Sri G. Gopi Chand

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IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE:: GUNTUR

PRESENT:: SRI G . GOPICHAND,

III ADDITIONAL DISTRICT JUDGE

Wednesday, the 7th day of March, 2017.

A.S.No.189/2014

Between:

Vuyyuru Nagi Reddy, S/o.late Tati Reddy, Hindu, aged about 52 years, Cultivation, R/o.D.No.6-12, Nidamarru Village, Mangalagiri Mandal, Guntur District,

Mangalagiri J.C.J.C. .... Appellant/plaintiff.

-AND- 1.Vuyyuru Siva Sambi Reddy @ Sambi Reddy, S/o. late Tati Reddy, Hindu, aged about 55 years, Cultivation, R/o.D.No.6-11, Nidamarru Village, Mangalagiri Mandal, Guntur District, Mangalagiri J.C.J.C 2.Vuyyuru Maheswara Reddy, S/o.Siva Sambi Reddy @ Sambi Reddy, Hindu, aged about 42 years, Cultivation, R/o.D.No.6-11, Nidamarru Village, Mangalagiri Mandal, Guntur District, Mangalagiri J.C.J.C.

.... Respondents/Defendants 2 and 3.

On Appeal against the Judgment and decree dated 17.11.2014 passed in O.S.No.293/2008 on the file of Senior Civil

Judge, Mangalagiri.

Between:

Vuyyuru Nagi Reddy, S/o.late Tati Reddy, Hindu, aged about 52 years, Cultivation, R/o.D.No.6-12, Nidamarru Village, Mangalagiri Mandal, Guntur District,

Mangalagiri J.C.J.C. .... Plaintiff.

-AND- 1.Vuyyuru Basavamma (Died) 2.Vuyyuru Siva Sambi Reddy @ Sambi Reddy, S/o. late Tati Reddy, Hindu, aged about 55 years, Cultivation, R/o.D.No.6-11, Nidamarru Village, Mangalagiri Mandal, Guntur District, Mangalagiri J.C.J.C 3.Vuyyuru Maheswara Reddy, S/o.Siva Sambi Reddy @ Sambi Reddy, Hindu, aged about 42 years, Cultivation, R/o.D.No.6-11, Nidamarru Village, Mangalagiri Mandal, Guntur District, Mangalagiri J.C.J.C. (3rd defendant added as party to the suit as per orders in I.A.344/2013, dt.04.07.2013)

.... Defendants.

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This appeal suit is coming on 23.01.2018 for hearing

before me in the presence of Sri P.S.C.Prasad, Advocate for the

Appellant and of Sri G.Seetha Rami Reddy, Advocate for respondents and the matter having stood over till this day for consideration, and upon perusing the material available on record, this Court delivered the following:

J U D G M E N T

This Appeal is filed by the unsuccessful plaintiff in

O.S.No.293/2008 on the file of Senior Civil Judge, Mangalagiri,

challenging the decree and Judgment dated 17.11.2014, whereunder the suit filed by the sole plaintiff, for partition of the schedule property, was dismissed with costs.

2.For the sake of convenience, the parties in this appeal are referred to as they are arrayed in the suit.

3.The brief facts which are leading to the filing of the present appeal are as follows:-

The plaintiff filed O.S.No.293/2008 before the Senior Civil

Judge, Mangalagiri, seeking partition of the plaint schedule property.

The plaint schedule property consists of three items. Item no.1 is the land in an extent of Ac.1-00 in D.No.244 of Kaza village; item no.2 of the land in an extent of Ac.1-25 cents in D.No.248 of Kaza village, whereas, item no.3 is the land in an extent of Ac.1.66 cents in

D.No.417 situated in Nidamarru village.

4.(i) The contention of the plaintiff is that the plaintiff is the younger son, 2nd defendant is the elder son of the 1st defendant and

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Vuyyuru Tati Reddy. The said Vuyyuru Tati Reddy died intestate on 10.01.2001. the 3rd defendant is the son of the 2nd defendant. The plaintiff and the defendants are in joint possession of the schedule property, which is their ancestral property. The plaintiff has been demanding the defendants for partition of the plaint schedule property into three equal shares and allotment of one such share to him, but they are postponing the same.

ii) The 1st defendant died leaving behind the plaintiff and 2nd defendant who are sons and legal heirs and thus, the plaintiff and the 2nd defendant are entitled 1/3rd undivided share in the plaint schedule property.

iii)The 3rd defendant is the son of the 2nd defendant. The plaintiff came to know that in order to avoid the legitimate share to the plaintiff in respect of the plaint schedule property, the defendants 1 to 3 colluded together brought into existence the gift deed, dt.14.12.2005 bearing document no.8857/2005 of S.R.O,

Mangalagiri and item no.3 of the schedule property said to be executed by the 1st defendant in favour of the 3rd defendant and gift deed, dt06.06.2006 bearing document no.2878/2006 of Sub Registrar

Office, Pedakakani, in respect of item nos.1 and 2 of plaint schedule property said to be executed by defendants 1 and 2 in favour of 3rd defendant. The said documents are not valid and they will not affect the legitimate share of the plaintiff in the suit schedule property. As such,the 3rd defendant is proper and necessary party to the suit.

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5.Initially, the 2nd defendant filed written statement, which is adopted by the 1st defendant. After impleading the 3rd defendant, he filed separate written statement. But, the contention of the defendants 1 to 3 is common and their contention is that during the life time of Vuyyuru Tati Reddy , partition was effected in the year 1982 between plaintiff and 2nd defendant and in the said partition, items 1 and 2 of the plaint schedule property are allotted to the 2nd defendant and whereas an extent of Ac.1.02 ½ cents of item no.1 in ‘A’ schedule, situated in Kaza village and another Ac.1.20 cents in

D.No.243 of Kaza village which is described in the ‘B’ schedule of the written statement filed by the 3rd defendant, was allotted to the plaintiff, whereas item no.3 of the plaint schedule property is the separate property of the 1st defendant as she purchased the same with her stridhana property under sale deed, dt.16.11.1968 and out of love and affection towards the 3rd defendant, the 1st defendant gifted Ac.1.00 cents of land to the 3rd defendant under registered gift deed, dt.14.12.2005 and the remaining extent of the land was bequeathed to the 2nd defendant under a Will, dt.10.05.2008. The further contention of the defendants is that the house property is yet to be partitioned and that the plaintiff sold away the properties that were allotted to him.

