Sri G. Govinda Kesava Rao

1

IN THE COURT OF THE IV ADDITIONAL DISTRICT

JUDGE TANUKU

Present: Sri G. Govinda Kesava Rao IV Additional District Judge Tanuku

Thursday, this the 14th day of December, 2017.

Appeal Suit No.39/2015

(Old NO.22/2013)

This case is withdrawn and transferred to the Hon’ble IV Additional

District Court, Tanuku as per the proceedings of the Hon’ble District

Judge, West Godavari, Eluru, in Dis.No.7370, dated 15-10-2014.

Between:

1.Chimma Dharma Rao (died).

2.Chimma Bulliveeramma (died).

3.Chimma Venkata Ramana. . .. Appellants/Plaintiffs.

And

1.Chimma Gangaraju.

2.Chimma Ramachandra Rao.

3.Nagothu Venkanna.

. ..Respondents/Defendants.

On appeal against the decree and Judgment passed in OS

No.554/2003, on the file of I Additional Junior Civil Judge’s Court,

Tanuku, dated 21-01-2013.

Between:

1.Chimma Dharma Rao (died).

2.Chimma Bulliveeramma (died).

3.Chimma Venkata Ramana. . . . Plaintiff.

And

1.Chimma Gangaraju.

2.Chimma Ramachandra Rao.

3.Nagothu Venkanna. . . . Defendants.

The Appeal is coming on 22-11-2017, for hearing before me in the presence of Sri KSLN.Vidhyalankar, Advocate for Appellants/Plaintiffs and Sri V.Govinda Rao, Advocate for 2

Respondents/Defendants and Defendant No.3 died and upon hearing the arguments of both sides and perusing the record and having stood over for consideration till this day, the Court delivered the following:

JUDGMENT

1. This appeal is preferred by the Appellants/Plaintiffs against the Judgment and decree dated OS No.554/2003, on the file of

I Additional Junior Civil Judge’s Court, Tanuku, dated 21-01-2013, to set aside the Lower Court Judgment and to allow the appeal with costs.

2. Suit is filed for grant of permanent injunction restraining the defendants 1 to 3 and their men and followers from ever interfering with the peaceful possession and enjoyment of the right of passage PP1 QQ1 to reach his exclusive site shown as AA1 CC1 of the plaint plan in any manner and for costs of the suit.

3. The averments of the plaint filed by the plaintiff are as follows: that the plaintiff Chimma Dharma Rao is the absolute owner of the plaint schedule property i.e., an extent of 50 sq. , of site 25 yards in length 2 yards width of the lane, the plan is filed along with the plaint herein after referred as ‘plaint plan’ the said lane is shown as PP1 QQ1’ which is having access to A1 B1 C1 C’ of property. the plaintiff is absolute owner and he purchased under registered sale deed dated 26-11-65 the said property shown as ‘ABCD’ in the plain 3 plan purchased from Paladugula Ramulu, the eastern part of it which is an extent of 4 cents shown as AB A1 B1 CD’. The A1 B1 CC1’ is kept by plaintiff for his cattle shed and also planted coconut plants.

The plaintiff is enjoying ‘A1B1 CC1’ peacefully without any obstructions since 1965. The defendant No.1 and 2 are brother’s sons of plaintiff and 3rd defendant and 3rd defendant is brother in law of D.1 and D.2 . there is a joint site towards west of the property of plaintiff.

The said property is not divided till so far and it is a joint property of

D.1, D.2 plaintiff-Chimma Rao son by name Venkata Raman and father of D.1 and D.2. D.1 and D.2 constructed a house as a shown in plaint plan. Venkata Ramana constructed a thatched in that property leaving space on north, an extent of 2 yards width of passage is an exclusive enjoyment of plaintiff under sale deed even from the purchase of the property by the plaintiff No.1. the said passage is using by by the plaintiff for their ingress and egress to reach the site got by him as shown in the plaint plan except the disputed lane there is no other way to reach road towards west of the plaintiff from

