eluru rural police station and asked him to come to sivalayam temple to observe scene of offence; that he proceeded to sivalayam temple in Chodimella village and SI also reached there; that they found a blood stained knife in the temple premises; that the SI enquired with three persons among the public, who stated that the accused hacked poojari; that the SI of Police 8 seized the said knife under the cover of scene observation report and he signed in the said scene observation report and the scene observation report is marked as Ex.P3. As per the above said evidence, SI of Police seized MO.1 and scene observation report was prepared whereas the evidence of PW.10 Investigating officer he found the weapon used for commission of offence and he seized it in the presence of mediators under the cover of mediatormana; that he affixed identity slips on the weapon also containing the signatures of the same mediators and in such circumstances and it is not at all the evidence of P.w.9 that he signed on the identity slip and it is also not his evidence that identity slips were affixed on M.O.1 and in such circumstances no legal weightage can be attached to the evidence of PW.9. In view of the above discussion, this Court has come to conclusion that the prosecution has failed to prove its case against the accused that the accused hacked him with an intention to kill him and thereby the accused is entitled to acquittal. Hence, the point is answered accordingly.

11)In the result, Accused is acquitted under Section 235(1) of

Cr.P.C of the offence under Section 307 IPC. Further, the surety bonds of surety persons and bail bonds of Accused shall remain in force for a period of six months and shall stand cancelled after expiry of six month period as contemplated under Section 437(A) Cr.P.C. The MO.1 shall be destroyed after expiry of appeal time.

Dictated to the Stenographer Grade III, transcribed by him,

corrected and pronounced by me in the open Court this the 28th day of January, 2019.

Additional Assistant Sessions

Judge,

Eluru.

Appendix of Evidence

Witnesses examined

9

For Prosecution: For Defence:

PW.1:Ch.SriramachandramurthyNone. PW.2:Ch.Lakshmi Sastry PW.3:V.Venkateswararao PW.4:B.Ranga Pw.5:Ch.Rajeswararao PW.6:G.Rajeswari PW.7:V.Yogendrababu PW.8:Ch.S.Murthy PW.9:T.Ramesh Kumar PW.10:G.Phanindar

Documents Marked

For Prosecution: For Defence: Nil

Ex.P1:Statement kof PW.1 Ex.P2:Wound certifice Ex.P3:Scene observation report Ex.P4:Hospital intimation Ex.P5:FIR Ex.P6:Rough sketc Ex.P7:RFSL report

Material Objects Marked. MO.1:Pota Kathi

ASSJ

Eluru.

10

TABULAR FORM ANNEXED TO THE JUDGMENT IN S.C.No.182/2017 ON THE FILE OF ADDITIONAL ASSISTANT SESSIONS JUDGE, ELURU UNDER RULE 354 OF THE CRIMINAL RULES OF PRACTICE.

1.Sessions Case No. and:S.C.No:182/2017 and P.R.C.No.5/2015 of P.R.C.No. with name ofSpecial Judicial Magistrate of I Class the committal Court(Excise), Eluru

2.Name of the Police :EluruRuralPoliceStationand Station and Crime No.Cr.No.235/2014

3.Description of the :Danthukurthi Nageswararao @ Nagu, Accused:S/o.Venkateswararao, Aged 45 years, Nayi Brahmin, near Anjaneyaswami temple, Auto driver, Chodimella village, Eluru mandal.

4.Date of Offence:26.08.2014 Complaint:26.08.2014 Apprehension:26.08.2014 Release on bail:05.01.2015 Committal order:08.04.2015 Commencement of :08.01.2019 trial Close of Trial:22.01.2019 Sentence or Order:28.01.2019

5.Explanation for theNo avoidable delay delay ORDER: In the result, Accused is acquitted under Section 235(1) of Cr.P.C of the offence under Section 307 IPC. Further, the surety bonds of surety persons and bail bonds of Accused shall remain in force for a period of six months and shall stand cancelled after expiry of six month period as contemplated under Section 437(A) Cr.P.C. The MO.1 shall be destroyed after expiry of appeal time.

Addl. Assistant Sessions Judge, Eluru. Copies submitted to:

1. The Hon’ble Registrar (Judl.) High Court of Judicature at Hyderabad for the State of Telengana and the State of Andhra Pradesh, Hyderabad (through C.D)

2. The Honorable District and Sessions Judge, West Godavari, Eluru.

3. The Hon’ble Director of Prosecution, Andhra Pradesh, Hyderabad. Copies to:

1. The Special Judicial Magistrate of I Class(Excise), Eluru.

2. The Addl. P.P., Additional Assistant Sessions Judge’s Court, Eluru.

3. The Superintendent of Police, West Godavari, Eluru.

1

IN THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE, ELURU.

Present: Sri Ch.Venkata Naga Srinivasa Rao

Additional Senior Civil Judge,

Eluru. Wednesday, the 30th day of January, 2019

O.S.No.73 OF 2016

Between

Kadipuri Hari Prasad, S/o.late Satyanarayana, Aged 37 years, Male, Hindu, Business, Pandurangapet, D.No.21-3-13, 2nd Division, Eluru-2. EJCJCJ … Plaintiff AND Donthamsetti Tagore, S/o.Sankararao, Aged 40 years, Male, Hindu, Business, Opposite to Litter Star Convent, 7th Division, D.No.7C-8/1-3, Eastern street, Eluru-1, EJCJC. … Defendant

This suit came before this Court on 22.01.2019 for final hearing in the presence of Sri N.V.Satyanarayana, Advocate for the plaintiff and Sri M.Vasudevudu, Advocate for the defendant and having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

This suit is filed for recovery of Rs.5,24,160/- along with subsequent interest @ of 24% per annum on the principal amount and award costs of the suit.