6.Basing on the above pleadings, the trial Court settled the following issues:

1. Whether the plaintiff is in joint possession and enjoyment of the plaint schedule property as being joint family

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member?

2. Whether the court fee paid is correct?

3. Whether the plaintiff is entitled for partition as prayed for?

4. To what relief?

The following additional issues are settled by the trial

Court on 15.09.2012.

1.Whether partition took place in the year 1982 regarding the suit properties (i.e. item 1 and 2) ?

2.Whether item no.3 of suit property is joint family properties?

3.Whether suit is bad for non joinder of necessary parties?

4.Whether the plaintiff is entitled for partition of suit property and for allotment of 1/3rd share to him?

5.Whether the court fee paid u/Sec.34(2) of A.P.C.F and

Act, is correct?

6.To what relief?

The following additional issue was settled by the trial Court on 06.08.2013.

Whether the plaintiff is entitled to partition of plaint schedule property into two equal shares and is entitled one such share?

7.During the course of trial, the plaintiff examined himself as P.W.1 and exhibited Exs.A.1 to A.4. Whereas the 2nd defendant examined himself as D.W.1 and the defendants got examined D.Ws.2

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and 3 and exhibited Exs.B1 to B8.

8.The trial Court after considering the oral and documentary evidence placed by both parties, held that the partition already took place during the life time of father of plaintiff and 2nd defendant and in the said partition, item nos.1 and 2 of the plaint schedule property fell to the share of the 2nd defendant and the properties mentioned in ‘A’ schedule of written statement are fell to the share of plaintiff and whereas the item no.3 of the schedule property is the separate property of the 1st defendant. The trial

Court further held that the court fee paid by the plaintiff is not correct, as he is not in joint possession of the schedule property and thus, the trial Court dismissed the suit with costs vide impugned judgment, dt.17.11.2014.

9.Challenging the impugned decree and judgment, the present appeal is filed by the sole plaintiff, on the following grounds:

a)that the judgment and decree of the trial Court are contrary to law, weight of evidence and probabilities of the case;

b)that the trial Court did not frame proper issues;

c)that the trial Court did not properly appreciate the oral and documentary evidence on record;

d)that the trial Court did not peruse the evidence and documents in the proper perspective;

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e)that the trial Court wrongly concluded that in t he year 1982, partition was effected between the plaintiff and the 2nd defendant, whereunder the plaintiff got items 1 and 2 of the written statement ‘B’ schedule mentioned properties; whereas, the 2nd defendant got items 1 and 2 of the plaint schedule properties and otherwise there is no necessity for the plaintiff and the 2nd defendant to obtain revenue record i.e. pattadar pass books and revenue title deed pass books in their names for the their respective properties;

f)that the trial Court failed to note the recitals made in Ex.A3 and Ex.B1 which clearly show that no partition took place in between the plaintiff and the 2nd defendant and further failed to note that only for getting bank loans, they have obtained pass books separately and no actual partition took place in between plaintiff and the 2nd defendant;

g)that the trial Court wrongly concluded that in as much as, the said partition was not reduced into writing, it is probable to believe the contention of the defendants that the 1st defendant and the 2nd defendant joined the plaintiff in execution of Ex.B1 and the purchasers of the property covered under Ex.B1 insisted them to join the plaintiff for that reason;

h)that the trial Court failed to note that there is no recital in

Ex.B1 that at the instance of purchasers only, the defendants 1 and 2 joined the plaintiff in execution of Ex.B1 and that the trial Court

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further failed to note that it is the burden of the defendants 1 and 2 that they have joined the plaintiff in execution of Ex.B1 at the instance of purchasers and the said burden was not discharged by the defendants 1 and 2 by examining either the purchasers or the attestors of Ex.B1;

i)that the trial Court failed to note the recitals in Ex.A3 gift deed which was executed by defendants 1 and 2 in favour of 3rd defendant with regard to item nos.1 and 2 of the plaint schedule properties which also clearly show that no partition was effected in between the plaintiff and the 2nd defendant;

j)that the trial Court failed to note that if really partition was effected in between the plaintiff and the 2nd defendant and items 1 and 2 of plaint schedule properties fell to the share of 2nd defendant, the 2nd defendant can only execute the plaint schedule properties by mentioning the said fact, but the recitals of Ex.A3 clearly show the negative case of the defendants;

k)that the trial Court failed to note that item no.3 of the plaint schedule property is the joint family property and by alienating the joint family property under the original of Ex.A4, the same was purchased in the name of 1st defendant under the original of Ex.B2;

l)that the trial Court failed to frame the issue with regard to genuinity and validity of Will, dt.10.05.2008 (Ex.B8) said to have been executed by 1st defendant in favour of 2nd defendant with regard to

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part of item no.3 of the plaint schedule property i.e. an extent of

Ac.0-66 cents;

m)that the trial Court ought to have held that the 2nd defendant failed to prove the execution and genuinity of the Will, dt.10.05.2008 which was marked as Ex.B8 and it is a fabricated one;

n)that the trial Court failed to note that non examination of 3rd defendant and not marking the documents who alleged to have been in actual possession and enjoyment of item nos.1 and 2 and part of item no.3 (Ac.1-00 cents) of plaint schedule properties is fatal to the case of the defendants.

10.Heard arguments of both counsel.