A1B1CC1 marked portion. While the matter stood thus D.1 D.2 and the plaintiff got differences and the plaintiff demanded for partition of the joint family site fell in PQRS’ marked portion of the plaint plan

D.1 and D.2 at the instance of D.3 objecting the plaintiff to reach road on the west through the site A1 B1 CC1’ marked portion. Therefore, the plaintiff file present suit for injunction not to interfere with the peaceful possession and enjoyment of PP1 Q1 Q’ marked portion of the property to reach the property of the plaintiff. After death of 1st 4 plaintiff, plaintiffs No.2 and 3 are added as per the orders of

IA.476/06. Hence the suit.

4. The defendant No.1 denied the allegations made by the plaint. The relationship as stated in the plaint is not correct. The plaintiff has no easementary right like right of access as claimed by the plaintiff. The defendant is in possession of A1 B1 C1 C’ marked portion even from the date of predecessor of D.1 and D.2 that is more than 20 years. So, the defendants are perfected their title. The properties are not liable for partition and the plaintiff has no pathway shown as PP1Q1Q’ marked portion of the plaint plan. Therefore, there is no cause of action to file the present suit before the Court.

5. The defendant No.l1 filed his additional written statement stating that : The 1st plaintiff died intestate leaving behind the 2nd plaintiff as Class-1, heir as stated by the plaintiff Nos.2, the 3rd plaintiff legatee of the will dated 01-11-2004 executed by 2nd plaintiff as such the 3rd plaintiff contesting the suit, as the legal representatives of the plaintiff as stated by the plaintiff. The suit itself is not maintainable and the suit is liable to be dismissed.

6. Defendants 2 and 3 filed a memo before this Court adopting the written statement filed by D.2.

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7. Basing on the above pleadings the following issues are settled for trial:

1)Whether the plaintiffs entitled permanent injunction as prayed for?

2)To what relief?

8. On behalf of the plaintiff, PWs.1 to 3 examined got marked Exs.A.1 to A.3. On behalf of defendants DW.1 to 4 examined and no documents marked.

9. Upon considering the available evidence on record, the

Lower Court decreed the suit and the unsuccessful

Appellant/plaintiffs is now in appeal.

10. The ground of appeal are as follows:

The trial court is contrary to law, weight of evidence and probabilities of the case and failed to appreciate the documentary and oral evidence placed before it and came to a wrong conclusion and examined PWs.2 and 3 for the purpose of proving Ex.A.4 and A2 wills and commenting that the PWs.2 and 3 were not able to speak about the number of pages contained by the Wills covered under

Exs.A.2 and A.4 basing on the same. The lower court failed to observe that the appellant/3rd plaintiff has no other passage except

PP1QQ1 to reach A.1 B.1 CC1 site and failed to read the commissioners report in its right perspective and the findings of the lower Court and there is no possibility to ingress and agress PP1 QQ1 6 of plaint plan are not based on sound principles of law and noted passage PP1 QQ1 in dotted lines in his report and the lower court also failed to notice that the learned commissioner did not mention any where in his report that the existence of coconut trees causes any inconvenience to anybody to pass through PP1 QQ1 and that 3rd plaintiff in his evidence and in the said state of affairs it is not proper on the part of the lower court to comment that the plaintiffs/appellants did not state as to when their right of the passage was infringed by the defendants/respondents. the discussion of the lower court on issue NOs.1 and 2 is not convincing and the discussion of the lower court on the wills marked as Exs.A.2 and A.4 is also not up to mark and the disbelieving of Wills covered under Exs.A.2 and

A.4 basing on the memory of PWs.2 and 3 is not at all acceptable since the PWs.2 and 3 are illiterates and as such the said discussion by the lower court is nothing but erroneous. The finding of the lower court that the plaintiffs have not come before the Court with clean hands it not correct and there is no corroboration in the evidence of the defendants and that the defendants did not file any documents to disprove that the plaintiffs/appellants have no right of passage in PP1

QQ1 of plaint plan and such an attitude on the part of the lower court is not proper in view of several decisions rendered by the Apex Court of India. The conclusion of the lower court that the appellant did not approach the lower court with clean hands is contrary to their evidence on record. Therefore they prays to allow the appeal with costs.