2)The brief averments of the plaint are as follows:

On 20-04-2014, the defendant borrowed Rs.3,60,000/- from the plaintiff for his family expenses and to discharge his sundry debts and executed a pronote in favour of plaintiff on the even date agreeing to repay the same with interest @Rs.2/- per hundred per month. On 12.9.2014, the defendant issued a cheque bearing No.290295 for

Rs.2,70,000/- drawn on ICICI Bank, Eluru towards part satisfaction of the debt and the same was presented by the plaintiff into his bank i.e.,Overseas Bank, Eluru and the same was returned with a memo dated 13.9.2014 as “Insufficient Funds” and thereafter, the plaintiff got issued 2 a legal notice on 20.9.2014 and the same was received and kept quiet.

The plaintiff already filed a private complaint before the Judicial 1st Class

Magistrate-Cum-Principal Junior Civil Judge’s Court, Eluru being

C.C.No.322/2015 for the offence under Section 138 of Negotiable

Instrument Act. Hence, the suit.

3)The defendant filed his written statement denying the plaint pleadings in toto and inter alia contending that he never borrowed any amount from the plaintiff and never executed any pronote in favour of the plaintiff. The defendant did not issue any cheque and he does not aware of the alleged attestors and scribe of the alleged pronote. The defendant subsequently came to know that the plaintiff, attestors and scribe are followers of the Maram Hanumantharao. No consideration was passed under the alleged pronote and the plaintiff is not having such capacity to lend such huge amount and he has no necessity to borrow such amount. The pronote is a fabricated document and the said document was brought into existence by forging the columns of the pronote for wrongful gain to them with the help of attestors and scribe by the active collusion of Maram Hanumantharao, who obtained four empty signed pronotes and four signed empty cheques from the defendant and his wife Dontham Setti Suhasini and the said Maram

Hanumantharao filed three criminal cases in C.C.No.210/2015,

C.C.No.322/2015 and C.C.No.324/2015 against the defendant and his wife Suhasini by forging the empty columns of cheque and pronote through the plaintiff and Reddy Jagadeswararao for lakhs of rupees for getting wrongful gain to them and prayed this Court to dismiss the suit.

4)On the strength of the above pleadings, the following issues are settled for trial on 21.10.2016:

3 1.Whether the suit pronote dated 20.4.2014 is true, valid and duly executed by the defendant and not supported by consideration?

2.Whether the plaintiff is entitled for suit claim as prayed for?

3.To what relief?

5)During the course of trial, on behalf of the plaintiff, PWs.1 to 3 are examined and Exs.A1 to A.8 are marked and on behalf of the defendant, the defendant examined himself as DW.1 and Exs.B.1 to B.12 are marked.

6)Heard both the sides.

7)Issue No.1:

i)The learned counsel for plaintiff has contended that the defendant borrowed Rs.3,60,000/- from the plaintiff on 20.04.2014 and executed Ex.A.1 pronote and subsequently on demands, the defendant issued a cheque towards part satisfaction of the amount debt due to the plaintiff and certified copy of the said cheque is marked as Ex.A.2 and the said cheque was returned and as such the plaintiff got issued legal notice on 20.9.2014 but the defendant did not repay the said amount and as such the plaintiff got filed private complaint before the Judicial 1st

Class Magistrate-Cum-Principal Junior Civil Judge’s Court, Eluru; Ex.A.4 is certified copy of cheque return memo dated 13.9.2014 from ICICI Bank,

Eluru, Ex.A.5 is certified copy of memo dated 13.9.2014 issued by Indian

Overseas Bank, Ex.A.6 is certified copy of legal notice dated 20.9.2014 issued by the plaintiff to the defendant, Ex.A.7 is certified copy of postal acknowledgement from the defendant. He has further contended that to prove the case of the plaintiff, PW.1 also examined the scribe of Ex.A.1 as PW.2 and one of the attestors as PW.3 and prayed this Court to decree the suit.

ii)On the other hand, the learned counsel for the defendant has contended that the defendant has not seen the plaintiff at any point 4 of time, but the plaintiff, attestors of Ex.A.1 are the followers of Maram

Hanumantharao, who obtained four empty signed pronotes and cheques from the defendant and filed cases. He has further contended that the evidences of PWs.1 to 3 are not consistent through out and the plaintiff has no capacity to lend Rs.3,60,000/- and the same is also elicited from the cross examination of PW.1 and no consideration was passed under

Ex.A.1 and prayed this Court to dismiss the suit.

iii)To substantiate the case of the plaintiff, the plaintiff examined himself as PW.1, who filed his affidavit in lieu of his examination-in-chief wherein he reiterated the plaint pleadings and as such examination-of-chief of P.W.1 is nothing but true replica of the plaint. In addition to that, PW.1 exhibited Exs.A.1 to A.7. Ex.A.1 discloses that the defendant borrowed Rs.3,60,000/- from the plaintiff on 20.4.2014 and executed Ex.A.1 pronote and the pronote was attested by

PW.3 and one K.Saibabu and scribed by K.Narayana rao. To prove the ocular evidence of Pw.1 that the defendant issued a cheque towards part payment of the amount due under Ex.A.1 pronote, he got exhibited certified copy of cheque as Ex.A.3 and to prove that the said cheque was returned, he exhibited Ex.A.4-certified copy of cheque return memo.