11.Now the points for consideration in this appeal are:

1. Whether there was a oral partition took place between the plaintiff and 2nd defendant during the life time of their father in the year 1982 and in the said partition, item nos.1 and 2 of the plaint schedule property are allotted to the 2nd defendant?

2. Whether item no.3 of the plaint schedule property is the separate property of the 3rd defendant?

3. Whether the appellant has established any ground for interfering with the impugned decree and judgment, dt.17.11.2014 in O.S.293/2008 on the file of Senior Civil Judge, Mangalagiri?

4. Result of the appeal?

12.POINT No.1:-

There is no dispute regarding the fact that the plaintiff and the 2nd defendant are the sons of the 1st defendant and Vuyyuru

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Tati Reddy. Whereas, 3rd defendant is the son of the 2nd defendant.

The said Vuyyuru Tati Reddy, died intestate on 10.01.2001, whereas, the 1st defendant died during the pendency of the suit.

13.Admittedly, items 1 and 2 of the plaint schedule property and some other properties are the joint family property of the plaintiff and 2nd defendant. But, the contention of the defendants is that a partition took place in the year 1982 during the life time of

Vuyyuru Tati Reddy and in the said partition, item nos.1 and 2 of the plaint schedule property were allotted to the share of the 2nd defendant and some other properties are allotted to the plaintiff, but later he sold the said properties.

14.The plaintiff who examined himself as P.W.1, filed his affidavit, in lieu of his chief examination, reiterating the contents of the plaint. Exs.A1 to A4 are marked through P.W.1. Ex.A1 is the death certificate of Vuyyuru Tati Reddy , wherein it is mentioned that he died on 10.01.2001. Ex.A2 is the family member and legal heir certificate issued by M.R.O, Mangalagiri, in favour of plaintiff and defendants 1 and 2. Ex.A3 is the copy of registered gift deed, dt.06.06.2006 executed by defendants 1 and 2 in favour of 3rd defendant in respect of item nos.1 and 2 of the plaint schedule property. Ex.A4 is the registration extract of sale deed, bearing document no.2469/2008 executed by Vuyyuru Tati Reddy and his minor children in favour of T.Subbaiah.

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PW1 is cross examined at length by the counsel for the defendants. In the cross-examination, P.W.1 deposed that during the life time of his father, he and 2nd defendant used to reside separately in the same house. The 2nd defendant resided in the southern portion and he resided in the northern portion. He admitted that on 31.03.2003, he, the defendants 1 and 2 executed registered sale deed in favour of Bobba Siva Prakash and Ex.B1 is the copy of the said sale deed. He further deposed that Ex.B2 is the registration extract of sale deed, dt.15.11.1968 obtained by the 1st defendant in respect of item no.3 of the plaint schedule property and that pattadar pass book and title deed for the property covered under

Ex.B2 stand in the name of his mother. He also obtained pattadar pass book and title deed in respect of the property covered by Ex.B1 sale deed and whereas, the 2nd defendant obtained pattadar pass book and title deed in respect of item nos.1 and 2 of the plaint schedule property. He further deposed that he took loan from the

Co-Operative Society Bank, Nidamarru, by mortgaging the property covered by Ex.B1 and that he applied for issuance of pattadar pass book and title deed pass book in respect of the property covered by

Ex.B1. Whereas, the 2nd defendant applied for issuance of pattadar pass book and title deed in respect of the item nos.1 and 2 of the plaint schedule property and that he endorsed no objection for issuance of pattadar pass book and title deed in favour of 2nd defendant and similarly, 2nd defendant endorsed no objection for

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issuance of pattadar pass book and title deed in respect of the property covered by Ex.B1. He further deposed that he does not know whether the 1st defendant executed a registered gift deed, dt.14.12.2005 in favour of 3rd defendant in respect of Ac.1-00 cents of land out of Ac.1-66 cents of land covered by Ex.B2 sale deed. He further deposed that from 1986 onwards, he and the 2nd defendant have been obtaining loans from the banks individually by mortgaging the properties.

15.The 2nd defendant, who examined himself as D.W.1, filed his affidavit, in lieu of his chief examination, reiterating the contents of the written statement filed by him. Exs.B3 to B8 are marked through D.W.1. Ex.B3 is the office copy of reply notice got issued by the 1st defendant to the counsel for the plaintiff. Ex.B4 is the postal acknowledgment. Exs.B5 and B6 are the title deed and pattadar pass book obtained by the 2nd defendant in respect of item nos.1 and 2 of the plaint schedule property. Whereas, Ex.B7 is the pattadar pass book obtained by the 1st defendant in respect of item no.3 of the plaint schedule property and Ex.B8 is the unregistered Will, dt.10.05.2008 executed by 1st defendant bequeathing Ac.0-66 cents of land in respect of item no.3 of the schedule property in favour of

D.W.1.

In the cross-examination, D.W.1 deposed that his mother was given Ac.1.66 cents of land at the time of her marriage towards pasupu kumkuma and in the year 1986, he was given pattadar pass

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book and title deed in respect of the property fell to his share in the partition that took place in the year 1982 among himself and his father and no landed property fell to the share of his father. He further deposed that at the request of the vendee Bobba Siva

Prakash, he and his mother joined as parties in Ex.B1.

16.D.W.2-Janga Siva Rami Reddy, who is the 1st attestor of

Ex.B8 Will, clearly deposed about the fact that the said Will was executed by the 1st defendant, bequeathing Ac.0-66 cents of land to the 2nd defendant out of item no.3 of the plaint schedule property.

Whereas, D.W.3-Tholeti Praveen Kumar, is the scribe of the said Will and even though he has not deposed about the fact that the 1st defendant put her thumb impression on the said Will, he deposed that the said Will was prepared by him.

17.It is pertinent to note that Ex.B8 Will is a typed one and in the said Will, there is an endorsement that it was drafted by D.W.3, who is a professional document writer.