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11. Heard. No oral and documentary evidence is adduced on either side.

12. Now the point for consideration is:

Whether the lower court has committed in any irregularity or illegality in dismissing the suit for the interference of this appellate court?

13. POINT:

This appeal is filed by the appellants/plaintiffs against the decree and Judgment in OS No.554/2003, dated 21-01-2013, on the file of I Additional Junior Civil Judge’s Court, Tanuku. The

Appellants/plaintiffs filed the suit for permanent injunction against the respondents/ defendants 1 to 3. To prove the case of the plaintiff, the plaintiff relied on the evidence of PW.1 and Exs.A.1 to A.3 marked. For the defendants DWs.1 to 4 examined and no documents marked. Upon considering the available evidence on record, the

Lower Court dismissed the suit. The un-successful plaintiff is now in appeal.

14. Heard.

15. To prove the case of the plaintiff, the plaintiff relied on the evidence of PW.1 to 3 and Exs.A.1 to A4 marked, PW.1 in his evidence he deposed that the suit is filed for permanent injunction against defendants for ever interfering with his right of passage in

PP1, QQ1 to reach his case of the plaintiff site of A.1 B1 CC1 of 8 plaint plan in any manner. The 2nd plaintiff who died on 07-12-2004 and his legal representatives are added. The plaint plan property shown as PQRS is the joint family property got by 1st plaintiff his father Rama Rao & D1, D2 and father Satti Raju the plaint plan

ABCD property was purchased by the 1st plaintiff under sale deed

dated 26-11-1965 from Paladugu people which is his exclusive

property, out of the extent of Ac.0.50 cents some property was shown and the remaining property is Ac.0.04 cents to reach that property.

PP1 QQ1 in the site of the plaintiff in plaint plan and it was width of 2 yds and 25 yds of length and the said joint way is also used as why to the exclusive site of the 1st plaintiff property A1B1CC1 site and there is no other way except the said lane. The PQRS plaint plan property is an ancestral property and it is not divided by metes and bounds and using convienently by the sharers. Ex.A.1 is original sale deed dated 26-11-1965 executed by V.Surya Rao infavour of 1st plaijntiff

Ch.Dharma Rao, Ex.A.2 is the unregistered will, dated 01-11-2004 executed by 2nd plaintiff, Buli Veeramma infavour of 3rd plaintiff,

Ex.A.3 is the CC of registered sale deed, dated 12-06-1960 executed by Ch.Venkata Subbamma infavour of Ch.Venkanna, and Ex.A.4 is the registered Will dated 06-06-2011 executed by 1st plaintiff infavour of PW.1. the defendant DW.1 in his evidence stated that he denied all the allegations made in the plaint as well as plaintiff and DW.1 and further submitted that AA1 CC1 is in possession and enjoyment of himself and 2nd defendant and predecessors in title for more than 30 years and they have perfected their title, that the said ancestral property is in exclusive possession and enjoyment of himself and 2nd 9 defendant and Venkata Ramana and their predecessors in title. There is no passage left and it is only meant for himself and 2nd defendant and that the 3rd defendant has no manner of right whatsoever and he has set up two alleged wills which are not genuine and the 3rd plaintiff has not come to the court with clean hands and there are no bonafiedies on his part and his version is quiet inconsistent. So, the suit is not maintainable. PWs.2 and 3 also stated the same as stated by

PW.1 that A1B1 CC1 is in possession and enjoyment of the plaint plan. So after considering the oral and documentary evidence of