PW.1, in his cross examination, has stated that he is doing finance business as well as running cool drink shop. He has further stated that the defendant approached him at his finance shop and then the defendant borrowed the amount from him under Ex.A.1 pronote. PW.1 further stated that he pledged gold ornaments and paid consideration of

Rs.3,60,000/- to the defendant under Ex.A.1 and he has no any licence to do finance business and that he has been running finance business with capital Rs.2,00,000/- and that he is not possession of any documentary proof in his hands to show that he held Rs.3,60,000/- in his 5 hands as on the date of Ex.A.1 pronote transaction. P.W.1 further stated that both the attestors put their signatures in English on Ex.A.1 suit pronote. On perusal of Ex.A.1, it seems that the 1st attestor namely

K.Saibabu subscribed his signature in Telugu but the surname is in english as “T” and other attestor subscribed his signature in English only.

The said inconsistency cannot be expected from P.W.1.

iv) PW1 further stated in his cross-examination that the defendant himself had taken the attestors Ex.A.1 pronote. One of the attestors of Ex.A.1 pronote was examined as PW.3 and in his cross examination he stated that the plaintiff herein is his friend and for the first time he saw the defendant herein at the time of Ex.A.1 transaction and he has no any acquaintance with the defendant prior to Ex.A.1 transaction. The above said evidence of PW.3 in the cross examination shows that PW.3 had no acquaintance with the defendant prior to Ex.A.1 pronote transaction and he has seen the defendant only at the time of transaction and as such the question of bringing P.W.3 by the defendant to attest the pronote is highly unacceptable, which creates doubt in the mind of the court as to the veracity of the testimonies of P.Ws.1 and 3 and which probablises the defence taken by the defendant that no transaction took place and he does not know the plaintiff and the attestors of it.

v)PW.1 in his cross examination stated that on that day Ex.A.1 transaction was occurred in between 3.00 to 4.00 pm whereas PW.3, who is the scribe of Ex.A.1 pronote stated that Ex.A.1 transaction occurred on that day at about 11.30 am and P.W.2 stated that he drafted the contents of Ex.A.1 pronote on that day in between 10.30 am and 11.00 am. This inconsistency goes to the root of the case and it probabalises the defence taken by the defendant that no transaction under Ex.A.1 6 took place between him and the plaintiff. If really the transaction took place, the three persons would not have deposed as above and as such the very transaction Ex.A.1 is doubtful.

vi)PW.1 in his cross examination stated that he paid entire transaction amount to the defendant under Ex.A.1 with denomination of 500 rupee notes and 100 rupee notes whereas PW.3 in his cross examination stated that the plaintiff had paid the consideration amount covered under Ex.A.1 to the defendant herein with denomination of 100/- rupee notes and 500/- rupee notes in his presence and as such it is manifestly clear that even the evidences of PWs.1 and 3 are not inconsistent as to the denomination of the consideration also, which creates doubt in the mind of the Court as to the very transaction and very passing of consideration under Ex.A.1 to the defendant from the plaintiff. If really the amount was passed to P.W.1, the above discrepancy cannot be expected.

vii) PW.1, in his cross examination, stated that he has been running finance business with capital amount of Rs.2,00,000/- and he is not an income tax assessee and he has no any bank account in his name and he is not possession of any documentary proof in his hands to show that he held an amount of Rs.3,60,000/- as on the date of Ex.A.1 pronote transaction. When the defendant has questioned the capacity of the plaintiff in lending such huge amount, it is for the plaintiff to prove the same but the plaintiff has not filed any document that he sold his property and out of it he lent the pronote amount to the defendant but the same lacks, which makes this Court to come to conclusion that the plaintiff has no capacity to lend suit pronote amount and as such the evidences of Pws.1 to 3 are not consistent on material aspects.

7 viii)The defendant examined himself as DW.1, who filed his affidavit in lieu of his examination-in-chief wherein he reiterated the written statement pleadings. In addition to that, D.W.1 exhibited Exs.B.1 to B.12. Ex.B.1 is certified copy of complaint filed by Nadipudi Hari

Prasad against the defendant in C.C.No.322/2015 dated 28.10.2014.

Ex.B.2 is certified copy of pronote said to be executed by the defendant filed by Nadipudi Hari Prasad in C.C.No.322/2015 dated 20.4.2014.

Ex.B.3 is certified copy of alleged cheque filed by Nadipudi Hari Prasad in

C.C.No.322/2015 dated 12.9.2014. Ex.B.4 is certified copy of return memo by the bank dated 13.9.2014. Ex.B.5 is certified copy of complaint filed by Maram Hanumantharao against wife of the defendant in

C.C.No.324/2015 dated 28.10.2014. Ex.B.6 is certified copy of pronote allegedly executed by the wife of the defendant filed by Maram

Hanumantharao in C.C.No.324/2015 dated 18.5.2014. Ex.B.7 is certified copy of alleged cheque said to be issued by the wife of the defendant in favour of Maram Hanumantharao in C.C.No.324/2015 dated 12.9.2014.