18.A perusal of Ex.B1 sale deed, makes clear that under the said document, an extent of Ac.1-22 cents of land in D.No.243 of

Kaza village and another extent of Ac.1-02 ½ cents of land in

D.No.244 of Kaza village was sold to one Bobba Siva Prakash . The plaintiff and the defendants 1 and 2 are the executants of the said sale deed. In the said sale deed, it clearly mentioned that pattadar pass book and title deed in respect of the said property was

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obtained in the name of the plaintiff. It is pertinent to note that in the western boundary of Ac.1-02 cents of land sold under the said document is clearly mentioned as the land of the 2nd defendant herein. There is also a mention in the said document that the 2nd defendant herein will get right to get the water from the well situated in the property sold under Ex.B1 sale deed. As per Exs.B5 and B6 title deed and pattadar pass book obtained by D.W.1, it is clear that the said documents are issued in favour of D.W.1 in respect of item nos.1 and 2 of the schedule property. The very fact that the plaintiff obtained pattadar pass book and title deed in respect of the property covered by Ex.B1 sale deed, whereas, the 2nd defendant obtained pattadar pass book and title deed in respect of item Nos.1 and 2 of the plaint schedule property clearly indicates that in the oral partition, the property covered by Ex.B1 was allotted to the plaintiff.

Whereas, item nos.1 and 2 of the plaint schedule property was allotted to the 2nd defendant. So, they obtained pattadar pass book and title deed in their favour in respect of the property fell to their share. In fact, as per the admissions made by the plaintiff in his cross- examination, it is very clear that after the oral partition, they obtained pattadar pass book and title deed in respect of the property fell to their share and in fact, they are obtaining loans from the Co-Operative Society Bank in their individual names in respect of their property. The very fact that in Ex.B1 sale deed in the boundary recitals, it is mentioned that the 2nd defendant is having land on the

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western side of the property Ac.1-02 cents of land sold under Ex.B1 and also asserting the right of the 2nd defendant to get water from the well situated in the land sold under Ex.B1 make clear that a oral partition was effected long back between the plaintiff and the 2nd defendant during the life time of their father and in the said partition only, the plaintiff got the property covered by Ex.B1 towards his share. The contention of the 2nd defendant that only at the instance of the vendee, he and the 1st defendant joined as parties in Ex.B1 sale deed as there is no registered partition deed in between the plaintiff and the 2nd defendant is believable. It is pertinent to note that the plaintiff in his cross-examination, clearly admitted that he took loan from the Co-Operative society, Nidamarru, by mortgaging the property covered under Ex.B1. In Ex.B1, there is a clear recital to the effect that the said property was sold in order to discharge the amount due to the Co-Operative Society Bank. So, it is clear that the plaintiff sold the property covered by Ex.B1 only to discharge the debts incurred by him, but not the debts incurred by the defendants 1 and 2.

19.So, considering all the circumstances, I hold that the oral partition took place among the plaintiff, 2nd defendant and their father and in the said partition, item nos.1 and 2 of the plaint schedule property fell to the share of 2nd defendant and whereas the property covered under Ex.B1, fell to the share of plaintiff and later, the plaintiff sold the property allotted to him under Ex.B1 sale deed.

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So, this point is answered against the appellant and in favour of respondents.

20.POINT No.2:-

The specific contention of the defendants is that item no.3 of the plaint schedule property was purchased by the 1st defendant with her stridhana property and thus, it is not the joint family property and so, the plaintiff cannot claim any share in the said property. But, the plaintiff has come up with a version that only after selling the joint family property, item no.3 of the schedule property was purchased by his father in the name of the 1st defendant and so, it is treated as joint family property. But, the 1st defendant, who is mother of the plaintiff by adopting the written statement filed by the 2nd defendant has clearly asserted that item no.3 of the plaint schedule property is her separate property and it was purchased by her stridhana property. Ex.A4 is the registration extract of sale deed executed by Vuyyuru Tati Reddy on 12.11.1986 in respect of certain property. Whereas, Ex.B2 is the registration extract of sale deed obtained by the 1st defendant in respect of item no.3 of the schedule property. So, simply because, Exs.A4 and B2 are contemporaneous documents, it cannot be inferred that only out of the sale proceeds derived by selling the joint family property, the father of the plaintiff purchased item no.3 of the plaint schedule property in the name of 3rd defendant. Admittedly, the 1st defendant obtained pattadar pass book in respect of item no.3 of the schedule

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property, which is marked as Ex.B7. Except the oral testimony of plaintiff, there is no material available on record for establishing that item no.3 of the schedule property was purchased with joint family funds. So, it cannot be said that item no.3 of the plaint schedule property is the joint family property of the plaintiff and the 2nd defendant.

21. The 1st defendant executed gift deed in favour of 3rd defendant in respect of Ac.1-00 of land out of item no.3 of the plaint schedule property. Whereas, the remaining Ac.0.66 cents of land was bequeathed by the 1st defendant in favour of the 2nd defendant.

22.The learned counsel for the appellant argued that the execution of Ex.B8-Will by the 1st defendant is not established by the 2nd defendant and so, the 2nd defendant cannot claim any exclusive right in respect of the item no.3 of the plaint schedule property.

23.Per contra, the learned counsel for the defendants argued that the execution of Ex.B8-Will by the 1st defendant was clearly established by the 2nd defendant by examining D.Ws.2 and 3 and thus, the defendants 2 and 3 are entitled to claim exclusive right in respect of item no.3 of the schedule property.