PW.1 and considering the documents Ex.A.3 there is a recital with regard to joint lane and there 9 cents of lane. But Ex.A.1 is sale deed

dated 26-11-1965 executed by V.Surya Rao infavour of 1st plaintiff

does not contain about the said lane, Ex.A.3 is of the year 1960,

Ex.A.1 is of the year 1965. Therefore, the defendants are claimed right a plaintiff is claiming on Ex.A.1 showing that PP1 AA1 site is a shown in plaint plan is a passage to reach the Ac.0.04 cents of lane i.e., A1B1C1 and C. So, the evidence of plaintiffs and also on the defendants has not given any clear picture with regard to the existence of passage to reach the Ac.0.04 cents land belong to the plaintiff. But an Advocate Commissioner was appointed in this case and he filed the report which is not disputed by both parties, the report is on 07-08-2003 both parties did not file any objections on the

Advocate Commissioner Report. He has identified the suit schedule passage, but the demarcating as two items of defendants is one and

OPIM is one and PWDI is another, the total passage is shown by the plaintiff in the plaint schedule property. So, as per the commissioner 10 report the disputed passage is divided into pass in the eastern portion.

There are two coconut trees he found and a water tap belongs to the defendants and OPIM passage. So, according to him if the OPIM marked passage is an extended to eastern site, the water tap and coconut trees will be in the site. He was also given measurements and age of the coconut trees as 10 years and also he stated that a water tap installed by the Grampanchayath and there a Chapta measuring 5 x 5’ and the said flatform is not a new one is about 3 to 4 years prior to his visit. So, the disputed passage is not in existing as shown in the plaint plan by the plaintiff to the eastern side of the passage which is in possession and enjoyment of the defendant. But there is no evidence on behalf of the appellants/plaintiffs that he has got right and he has been using the passage as on the date of filing of the suit. The suit is filed simplecitor for permanent injunction, the plaintiff has to establish that he is in possession and enjoyment over the plaint schedule property. But according to an Advocate Commissioner half of the passage on eastern side is in possession and enjoyment of the respondents/defendants with two coconut trees and water tap with

Chapta and other things. So, the question of using the said passage by the appellant/plaintiffs does not arise. The plaintiff did not choose to cross examine the Advocate Commissioner and no objections are filed on the Advocate Commissioner report. So I do not find any other reason to disbelieve the Advocate Commissioner Report to prove that the plaintiff is not in possession and enjoyment of the PQRS passage as on the date of filing the suit. So, since the appellants/plaintiffs is in possession and enjoyment of the half of the portion of the disputed 11 passage which is in possession and enjoyment of the respondent/defendants, the appellant/plaintiff is not entitle for permanent injunction as prayed for. Therefore, considering all these evidence coupled with an Advocate Commissioner the Lower Court dismissed the suit in correct perspective. So, that I do not find any illegality and irregularity the lower court judgment in the findings on the lower court which does not require any interference of this

Appellate Court. Accordingly, the point is answered.

16. In the result, the appeal is dismissed with costs throughout.

Dictated to the Personal Assistant, transcribed by her,

corrected and pronounced by me in open court, this the 14 th day of December, 2017.

IV Addl. District Judge, Tanuku.

NO ORAL AND DOCUMENTARY EVIDENCE IS ADDUCED ON

EITHER SIDE

IV ADJ, Tanuku.

1

IN THE COURT OF THE IV ADDITIONAL DISTRICT

JUDGE TANUKU

Present: Sri G. Govinda Kesava Rao IV Additional District Judge Tanuku

Thursday, this the 14th day of December, 2017.

Appeal Suit No.39/2015

(Old NO.22/2013)

This case is withdrawn and transferred to the Hon’ble IV Additional

District Court, Tanuku as per the proceedings of the Hon’ble District

Judge, West Godavari, Eluru, in Dis.No.7370, dated 15-10-2014.

Between:

1.Chimma Dharma Rao (died).

2.Chimma Bulliveeramma (died).

3.Chimma Venkata Ramana. . .. Appellants/Plaintiffs.

And

1.Chimma Gangaraju.

2.Chimma Ramachandra Rao.

3.Nagothu Venkanna.

. ..Respondents/Defendants.

On appeal against the decree and Judgment passed in OS

No.554/2003, on the file of I Additional Junior Civil Judge’s Court,

Tanuku, dated 21-01-2013.