Ex.B.8 is certified copy of return memo by the bank dated 13.9.2014.

Ex.B.9 is certified copy of complaint filed by Reddy Jagadeswararao against wife of the defendant in C.C.No.210/2015 dated 28.10.2014.

Ex.B.10 is certified copy of pronote allegedly executed by the wife of the defendant in favour of Reddy Jagadeswararao in C.C.No.210/2015 dated 9.1.2014. Ex.B.11 is certified copy of cheque issued by the wife of the defendant in favour of Reddy Jagadeswararao in C.C.No.210/2015 dated 22.9.2014. Ex.B.12 is certified copy of return memo by the bank dated 23.9.2014. In his cross examination D.W.1 admitted that I town police

Eluru filed a criminal case against him under Section 428 of IPC on the file of II Additional Judicial I Class Magistrate Court, Eluru and in one case he was convicted but succeeded in Appeal. The above said 8 admission is not helpful to the plaintiff and the case on hand based on pronote allegedly executed by the defendant in favour of the plaintiff.

Except putting suggestions in the cross-examination, nothing has been elicited from the cross examination of DW.1.

ix)In view of above discussion, this Court has come to an irresistible conclusion that the plaintiff has miserably failed to prove that that the suit pronote under Ex.A.1 is true, valid and supported by consideration. Hence, this issue is answered accordingly.

8)Issue No.2::

In view of answering issue No.1 against the plaintiff, the plaintiff is not entitled to suit claim and this issue is answered accordingly.

9)In the result, the suit is dismissed with costs to the defendant.

Dictated to the Stenographer Grade III, transcribed by him,

corrected and pronounced by me in the open Court this, the 30th day of January, 2019.

Additional Senior Civil Judge,

Eluru.

Appendix of Evidence

Witnesses examined

For Plaintiff : For Defendant :

PW.1:N.Hari Prasad DW.1:D.S.Tagore PW.2:K.Narayanarao PW.3:N.Krishna

Documents Marked

For Plaintiff :

Ex.A.1:Original pronote dated 20.4.2014 executed by the defendant in favour of the plaintiff

Ex.A.2:Certified copy of complaint under Section 138 of Negotiable Instrument Act filed against the defendant

Ex.A.3:Certified copy of cheque dated 12.9.2014 issued by the defendant to the Plaintiff 9

Ex.A.4:Certified copy of cheque return memo dated 13.9.2014 from ICICI Bank, Eluru Ex.A.5:Certified copy of memo dated 13.9.2014 issued by Indian Overseas Bank

Ex.A.6:Certified copy of legal notice dated 20.9.2014 issued by the plaintiff to the defendant

Ex.A.7:Certified copy of postal acknowledgement from the defendant

Ex.A.8:Certified copy of Registered settlement deed dated 6.7.2010 obtained from District Registrar Office, Eluru

For Defendant:

Ex.B.1:Certified copy of complaint filed by Nadipudi Hari Prasad against him in C.C.No.322/2015 dated 28.10.2014.

Ex.B.2:Certified copy of pronote alleged in his name filed by Nadipudi Hari Prasad in C.C.No.322/2015 dated 20.4.2014.

Ex.B.3:Certified copy of alleged cheque in his name filed by Nadipudi Hari Prasad in C.C.No.322/2015 dated 12.9.2014.

Ex.B.4:Certified copy of return memo by the bank dated 13.9.2014.

Ex.B.5:Certified copy of complaint filed by Maram Hanumantharao against his wife in C.C.No.324/2015 dated 28.10.2014.

Ex.B.6:Certified copy of pronote alleged in his wife filed by Maram Hanumantharao in C.C.No.324/2015 dated 18.5.2014.

Ex.B.7:Certified copy of alleged cheque in his wife filed by Maram Hanumantharao in C.C.No.324/2015 dated 12.9.2014.

Ex.B.8:Certified copy of return memo by the bank dated 13.9.2014.

Ex.B.9:Certified copy of complaint filed by Reddy Jagadeswararao against his wife in C.C.No.210/2015 dated 28.10.2014.

Ex.B.10:Certified copy of pronote alleged in his wife filed by Reddy Jagadeswararao in C.C.No.210/2015 dated 9.1.2014.

Ex.B.11:Certified copy of alleged cheque in his wife filed by Reddy Jagadeswararao in C.C.No.210/2015 dated 22.9.2014.

Ex.B.12:Certified copy of return memo by the bank dated 23.9.2014.

ASCJ

Eluru.

1

IN THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE, ELURU.

Present: Sri Ch.Venkata Naga Srinivasa Rao

Additional Senior Civil Judge,

Eluru. Monday, the 28th day of January, 2019

O.S.No.97 OF 2016

Between

Basu Sambasivarao, S/o.Chalamaiah, Hindu, R/o.Santhi Nagar, Eluru, ESJCJC.

... Plaintiff

AND 1.Thentu Syamalarao, S/o.Sominaidu,Male, Aged 76 years, Hindu, Business, R/o.D.No.26-2/1, Velampeta, Kaikaluru, Kaikaluru mandal.

2.Thentu Seetha Mahalakshmi (Died) 3.Katiki Nagamani, W/o.Raju, Female, Aged 51 years, Stridhan, D.No.14- 60, State Bank Colony, Sanivarapupeta Panchayat, Eluru, Eluru SCJC.