24.Ex.B8 is an unregistered Will purportedly executed by the 1st defendant in favour of 2nd defendant. The execution of the said

Will is clearly established by the 2nd defendant by examining D.W.2 who is the 1st attestor of the said Will. Even the scribe of the said Will

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is examined as D.W.3 deposed about the fact that the said Will was drafted by him. In the said Will, there is a clear mention about the fact that the 1st defendant executed a registered gift deed, dt.14.12.2005 in respect of Ac.1-00 of land in favour of 3rd defendant. Whereas, she bequeathed the remaining extent of Ac.0- 66 cents of land in favour of the 2nd defendant. There is no dispute regarding the fact that the 1st defendant executed gift deed in favour of 3rd defendant in respect of Ac.1-00 of land out of item no.3 of the plaint schedule property as in the written statement filed by the 2nd defendant, there is clear mention about the execution of the said gift deed by the 1st defendant in favour of 3rd defendant and that the said written statement was adopted by the 1st defendant.

25.When the title deed in respect of item no.3 of the schedule property is in the name of the 1st defendant and when the plaintiff is contending that the said property was purchased out of joint family funds, the burden heavily lies on the plaintiff in establishing the same. But, in the said sale deed obtained by the 1st defendant, a copy of which is marked as Ex.B2, there is no mention that the consideration for purchasing the said property was paid by the father of the plaintiff. The plaintiff in his cross-examination, clearly admitted that Ex.B2 does not reveal that his father purchased item no.3 of the plaint schedule property in the name of his mother.

In fact, the 1st defendant obtained pattadar pass book in respect of item no.3 of the plaint schedule property. Thus, it is clear that the 1st

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defendant during her life time, enjoyed item no.3 of the plaint schedule property as an absolute owner and she gifted part of the said property to the 3rd defendant and bequeathed the remaining part of the property to the 2nd defendant under Ex.B8 Will. So, this point is answered accordingly against the appellant.

26.POINT No.3:-

A perusal of the impugned judgment makes clear that the learned Senior Civil Judge, Mangalagiri, properly appreciated the oral and documentary evidence placed before him and rightly dismissed the suit, holding that oral partition was already effected between the plaintiff and the 2nd defendant and in the said partition, the 2nd defendant got item nos.1 and 2 of the schedule property. The trial

Court further held that item no.3 of the property is the separate property of the 1st defendant. In view of my findings in points 1 and 2, I hold that the appellant/ plaintiff is not entitled for the relief of partition of the schedule property, as prayed for. So, I see no ground warranting the interference of this Court with the impugned decree and judgment passed by the learned Senior Civil Judge, Mangalagiri in O.S.No.293/2008. So, I hold that the impugned decree and judgment is sustainable. So, this point is answered accordingly against the appellant.

27.POINT No.4:-

IN THE RESULT, the appeal is dismissed with costs,

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confirming the decree and Judgment dated 17.11.2014 in

O.S.No.293/2008 on the file of the Senior Civil Judge, Mangalagiri.

Dictated to the Stenographer Grade-I, transcribed by him,

corrected by me and pronounced in open court this the 7th day of March, 2018.

III ADDL. DISTRICT JUDGE

GUNTUR.

APPENDIX OF EVIDENCE

No oral or documentary evidence was adduced on either side.

III ADJ

GUNTUR

Copy to:

The Senior Civil Judge, Mangalagiri.

O.S.385/2012 1 FAIR

IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE::

GUNTUR

PRESENT: SRI G . GOPICHAND

III ADDITIONAL DISTRICT JUDGE

Thursday, the 09 th day of March, 2018.

O.S.No.385/2012

Between:

Lagadapati Srinivasa Vara Prasad, S/o. Amarappa Naidu, Business, Hindu, Aged about 52 years, R/o.Door No.8-21-7, Seetharama Nagar, 3rd line,

Mangalagiri Road, Guntur. .. Plaintiff.

And

Veluvolu Rajendra Babu, S/o. Ranga Rao, Business, Hindu, Aged about 58 years, R/o.Door No.4-4-169/A, 6/2 Line,

Chandramouli Nagar, Guntur. .. Defendant.

This suit is coming on 07.03.2018 for hearing before me in the presence of Sri K.Siva Ram Prasad, Advocate for Plaintiff, Sri Ch.

Bolla Rao, Advocate for the Defendant, and having stood over for consideration till this day, and upon perusing the material available on record, this court delivered the following : -

J U D G M E N T

This suit is filed for recovery of Rs.33,73,300/- on the foot of a promissory note dated 30.05.2011.

2]The averments made in the plaint in brief are as follows:

On 30.5.2011 the defendant borrowed an amount of

Rs.25,00,000/- from the Plaintiff for his business purposes agreeing to repay the same with interest at 24% per annum and executed a promissory note in favour of the Plaintiff on the same day. The defendant issued a cheque to the plaintiff for the discharge of the amount due under the above said promissory note, but the said

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cheque was dishonored due to ‘funds insufficient’ in the account of the defendant. Subsequently, the defendant failed to repay the pronote amount in spite of several demands made by the plaintiff.

Hence, the suit.

3]The Defendant filed written statement denying the averments made in the plaint and contending that he and the defendant are best friends and he borrowed Rs.10,00,000/- from the plaintiff in the year 2009 and agreed that the same will be repaid within one year together with interest @ 24% p.a., but no negotiable instrument was executed by the defendant in the favour of the plaintiff. It if further averred that the defendant sustained loss in his business and so he had to wind up his business in the year 2009. In the year 2009, the plaintiff questioned for discharge of the debt of

Rs.10,00,000/- and put the matter before the elders on 12.11.2012 and that the defendant promised that he will discharge the debt to the plaintiff within one year and he requested to give him one year time and the plaintiff agreed for the same and at the instructions of the elders, the defendant executed some promissory notes and cheques in favour of plaintiff and his family members with huge amounts and with different names, dates and also different part payments. The said promissory notes and cheques were obtained by the plaintiff only for the purpose of security, at the advice of the elders and the same will return to the defendant on discharge of debts. The plaintiff filed the suit and he also got filed three three other suits through his family members i.e., O.S.387/2012 on the file

O.S.385/2012 3 FAIR

of the Hon’ble IV Additional District Judge’s Court, Guntur;

O.S.1038/2012 on the file of the Hon’ble IV Additional District

Judge’s Court, Guntur and O.S.1045/2012 on the file of the Hon’ble I

Additional Senior Civil Judge’s Court, Guntur and also obtained

interim attachment orders of the immovable properties which are not in the name of the defendant by the date of attachment orders.