Between:

1.Chimma Dharma Rao (died).

2.Chimma Bulliveeramma (died).

3.Chimma Venkata Ramana. . . . Plaintiff.

And

1.Chimma Gangaraju.

2.Chimma Ramachandra Rao.

3.Nagothu Venkanna. . . . Defendants.

The Appeal is coming on 22-11-2017, for hearing before me in the presence of Sri KSLN.Vidhyalankar, Advocate for Appellants/Plaintiffs and Sri V.Govinda Rao, Advocate for 2

Respondents/Defendants and Defendant No.3 died and upon hearing the arguments of both sides and perusing the record and having stood over for consideration till this day, the Court delivered the following:

JUDGMENT

1. This appeal is preferred by the Appellants/Plaintiffs against the Judgment and decree dated OS No.554/2003, on the file of

I Additional Junior Civil Judge’s Court, Tanuku, dated 21-01-2013, to set aside the Lower Court Judgment and to allow the appeal with costs.

2. Suit is filed for grant of permanent injunction restraining the defendants 1 to 3 and their men and followers from ever interfering with the peaceful possession and enjoyment of the right of passage PP1 QQ1 to reach his exclusive site shown as AA1 CC1 of the plaint plan in any manner and for costs of the suit.

3. The averments of the plaint filed by the plaintiff are as follows: that the plaintiff Chimma Dharma Rao is the absolute owner of the plaint schedule property i.e., an extent of 50 sq. , of site 25 yards in length 2 yards width of the lane, the plan is filed along with the plaint herein after referred as ‘plaint plan’ the said lane is shown as PP1 QQ1’ which is having access to A1 B1 C1 C’ of property. the plaintiff is absolute owner and he purchased under registered sale deed dated 26-11-65 the said property shown as ‘ABCD’ in the plain 3 plan purchased from Paladugula Ramulu, the eastern part of it which is an extent of 4 cents shown as AB A1 B1 CD’. The A1 B1 CC1’ is kept by plaintiff for his cattle shed and also planted coconut plants.

The plaintiff is enjoying ‘A1B1 CC1’ peacefully without any obstructions since 1965. The defendant No.1 and 2 are brother’s sons of plaintiff and 3rd defendant and 3rd defendant is brother in law of D.1 and D.2 . there is a joint site towards west of the property of plaintiff.

The said property is not divided till so far and it is a joint property of

D.1, D.2 plaintiff-Chimma Rao son by name Venkata Raman and father of D.1 and D.2. D.1 and D.2 constructed a house as a shown in plaint plan. Venkata Ramana constructed a thatched in that property leaving space on north, an extent of 2 yards width of passage is an exclusive enjoyment of plaintiff under sale deed even from the purchase of the property by the plaintiff No.1. the said passage is using by by the plaintiff for their ingress and egress to reach the site got by him as shown in the plaint plan except the disputed lane there is no other way to reach road towards west of the plaintiff from

A1B1CC1 marked portion. While the matter stood thus D.1 D.2 and the plaintiff got differences and the plaintiff demanded for partition of the joint family site fell in PQRS’ marked portion of the plaint plan

D.1 and D.2 at the instance of D.3 objecting the plaintiff to reach road on the west through the site A1 B1 CC1’ marked portion. Therefore, the plaintiff file present suit for injunction not to interfere with the peaceful possession and enjoyment of PP1 Q1 Q’ marked portion of the property to reach the property of the plaintiff. After death of 1st 4 plaintiff, plaintiffs No.2 and 3 are added as per the orders of

IA.476/06. Hence the suit.

4. The defendant No.1 denied the allegations made by the plaint. The relationship as stated in the plaint is not correct. The plaintiff has no easementary right like right of access as claimed by the plaintiff. The defendant is in possession of A1 B1 C1 C’ marked portion even from the date of predecessor of D.1 and D.2 that is more than 20 years. So, the defendants are perfected their title. The properties are not liable for partition and the plaintiff has no pathway shown as PP1Q1Q’ marked portion of the plaint plan. Therefore, there is no cause of action to file the present suit before the Court.