4.Chalumuri Vijaya Kumari, W/o.Prasad (RMP), Female, Aged 49 years, Stridhan, Voduru, Alamuiru mandal, W.G.,Dist., 5.Chukka Syamaladevi, W/o.Vijayababu, Female, Aged 47 years, Stridhan, Kalidindi Road, Near Railway Gate, Kaikaluru, Kaikaluru SCJC.

(Amended as per the order Dated 12.8.2016 in I.A.No.1447/2016)

... Defendants

This suit came before this Court on 25.1.2019 for final hearing in the presence of Sri V.Hari Gopal, Advocate for the plaintiff and Sri B.Krishnarao, Advocate for the defendants 1, 3 to 5; 2nd defendant died; and having stood over for consideration till this day, the Court delivered the following:

JUDGMENT

The suit was initially filed for recovery of Rs.14,92,200/- along with subsequent interest by the plaintiff against the defendants 1 and 2 interest and subsequently in view of death of the 2nd defendant, the defendants 3 to 5 were added and the relief is amended as follows:

“For recovery of Rs.14,92,200/- from the 1st defendant and also against the assets of the 2nd defendant in the hands of the defendants 3 to 5.” 2

2)The brief averments of the amended plaint are as follows:

The 1st defendant is the husband of the 2nd defendant and they jointly borrowed Rs.9,00,000/- from the plaintiff on 7.7.2013 and executed a demand pronote in favour of the plaintiff, agreeing to repay the same with interest at 24% p.a., In spite of demands, the defendants failed to discharge the amount. The plaintiff got issued a legal notice

dated 10.3.2016 through his advocate demanding the defendants to

discharge the suit pronote due debt but the defendants failed to discharge the pronote amount. The 2nd defendant died intestate on 7.6.2016 leaving behind her husband i.e., the 1st defendant and three daughters, who are the defendants 3 to 5 and who succeeded the properties of late Thentu Seethamalakshmi and they are liable to discharge the suit claim. Hence, the suit.

3)The 1st defendant filed his written statement denying the plaint pleadings in toto and inter alia contending that the alleged transaction never occurred and the said pronote is fabricated one and no consideration was passed as alleged in the pliant and the question of demanding repayment never occurred. The defendants borrowed

Rs.2,00,000/- from one K.Ramesh, S/o.Ramarao, r/o.Sanivarapupeta,

Eluru by mortgaging the landed property in the year 2001 dated 9.5.2001 and 10.9.2001 and the said Ramesh is none other than grand- son of 1st defendant’s elder sister. Taking advantage of relationship, the said Ramesh, while registering the above mortgage deed, he also obtained two blank pronotes from the defendants and also forced the defendants to execute the above said mortgage deed for compound interest and the said Ramesh took the signatures of the defendants apart from blank pronotes and also some other blank papers. After 3 execution of the above said mortgage deed, the said K.Ramesh waited for ten years without demanding repayment of mortgage amount until the amount mounted up with compound interest with an intention to grab their property. After ten years at the end of limitation period, the said Ramesh filed a mortgage suit on the file of Additional District

Judge’s Court, Gudivada in O.S.No.5/2011 claiming Rs.16,00,000/- along

with subsequent interest but the said suit was decreed for Rs.5,53,000/- by levying Rs.1/- simple interest. Having disgruntled with the Judgment passed in O.S.No.5/11 of Additional District Judge’s Court, Gudivada, the said Ramesh fabricated the empty pronotes, which were obtained at the time of execution of mortgage deed and filed two money suits one at

Kovvur for Rs.10,00,000/- and another pronote is used in this case, by hiring the plaintiffs. The plaintiff filed false suits to get wrongful gain.

Prior to filling the suits, the said Ramesh demanded extra amount than the decreed amount in Gudivada and also threatened the defendants and as such the defendants paid the total decree amount in

O.S.No.5/2011 of Gudivada Additional District Judge’s Court and released

the property; that the defendants did not agree for the demanded amount and as such the said Ramesh fabricated the empty pronotes in the name of the plaintiff and another person by name Chintamaneni Kasi

Viswanadha Brahmanandam and prayed this Court to dismiss the suit.

4)The 2nd defendant filed a memo adopting the written statement filed by the 1st defendant. After adding the defendants 3 to 5, they filed a memo adopting the written statement filed by the 1st defendant.

5)On the strength of the above pleadings, the following issues were settled for trial on 22.3.2017:

1.Whether the plaintiff is entitled for suit claim as prayed for or not?

4 2.Whether the suit pronote is true and valid and binding on the defendants or not?

3.Whether the suit pronote is created one and fabricated one or not?

4.Whether the suit pronote is supported by consideration or not?

5.To what relief?

6)During course of trial, on behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A1 to A.3 were marked and on behalf of the defendants, no oral evidence was adduced and no documents were marked.

7)Heard the learned counsel for the plaintiff. Neither the defendants nor their counsel are present to advance arguments on behalf of the defendants and as such the arguments on behalf of the defendants is treated as NIL.