At the time of execution of the promissory notes, no witness signed, but for filing purpose one witness was signed and he is also relative to the plaintiff and the defendant never received even a single pie under the promissory notes filed in these suits. So, the suit is liable to be dismissed.

4]Basing on the above pleadings, the following issues are settled for trial by my learned predecessor:-

1. Whether the suit Promissory Note dated 30.05.2011 is true, valid and executed by defendant by

borrowing amount from the plaintiff?

2. To what relief ?

5]During the course of trial, the Plaintiff examined himself as P.W.1 and got examined PW2 and exhibited Exs.A.1 to A.14. No oral or documentary evidence is adduced by the defendant.

6]ISSUE No.1:-

The specific contention of the plaintiff is that the defendant borrowed an amount of Rs.25,00,000/- under the suit promissory note from the plaintiff on 30.05.2011 agreeing to repay

O.S.385/2012 4 FAIR

the said amount with interest at 24% p.a. and there after defendant failed to repay the said amount. Whereas, contention of the defendant is that he borrowed only a sum of Rs.10,00,000/- from the plaintiff and at the instance of the elders he executed some promissory notes and cheques in favour of plaintiff and his family members and basing on one such promissory note the plaintiff filed the suit and the suit promissory note is not supported by consideration.

7] The Plaintiff who examined himself as P.W.1 filed his affidavit in lieu of his chief-examination reiterating the contents of

Plaint. Exs.A1 to A14 are marked through him. Ex.A1 is the original promissory note dated 30.05.2011 for a sum of Rs.25,00,000/- executed by the defendant in favour of the plaintiff. Ex.A2 is the office copy of the notice dated 19.11.2012 sent to Sub Registrar

Office, Koritepadu by the plaintiff. Ex.A3 is the Courier receipt showing the sending of notice dated 19.11.2012 to Sub Registrar,

Koretipadu, Guntur. Ex.A4 is the acknowledgment from the Sub registrar office, Guntur. Ex.A5 is the office copy of notice dated 03.01.2013 issued by the plaintiff to the defendant. Ex.A6 is the reply notice dated 22.01.2013 got issued by G.Tirupathi Rao. Ex.A7 is the certified copy of IP 17/2013 on the file of I Additional Senior Civil

Judge’s Court, Guntur. Ex.A8 is the certified copy of the Cheque

dated 15.01.2013 issued by the defendant to the plaintiff. Ex.A9 is

the certified copy of the counter foil dated 16.01.2013 of the Karur

Vysya Bank, Guntur. Ex.A10 is the certified copy of the cheque return

O.S.385/2012 5 FAIR

memo dated 18.01.2013. Ex.A11 is the certified copy of the legal notice dated 24.01.2013 issued by the plaintiff to the defendant.

Ex.A12 is the certified copy of the postal receipt dated 24.01.2013.

Ex.A13 is the certified copy of return notice dated 29.01.2013 from the defendant. Ex.14 is the certified copy of the private complaint

dated 28.02.2013 filed by the plaintiff against the defendant U/s.138

N.I.Act in C.C.307/2014 on the file of Special Judicial 1st Class

Magistrate for Prohibition and Excise, Guntur.

In the cross-examination P.W.1 deposed that he has been working in Global Hospitals, Hyderabad for the last 7 years. Prior to that he did contract works and as he sustained heavy loss in the contract works he joined in a job and he know the defendant for the last 32 years and the defendant used to run whole sale medical shop in Kannavarithota, Guntur and he and his wife, his sister and his father in law filed four separate suits against the defendant on the foot of promissory notes. He further deposed that three months prior to Ex.A1 promissory note transaction defendant requested him to lend money. As on 30.05.2011 his business was in financial crisis and as the defendant is in need of money, he took back the money lent to him to his friends and that 10 days prior to Ex.A1 transaction he secured Rs.25,00,000/- for lending the same to the defendant and that Ex.A1 transaction took place in his house in Guntur and at the time of Ex.A1 transaction he, defendant and one T.Chennakrishnaiah were present. He further deposed that defendant filled the blanks in the proforma pronote and the defendant signed on the revenue

O.S.385/2012 6 FAIR

stamp and also under the revenue stamp and the defendant was in habit of borrowing money from him and his family members. He denied the suggestion that defendant closed his business by 30.05.2011, so there was no necessity for him to borrow money under Ex.A1 promissory note.

8]PW2-T.Chenna Krishnaiah who is the sole attestor of

Ex.A1 promissory note deposed about the fact that defendant borrowed Rs.25,00,000/- from the plaintiff on 30.05.2011 and the defendant executed Ex.A1 promissory note and that he attested

Ex.A1 promissory note and entire transaction took place in his presence. In the cross-examination he deposed that defendant brought the promissory note and revenue stamp and the defendant himself filled up the blanks in the Ex.A1 Promissory note. He denied the suggestion that the defendant is not the scribe of the Ex.A1

Promissory note.

9]The learned counsel for the plaintiff argued that execution of Ex.A1 promissory note by the defendant is clearly established by the plaintiff by examining PW2 who is the sole attestor of Ex.A1 promissory and that the defendant himself is the scribe of Ex.A1 promissory note but the defendant has not come forward to give evidence, so an adverse inference can be drawn against the contention of the defendant that Ex.A1 promissory note is not supported by consideration and so, the suit may be decreed as prayed for.