5. The defendant No.l1 filed his additional written statement stating that : The 1st plaintiff died intestate leaving behind the 2nd plaintiff as Class-1, heir as stated by the plaintiff Nos.2, the 3rd plaintiff legatee of the will dated 01-11-2004 executed by 2nd plaintiff as such the 3rd plaintiff contesting the suit, as the legal representatives of the plaintiff as stated by the plaintiff. The suit itself is not maintainable and the suit is liable to be dismissed.

6. Defendants 2 and 3 filed a memo before this Court adopting the written statement filed by D.2.

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7. Basing on the above pleadings the following issues are settled for trial:

1)Whether the plaintiffs entitled permanent injunction as prayed for?

2)To what relief?

8. On behalf of the plaintiff, PWs.1 to 3 examined got marked Exs.A.1 to A.3. On behalf of defendants DW.1 to 4 examined and no documents marked.

9. Upon considering the available evidence on record, the

Lower Court decreed the suit and the unsuccessful

Appellant/plaintiffs is now in appeal.

10. The ground of appeal are as follows:

The trial court is contrary to law, weight of evidence and probabilities of the case and failed to appreciate the documentary and oral evidence placed before it and came to a wrong conclusion and examined PWs.2 and 3 for the purpose of proving Ex.A.4 and A2 wills and commenting that the PWs.2 and 3 were not able to speak about the number of pages contained by the Wills covered under

Exs.A.2 and A.4 basing on the same. The lower court failed to observe that the appellant/3rd plaintiff has no other passage except

PP1QQ1 to reach A.1 B.1 CC1 site and failed to read the commissioners report in its right perspective and the findings of the lower Court and there is no possibility to ingress and agress PP1 QQ1 6 of plaint plan are not based on sound principles of law and noted passage PP1 QQ1 in dotted lines in his report and the lower court also failed to notice that the learned commissioner did not mention any where in his report that the existence of coconut trees causes any inconvenience to anybody to pass through PP1 QQ1 and that 3rd plaintiff in his evidence and in the said state of affairs it is not proper on the part of the lower court to comment that the plaintiffs/appellants did not state as to when their right of the passage was infringed by the defendants/respondents. the discussion of the lower court on issue NOs.1 and 2 is not convincing and the discussion of the lower court on the wills marked as Exs.A.2 and A.4 is also not up to mark and the disbelieving of Wills covered under Exs.A.2 and

A.4 basing on the memory of PWs.2 and 3 is not at all acceptable since the PWs.2 and 3 are illiterates and as such the said discussion by the lower court is nothing but erroneous. The finding of the lower court that the plaintiffs have not come before the Court with clean hands it not correct and there is no corroboration in the evidence of the defendants and that the defendants did not file any documents to disprove that the plaintiffs/appellants have no right of passage in PP1

QQ1 of plaint plan and such an attitude on the part of the lower court is not proper in view of several decisions rendered by the Apex Court of India. The conclusion of the lower court that the appellant did not approach the lower court with clean hands is contrary to their evidence on record. Therefore they prays to allow the appeal with costs.

7

11. Heard. No oral and documentary evidence is adduced on either side.

12. Now the point for consideration is:

Whether the lower court has committed in any irregularity or illegality in dismissing the suit for the interference of this appellate court?

13. POINT:

This appeal is filed by the appellants/plaintiffs against the decree and Judgment in OS No.554/2003, dated 21-01-2013, on the file of I Additional Junior Civil Judge’s Court, Tanuku. The

Appellants/plaintiffs filed the suit for permanent injunction against the respondents/ defendants 1 to 3. To prove the case of the plaintiff, the plaintiff relied on the evidence of PW.1 and Exs.A.1 to A.3 marked. For the defendants DWs.1 to 4 examined and no documents marked. Upon considering the available evidence on record, the

Lower Court dismissed the suit. The un-successful plaintiff is now in appeal.