8)Issue Nos.1 to 4:

i)All the four issues are taken up together for common discussion and determination to avoid repetition of discussion.

ii)The learned counsel for plaintiff has contended that the defendants 1 and 2 jointly borrowed Rs.9,00,000/- from the plaintiff and executed Ex.A.1 pronote and subsequently failed to discharge the amount; that after filing the suit, the 2nd defendant died and as such the defendants 3 to 5 were added and as such the relief is amended and also sought against the assets of the 2nd defendant in the hands of the defendants 3 to 5. He has further contended that the evidence of Pw.1 is well supporting the case of the plaintiff and that the defendants did not enter into the witness box to substantiate their defence and as such an adverse inference can be drawn against the defendants that their defence is not a believable one and prayed this Court to decree the suit.

5 iii) To substantiate the case of the plaintiff, the plaintiff examined himself as PW.1, who filed his affidavit in lieu of his examination-in-chief wherein he reiterated the plaint pleadings and as such examination-in-chief of P.W.1 is nothing but true replica of the plaint. To prove the transaction took place between the plaintiff and the defendants 1 and 2, P.W.1 exhibited Ex.A.1 pronote and testified that the defendants 1 and 2 jointly borrowed Rs.9,00,000/- from him on 7.7.2013 and executed Ex.A1 promissory note. On perusal of Ex.A.1, it seems that the defendants jointly borrowed Rs.9,00,000/- from the plaintiff and the said transaction was attested by B.Gangadhararao and M.Ramesh, the said M.Ramesh is no other than PW.2, the said pronote said to be written by G.V.Padma Narayana. PWs.1 and 2 in their cross examination are consistent as to the place of execution of pronote at the house of the plaintiff and Ex.A.1 transaction was occurred at his house on that day in between 1.00 pm and 2.00 pm and nothing contra has been elicited to that effect and the entire cross examinations of PWs.1 and 2 are full of suggestions by the learned counsel for the defendants as to the defence taken by them and the same have been denied by PWs.1 and 2. PW.1 denied the suggestion that he does not know whether K.Ramesh, who is son of niece of the 1st defendant obtained mortgage deeds from the first and second defendants herein on obtaining security of landed property belongs to D.1 and D.2 dated 9.5.2001 and 10.9.2001 and he does not know whether the said Ramesh filed the suit against the defendants 1 and 2 herein in O.S.No.5/11 on the file of Additional District Judge’s

Court, Gudivada for recovery of mortgage suit amounts or not and he does not know whether Court passed decree only for Rs.5,30,000/- in the said mortgage deeds by scaling down high rate of interest and that

Ramesh is close relative of the defendants 1 and 2, who played crucial 6 role, but the defendants failed to examine the so called Ramesh to substantiate their defence. Mere putting suggestion and maintaining silence would not suffice to prove the same and it is for the defendants to examine the so called Ramesh to prove that the said Ramesh obtained blank pronotes in the year 2009 itself and got filed this suit through the plaintiff, but the same lacks on the part of the defendants, which makes this Court to come to conclusion that the prontote is not a fabricated one.

iv)PW.1 denied the suggestion that he has willfully altered the year portion in Ex.A.1 pronote from 2003 to 2013 by altering digit “O” into digit “1” and also they inserted digit “1” before digit “3” in the year portion of Ex.A.1 pronote. On perusal of written statemeent pleadings, it seems that it is not at all pleaded by the defendants that the suit pronote is materially altered and as such without their being any pleading, no amount of legal credence can be attached to the said suggestion. Nothing worthwhile material is elicited from the cross examinations of Pws.1 and 2 except putting suggestions by the learned defence counsel to that effect by PWs.1 and 2. Pw.2 denied the suggestion that the 1st defendant herein had been suffering from severe illness since 2010 and the 1st defendant was unable to move from one place to another place and so the 1st defendant was not present at the house of the plaintiff herein on that day and the 1st defendant did not put his signature on Ex.A.1 suit pronote in his presence as stated by him and he has not filed any piece of document before this Court. The 1st defendant herein had been suffering from severe illness since 2010 and the 1st defendant was unable to move from place to another place without their being any medical proof. and the defendants did not enter into the witness box to substantiate their defence evidence3 after filing 7

The consistent evidences of P.Ws.1 and 2 clearly prove that the suit pronote is true, valid and is supported by consideration. The consistent evidences of P.Ws.1 and 2 clearly prove the very passing of consideration. In view of the above discussion, the plaintiff has successfully proved the above but the defendants 1, 3 to 5 did not enter into the witness box to substantiate their defence and as such an adverse inference is drawn against the defendants that the defence taken by the defendants is not a believable. Hence, all these issues are answered accordingly.

v)In view of above discussion, this Court has to an irresistible conclusion that the plaintiff has successfully proved his case that the suit pronote under Ex.A.1 is true, valid and supported by consideration and that the defendant failed to disprove the stand taken by plaintiff or to support his defence and that the plaintiff has also proved that the suit pronote is not a fabricated one and it is true, valid and supported by consideration. Hence, these issue is answered accordingly.

9)In the result, the suit is decreed with costs in favour of the plaintiff and against the 1st defendant personally and against the estate of the 2nd defendant in the hands of the defendants 1, 3 to 5 if any for

Rs.14,92,200/- along with subsequent interest at 12% per annum on the

principal amount of Rs.9,00,000/- from the date of suit till the date of

decree and thereafter at 6% per annum till realization.

Dictated to the Stenographer Grade III, transcribed by him,

corrected and pronounced by me in the open Court this, the 28th day of January, 2019.

Additional Senior Civil Judge,

Eluru.