O.S.385/2012 7 FAIR

10]Per contra, the learned counsel for the defendant argued that the defendant is not the scribe of Ex.A1 promissory note and that the Ex.A1 promissory note is filled with black ink pen, whereas the signature of the defendant is in blue ink pen and that basing on the signature of the defendant on a blank promissory note plaintiff filed the present suit and three other suits are filed by the family members of the plaintiff against the defendant and that plaintiff was having no capacity to pay Rs.25,00,000/- to the defendant as on the date of 30.05.2011 as he sustained loss in his business.

11]A careful perusal of Ex.A1 promissory note makes clear that the defendant himself is the scribe of the said promissory note.

The contention of the defendant is that he is not the scribe of the A1 promissory note. If really the defendant is not the scribe of the Ex.A1 promissory note, he is expected to enter into witness box for asserting the same. But for the reasons best known to the defendant he, shunned the witness box. When the specific version of the defendant is that the writings of Ex.A1 are not made by him, he is expected to furnish his specimen writings for the purpose of comparing the disputed hand writings with his specimen hand writings. But for the reasons best known to the defendant he has not furnished any specimen signatures or specimen hand writings. PW2 who is the sole attestor of Ex.A1 promissory note clearly deposed that defendant executed Ex.A1 promissory note after receiving consideration of Rs.25,00,000/-. Even as per the version of the defendant in the year 2009 he borrowed Rs.10,00,000/- from the

O.S.385/2012 8 FAIR

plaintiff and he has not repaid the said amount to the plaintiff. So, it indicates that defendant was in the habit of borrowing money from the plaintiff and the plaintiff is having capacity to lend money to the plaintiff by the date of execution of Ex.A1 promissory note. When the plaintiff has discharged his burden for establishing that the Ex.A1 promissory note is executed by the defendant and it is supported by consideration of Rs.25,00,000/-, the burden shifts to the defendant for establishing that Ex.A1 promissory note is not supported with consideration. But in the cross examination of PWs1 and 2 nothing is elicited in order to disprove their testimony and the defendant has not come forward for giving evidence for establishing his contention.

So an adverse inference can be drawn against the contention of the defendant that Ex.A1 promissory note is not supported by consideration. So considering all the circumstances I hold that Ex.A1 promissory note is true, valid, and executed by the defendant by borrowing an amount of Rs.25,00,000/- from the plaintiff. So, this issue is answered in favour of the Plaintiff and against the

Defendant.

12]ISSUE NO.2:

In issue No.1, I held that suit promissory note is true, valid and it is supported by consideration of Rs.25,00,000/-. So, in view of my finding in Issue No.1, I hold that the plaintiff is entitled to recover the suit amount from the defendant. So this issue is answered in favour of plaintiff and against the defendant.

O.S.385/2012 9 FAIR

IN THE RESULT, the suit is decreed with costs for a sum of

Rs.33,73,300/- (Rupees Thirty three lakhs Seventy Three thousands and three Hundred only) with subsequent interest at 6% per annum on Rs.25,00,000/- from the date of filing of the suit till the date of realization.

Dictated to the Stenographer, transcribed by her,

corrected by me and pronounced in open court this the 09th day of March, 2018.

III ADDL. DISTRICT JUDGE

GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:

P.W.1: Lagadapati Srinivasa Vara Prasad

P.W.2: T.Chenna Krishnaiah

FOR DEFENDANT:

D.W.1: Veluvolu Rajendra Babu

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1The original promissory note dated 30.05.2011 for a sum of Rs.25,00,000/- executed by the defendant in favour of the plaintiff.

Ex.A2The office copy of the notice dated 19.11.2012 sent to

Sub Registrar Office, Koritepadu by the plaintiff.

Ex.A3The Courier receipt showing sending of notice dated 19.11.2012 to Sub Registrar, Koretipadu, Guntur

Ex.A4The acknowledgment from the Sub registrar office,

Guntur.

Ex.A5The office copy of notice dated 03.01.2013 issued by the plaintiff to the defendant.

O.S.385/2012 10 FAIR

Ex.A6Reply notice dated 22.01.2013 issued by G.Tirupathi Rao.

Ex.A7The certified copy of IP 17/2013 on the file of I Additional

Senior Civil Judge’s Court, Guntur.

Ex.A8The certified copy of the Cheque dated 15.01.2013 issued by the defendant to the plaintiff.

Ex.A9The certified copy of the counter foil dated 16.01.2013 of the Karur Vysya Bank, Guntur.

Ex.A10The certified copy of the cheque return memo dated 18.01.2013.

Ex.A11The certified copy of the legal notice dated 24.01.2013 issued by the plaintiff to the defendant.

Ex.A12The certified copy of the postal receipt dated 24.01.2013.

Ex.A13The certified copy of return notice dated 29.01.2013 from the defendant.

Ex.A14The certified copy of the private complaint dated 28.02.2013 filed by the plaintiff against the defendant

U/s.138 N.I.Act in C.C.307/2014 on the file of Special

Judicial 1st Class Magistrate for Prohibition and Excise,

Guntur.

FOR DEFENDANT: - Nil-

III ADJ

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE :: GUNTUR.

PRESENT: Sri G. Gopichand,

Principal Sessions Judge, Guntur

Wednesday, this the 28th day of July, 2021

Crl.M.P.No. 1227 /2021

(Cr.No.566 of 2021 of Nallapadu P.S.)

Between:

1.Pikkili Nagendramma @ Nagendram, W/o Kotaiah @ Bala Kotaiah, C/Boya, 50 years, R/o Appapuram village, Nadendla Mandal, Guntur District, Now R/o Durga Nagar, Gorantla village, Guntur.

2.Pikkili @ Meenuga Veeramma, W/o Venkatanarasaiah, C/Boya, 25 years, R/o Durga Nagar, Gorantla village, Guntur district. …. Petitioners/Accused Nos.2 & 3 A N D

The State : SHO, Nallapadu P.S. …. Respondent/Complainant.