14. Heard.

15. To prove the case of the plaintiff, the plaintiff relied on the evidence of PW.1 to 3 and Exs.A.1 to A4 marked, PW.1 in his evidence he deposed that the suit is filed for permanent injunction against defendants for ever interfering with his right of passage in

PP1, QQ1 to reach his case of the plaintiff site of A.1 B1 CC1 of 8 plaint plan in any manner. The 2nd plaintiff who died on 07-12-2004 and his legal representatives are added. The plaint plan property shown as PQRS is the joint family property got by 1st plaintiff his father Rama Rao & D1, D2 and father Satti Raju the plaint plan

ABCD property was purchased by the 1st plaintiff under sale deed

dated 26-11-1965 from Paladugu people which is his exclusive

property, out of the extent of Ac.0.50 cents some property was shown and the remaining property is Ac.0.04 cents to reach that property.

PP1 QQ1 in the site of the plaintiff in plaint plan and it was width of 2 yds and 25 yds of length and the said joint way is also used as why to the exclusive site of the 1st plaintiff property A1B1CC1 site and there is no other way except the said lane. The PQRS plaint plan property is an ancestral property and it is not divided by metes and bounds and using convienently by the sharers. Ex.A.1 is original sale deed dated 26-11-1965 executed by V.Surya Rao infavour of 1st plaijntiff

Ch.Dharma Rao, Ex.A.2 is the unregistered will, dated 01-11-2004 executed by 2nd plaintiff, Buli Veeramma infavour of 3rd plaintiff,

Ex.A.3 is the CC of registered sale deed, dated 12-06-1960 executed by Ch.Venkata Subbamma infavour of Ch.Venkanna, and Ex.A.4 is the registered Will dated 06-06-2011 executed by 1st plaintiff infavour of PW.1. the defendant DW.1 in his evidence stated that he denied all the allegations made in the plaint as well as plaintiff and DW.1 and further submitted that AA1 CC1 is in possession and enjoyment of himself and 2nd defendant and predecessors in title for more than 30 years and they have perfected their title, that the said ancestral property is in exclusive possession and enjoyment of himself and 2nd 9 defendant and Venkata Ramana and their predecessors in title. There is no passage left and it is only meant for himself and 2nd defendant and that the 3rd defendant has no manner of right whatsoever and he has set up two alleged wills which are not genuine and the 3rd plaintiff has not come to the court with clean hands and there are no bonafiedies on his part and his version is quiet inconsistent. So, the suit is not maintainable. PWs.2 and 3 also stated the same as stated by

PW.1 that A1B1 CC1 is in possession and enjoyment of the plaint plan. So after considering the oral and documentary evidence of

PW.1 and considering the documents Ex.A.3 there is a recital with regard to joint lane and there 9 cents of lane. But Ex.A.1 is sale deed

dated 26-11-1965 executed by V.Surya Rao infavour of 1st plaintiff

does not contain about the said lane, Ex.A.3 is of the year 1960,

Ex.A.1 is of the year 1965. Therefore, the defendants are claimed right a plaintiff is claiming on Ex.A.1 showing that PP1 AA1 site is a shown in plaint plan is a passage to reach the Ac.0.04 cents of lane i.e., A1B1C1 and C. So, the evidence of plaintiffs and also on the defendants has not given any clear picture with regard to the existence of passage to reach the Ac.0.04 cents land belong to the plaintiff. But an Advocate Commissioner was appointed in this case and he filed the report which is not disputed by both parties, the report is on 07-08-2003 both parties did not file any objections on the

Advocate Commissioner Report. He has identified the suit schedule passage, but the demarcating as two items of defendants is one and

OPIM is one and PWDI is another, the total passage is shown by the plaintiff in the plaint schedule property. So, as per the commissioner 10 report the disputed passage is divided into pass in the eastern portion.