8

Appendix of Evidence

Witnesses examined

For Plaintiff : For Defendants : NONE

PW.1:B.Sambasivarao PW.2:M.Ramesh

Documents Marked

For Plaintiff :

Ex.A.1:Pronote dt.7.7.2013 executed by the 1st and 2nd defendants in favour of the Plaintiff

Ex.A.2:Office copy of legal notice dt.10.3.2016

Ex.A.3:Postal acknowledgment(2 in number, marked as bunch)

For Defendants: NIL

ASCJ

Eluru.

1

IN THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE, ELURU.

Present: Sri Ch.Venkata Naga Srinivasa Rao

Additional Senior Civil Judge,

Eluru. Friday, the 25th day of January, 2019

O.S.No.371 OF 2017

Between

Tumpati Vijayalakshmi, W/o.Anandarao, Hindu, Female, Aged 45 years, Housewife, R/o.D.No.138-B-5, Powerpet, Eluru. EJCJCJ … Plaintiff

AND Hanumanthu Venkataramana, W/o.Satyanarayana, Hindu, Female, Aged 45 years, Business, R/o.D.No.6-7/2, Near Ushodaya school, Timmapuram village, Dwaraka Tirumala mandal, Bhimadole JCJCJ.

... Defendant

This suit came before this Court on 23.1.2019 for final hearing in the presence of Sri K.Prithvi Raj, Advocate for the plaintiff and Sri T.V.Viswanatham, Advocate for the defendant and having stood over for consideration till this day, the Court delivered the following:

JUDGMENT

This suit is filed for recovery of Rs.7,32,000/- along with subsequent interest @ of 24% per annum on the principal amount and award costs of the suit.

2)The brief averments of the plaint are as follows:

On 18.11.2015, the defendant borrowed Rs.5,00,000/- from the plaintiff for her family welfare and sundry debts and executed pronote in favour of the plaintiff on the even date, agreeing to repay the same with interest @Rs.12% per annum. In spite of demands orally and also issuance of legal notice on 8.9.2017, the defendant refused to receive the said notice and failed to pay the amount. Hence, the suit.

3)The defendant filed her written statement denying the plaint pleadings in toto and inter alia contending that she never executed any pronote in favour of the plaintiff and the same if any be a fabricated 2 document and as such the question of demanding for repayment does not at all. The defendant never refused to receive any notice and no consideration was passed. The plaintiff’s husband is doing lemon commission business at Eluru and the defendant’s husband for some time did lemon business during 2015-2016 and in that connection, the defendant and her husband demanded the plaintiff’s husband to settle the accounts and in that connection, the plaintiff’s husband bore grudge against the defendant and her husband, and created the suit pronote and filed the suit and attached the property in I.A.No.2021/2017 under the impression that the property belongs to the defendant and this

Hon’ble Court allowed claim petition E.A.No.67/2016 in E.P.No.201/2010

in O.S.No.139/2007 filed by HVV Satyanarayana and another holding that the defendant is not the owner of the said property and prayed this

Court to dismiss the suit.

4)On the strength of the above pleadings, the following issues are settled for trial on 14.02.2018:

1.Whether the plaintiff is entitled for suit claim as prayed for or not?

2.Whether the suit pronote is true and valid and binding on the defendant or not?

3.Whether the suit pronote is fabricated one or not?

4.Whether the suit pronote is supported by consideration or not?

5.To what relief?

5)During course of trial, on behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A1 to A.3 were marked and on behalf of the defendant, the defendant examined herself as DW.1 and Ex.B.1 was marked.

6)Head both the sides 3

7)Issue Nos.1 to 4:

i)All the four issues are taken up together for common determination.

ii)The learned counsel for the plaintiff has contended that the defendant borrowed Rs.5,00,000/- from the plaintiff on 18.11.2015 and executed Ex.A.1 pronote and in spite of demands orally and issuance of

Ex.A.2 legal notice, the defendant failed to pay amount. He has further contended that the defendant examined herself as DW.1 and in her cross examination she denied the signatures in the suit summons also and also stated that she has not seen the pronote prior to fling the written statement and the same is sufficient that the defence taken by the defendant is a bald one; that to prove the case of the plaintiff, the plaintiff examined herself as Pw.1 and also examined the sole attestor as

PW.2 and the evidences of Pws1 and 2 are consistent through out and that the suit pronote is not a fabricated one and it is supported by well consideration and it is true, valid and binding on the defendant.

iii)On the other hand, the learned counsel for the defendant has contended that the defendant did not borrow any amount or execute

Ex.A.1 pronote in favour of the plaintiff and it is a forged and fabricated document brought into existence by the husband of the plaintiff and the plaintiff in view of the demand by the defendant and her husband for settlement of accounts and prayed to dismiss the suit.

iv)All these issues cast burden on the plaintiff. To substantiate the case of the plaintiff, the plaintiff examined herself as PW.1, who filed her affidavit in lieu of her examination-in-chief wherein she reiterated the plaint pleadings. In addition to that, PW.1 exhibited Exs.A.1 to A.3.