This petition is coming on this day for hearing before me through video conferencing (BlueJeans app) with the participation of Sri Ch. Isaiah, Advocate

for Petitioners/Accused Nos. 2 & 3, and the learned Public Prosecutor for the

State, and upon perusing the material available on record, this Court made the following:

O R D E R

This is the successive application filed u/secs.437 and 439

Cr.P.C seeking regular bail. The Petitioners are accused Nos.2 and 3 in

Cr.No.566/2021 of Nallapadu PS for the offence u/sec. 302 r/w 34 IPC.

2)The case of the prosecution in brief is as follows:

The deceased Nallabothula Venkateswarlu is the husband of

Accused No.1. Accused No.2 is the mother and Accused No.3 is the sister of Accused No.1 and they are residing in Gorantla area, Guntur

Rural mandal. The deceased was working as watchmen in an apartment and he used to suspect the fidelity of his wife Nallabothula

Ramalingamma i.e., Accused No.1 and frequently altercations took place between Accused No.1 and the deceased. The Accused Nos. 2 & 3 used to support Accused No.1. On 9.6.2021 at about 10.30 p.m., an altercation took place between the deceased and Accused No.1 and the deceased 2 beat Accused No.1 and in the meanwhile Accused Nos. 2 & 3 came there and they picked up altercation with the deceased and thereafter, Accused

Nos.1 to 3 decided to kill the deceased. So on 10.6.2021 when the deceased was sleeping, Accused No.1 put a cloth in his mouth in order to prevent him from shouting and she pressed the neck of the deceased with a chunni while Accused No.2 caught hold of the legs of the deceased and

Accused No.3 caught hold of the hands of the deceased for preventing him from moving. Thus, they killed the deceased by strangulating and suspecting that somebody was coming to that area, they ran away from that place. On the next day morning the dead body of the deceased was found with a cloth in his mouth and chunni around his neck. The report is given by mother of the deceased on 11.6.2021 and basing on her report, crime was registered. During the course of investigation Accused Nos. 1 to 3 were arrested and they clearly confessed that they committed the murder of the deceased.

3)The learned counsel for the petitioners argued that, the petitioners (Accused Nos.2 & 3) have nothing to do with the family disputes, if any, between the deceased and Accused No.1 and that the petitioners are falsely implicated in this case and that the material part of the investigation is completed, so the petitioners may be enlarged on bail.

4)The learned Public Prosecutor strongly objected for granting bail to the petitioners stating that the investigation is not yet completed, so, at this stage, the petitioners cannot be enlarged on bail.

3

5)Point that arises for consideration is,

Whether the petitioners/ accused Nos.2 and 3 are entitled to be enlarged on bail?

P O I N T :

6)Perused the record. As per the record it is clear that, the petitioners are involved in a grave offence and the earlier bail application filed by the petitioners/ accused Nos.2 and 3 in Crl.M.P.No.1039/2021 was dismissed on 29.6.2021 holding that the investigation was in progress by then. Still the investigation is in progress and if the petitioners are enlarged on bail at this stage, there is every possibility of interfering with the process of investigation. Moreover as per the remand report the petitioners herein actively assisted Accused No.1 in committing the murder of the deceased. So, at this stage, I am not inclined to grant bail to the petitioners.

7)IN THE RESULT, the petition is dismissed.

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

on this the 28th day of July, 2021.

(Sd/-) Sri G. Gopichand

PRINCIPAL SESSIONS JUDGE,

GUNTUR Copies to:

1. The Judl. Magistrate of I Class Spl. Mobile Court, Guntur

2. The S.H.O., Nallapadu P.S.

3. Sri Ch. Issaiah, Advocate for the petitioners

4. Public Prosecutor.

5. To any other concern. ( Copies to 1 to 5 shall be through e-mail, Whatsapp in PDF format)

6. Spare Copy to file.

IN THE COURT OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE :: GUNTUR

PRESENT: Sri G.Gopichand, B.Sc., M.A., LL.M.,

PRINCIPAL DISTRICT AND SESSIONS JUDGE, GUNTUR.

Tuesday, this the 24th day of August, 2021.

Crl.M.P.No.1348/2021

Between: Pothuguntla Prasanth, S/o.Pothuguntla Sambasiva Rao, Aged about 36 Yrs., R/o.3-17-19/2, 2nd Lane, Old Pattabhipuram, Guntur.… Petitioner/A5 -And-

State, Rep. by Inspector of Police, Nallapadu PS.… Respondent

This Anticipatory Bail Petition is filed under Section 438 of Cr.P.C., praying to grant anticipatory bail to the petitioner/A5 by directing the Police not to arrest the petitioner/A5.

This petition came up before me for hearing through video conferencing (Blue Jeans App) with the participation of Sri A.R.S.M., Advocate for the Petitioner/A5; and of Sri P.P., Advocate for Respondent; and upon perusing the material on record, and the matter having stood over till this day for consideration, this Court made the following DOCKET:

O R D E R

Counsel for the petitioner filed memo not pressing this petition. Memo recorded. Hence, the petition is dismissed.

Pronounced by me on this the 24th day of August, 2021.

Sd/- G.Gopichand

PRINCIPAL DISTRICT JUDGE,

GUNTUR.

Crl.M.P. No. 319/2018 in Crime No.76/2018

PILLA RANA PRATAP Vs SHO, ARUNDELPET PS

Date : 07-03-2018

In the result, the petition is allowed granting to the petitioner/ Accused No.2 on his executing a bond for Rs.10,000/- ( Rupees Ten thousand only) with two sureties for a like sum each to the satisfaction of the V Additional Junior Civil Judge, Guntur and on further condition to deposit the passport of the petitioners if any, before the V Additional Junior Civil Judge,Guntur.After release of the petitioners, they shall appear before the Station house Office, Arundelpet PS on every Monday , Wednesday, Friday between 3.00 PM and 7.00 PM for a period of Three weeks.