Evidencing the transaction took place between the plaintiff and the defendant, P.W.1 exhibited Ex.A.1 is promissory note and testified that 4 the defendant borrowed Rs.5,00,000/- from her on 18.11.2015 and executed the pronote. To prove the demand made by the plaintiff, P.W.1 exhibited Ex.A.2-office copy of legal notice dated 8.9.2017 and Ex.A.3 is refused return over from the defendant dated 15.9.2017. In addition to that, the plaintiff also examined the sole attestor of Ex.A.1 pronote as

P.W.2, who also testified on the similar lines as that of P.W.1 in regard to the very execution of Ex.A.1 by the defendant in favour of the plaintiff on 18.11.2015 after passing consideration under it and his attesting the said pronote. On perusal of Ex.A.1, it seems that the suit pronote is to be executed by the defendant by borrowing Rs.5,00,000/- on 18.11.2015 from the plaintiff and the said suit pronote was attested by PW.2. A conjoint reading of the testimonies of PWs.1 and 2 coupled with Ex.A.1, it seems that the defendant borrowed Rs.5,00,000/- from the plaintiff and executed Ex.A.1 pronote. PW.1 denied the suggestion that the petition schedule property does not belong to the defendant herein and the defendant is not true owner of the petition schedule property and also the Court declared that the defendant herein, who is JDr in

E.A.No.67/2016 in E.P.No.201/2010 in O.S.No.139/2007 is not true owner of the property in the said E.A. and the same property is in attachment in the present petition and so that as per orders of this Court the defendant herein has no manner of any right and title and ownership over the attached petition schedule property. The above said part of evidence is in no way concerned to determine the issues as settled and it relates to the petition filed under Order 38 Rule 5 CPC and as such no legal sanctity can be attached to the above said suggestion. PW.1 denied the suggestion that the defendant did not borrow any amount and did not execute any pronote and no consideration was passed. PW.1 further denied the suggestion that due to disputes between her husband and 5 husband of the defendant in neem business, her husband developed grudge against the defendant and created and fabricated and forged

Ex.A.1 suit pronote against the defendant and then he got filed this suit through his wife against the defendant. No document has seen the light of the day to prove that there was business done in between the husband of the plaintiff and the husband of the defendant and in such circumstances no legal credence can be fastened to the above said suggestion and the very motive as attributed by the defendant falls to ground and it is ended in abortive. The entire cross examination of PW.2 is also consistent through out. PW.2 in his cross examination stated that he signed in Ex.A.1 pronote with the pen used by the scribe. Ex.A.1 reveals that ink appearing in the signature of PW.2 is one and the same ink used by the scribe in the signature subscribed by him. PW.2 also stated that the defendant is resident of Timmapuram village and the scribe of Ex.A.1 pronote had not mentioned the date, month and year underneath his signature and as well as the defendant had not mentioned the date, month and year underneath her signature. On perusal of Ex.A.1, it seems that there are no date, month and year underneath the signatures of the defendant so also the signature of

PW.2.

v)The defendant examined herself as DW.1 and in her cross examination she has denied the signatures appearing in Ex.A.1 are of her when the same are confronted by the learned counsel for the plaintiff. In her cross examination, she stated that Thimmapuram and

Venkatakrishnapuram are side by side villages. The witness has denied the signature appearing in the suit summon at the top of it when the same is confronted by the learned counsel for the plaintiff by posing question, whether the signature is of the witness or not. The above said 6 evidence shows that the defendant is uncertain even about her signature and also stated that the defendant is in the habit of denying her own signatures and in such circumstances no legal credence can be given to the defence taken by the defendant that the signature in Ex.A.1 is a forged one. Another added dimension to disbelieve the said defence is DW.1 in her cross-examination stated that she did not personally verify the signatures in the pronote before this Court prior to filing her written statement and she has not verified any copy of the pronote out of court.

The above said evidence shows that till filing the written statement, the defendant has not seen either Ex.A.1 pronote or copy of the same, and in such circumstances the very denial of the signatures is a bald one and as such the plaintiff has successfully proved that the suit pronote is true, valid and supported by consideration and it is not a forged and fabricated one. The defendant has not taken any steps even to send the disputed signature in Ex.A.1 pronote with that of her admitted signatures for comparison and no explanation has been offered to that effect, which makes this Court to come to conclusion that the defendant taken by the defendant is not a believable one. In view of above discussion, this

Court has to come conclusion that the defendant has miserably failed to support his defence. Hence, all the issues are answered in favour of the plaintiff and against the defendant accordingly.

8)Issue No.5:: In the result, suit is decreed with costs in favour of the plaintiff and against the defendant for Rs.7,32,000/- along with subsequent interest at 12% per annum on the principal amount of

Rs.5,00,000/- from the date of suit till the date of decree and thereafter at 6% per annum till realization.

Dictated to the Stenographer Grade III, transcribed by him,

corrected and pronounced by me in the open Court this, the 25th day of January, 2019.

7

Additional Senior Civil Judge,

Eluru.

Appendix of Evidence

Witnesses examined

For Plaintiff : For Defendant :

PW.1:T.VijayalakshmiDW.1:H.V.Ramana PW.2:Kodavati Naveen Kumar

Documents Marked

For Plaintiff : Ex.A.1:Pronote dated 18.11.2015 executed by the defendant in favour of the Plaintiff

Ex.A.2:Office copy of legal notice dated 8.9.2017

Ex.A.3:Refused return cover from the defendant dated 15.9.2017

For Defendant: Ex.B.1:Certified copy of order passed in E.A.No.67/2016 in

E.P.No.201/2010 in O.S.No.139/2007.

ASCJ

Eluru.