There are two coconut trees he found and a water tap belongs to the defendants and OPIM passage. So, according to him if the OPIM marked passage is an extended to eastern site, the water tap and coconut trees will be in the site. He was also given measurements and age of the coconut trees as 10 years and also he stated that a water tap installed by the Grampanchayath and there a Chapta measuring 5 x 5’ and the said flatform is not a new one is about 3 to 4 years prior to his visit. So, the disputed passage is not in existing as shown in the plaint plan by the plaintiff to the eastern side of the passage which is in possession and enjoyment of the defendant. But there is no evidence on behalf of the appellants/plaintiffs that he has got right and he has been using the passage as on the date of filing of the suit. The suit is filed simplecitor for permanent injunction, the plaintiff has to establish that he is in possession and enjoyment over the plaint schedule property. But according to an Advocate Commissioner half of the passage on eastern side is in possession and enjoyment of the respondents/defendants with two coconut trees and water tap with

Chapta and other things. So, the question of using the said passage by the appellant/plaintiffs does not arise. The plaintiff did not choose to cross examine the Advocate Commissioner and no objections are filed on the Advocate Commissioner report. So I do not find any other reason to disbelieve the Advocate Commissioner Report to prove that the plaintiff is not in possession and enjoyment of the PQRS passage as on the date of filing the suit. So, since the appellants/plaintiffs is in possession and enjoyment of the half of the portion of the disputed 11 passage which is in possession and enjoyment of the respondent/defendants, the appellant/plaintiff is not entitle for permanent injunction as prayed for. Therefore, considering all these evidence coupled with an Advocate Commissioner the Lower Court dismissed the suit in correct perspective. So, that I do not find any illegality and irregularity the lower court judgment in the findings on the lower court which does not require any interference of this

Appellate Court. Accordingly, the point is answered.

16. In the result, the appeal is dismissed with costs throughout.

Dictated to the Personal Assistant, transcribed by her,

corrected and pronounced by me in open court, this the 14 th day of December, 2017.

IV Addl. District Judge, Tanuku.

NO ORAL AND DOCUMENTARY EVIDENCE IS ADDUCED ON

EITHER SIDE

IV ADJ, Tanuku.

1

IN THE COURT OF THE IV ADDITIONAL DISTRICT

JUDGE TANUKU

Present: Sri G. Govinda Kesava Rao IV Additional District Judge Tanuku

Thursday, this the 14th day of December, 2017.

Appeal Suit No.39/2015

(Old NO.22/2013)

This case is withdrawn and transferred to the Hon’ble IV Additional

District Court, Tanuku as per the proceedings of the Hon’ble District

Judge, West Godavari, Eluru, in Dis.No.7370, dated 15-10-2014.

Between:

1.Chimma Dharma Rao (died).

2.Chimma Bulliveeramma (died).

3.Chimma Venkata Ramana. . .. Appellants/Plaintiffs.

And

1.Chimma Gangaraju.

2.Chimma Ramachandra Rao.

3.Nagothu Venkanna.

. ..Respondents/Defendants.

On appeal against the decree and Judgment passed in OS

No.554/2003, on the file of I Additional Junior Civil Judge’s Court,

Tanuku, dated 21-01-2013.

Between:

1.Chimma Dharma Rao (died).

2.Chimma Bulliveeramma (died).

3.Chimma Venkata Ramana. . . . Plaintiff.

And

1.Chimma Gangaraju.

2.Chimma Ramachandra Rao.

3.Nagothu Venkanna. . . . Defendants.

The Appeal is coming on 22-11-2017, for hearing before me in the presence of Sri KSLN.Vidhyalankar, Advocate for Appellants/Plaintiffs and Sri V.Govinda Rao, Advocate for 2

Respondents/Defendants and Defendant No.3 died and upon hearing the arguments of both sides and perusing the record and having stood over for consideration till this day, the Court delivered the following:

JUDGMENT

1. This appeal is preferred by the Appellants/Plaintiffs against the Judgment and decree dated OS No.554/2003, on the file of

I Additional Junior Civil Judge’s Court, Tanuku, dated 21-01-2013, to set aside the Lower Court Judgment and to allow the appeal with costs.

2. Suit is filed for grant of permanent injunction restraining the defendants 1 to 3 and their men and followers from ever interfering with the peaceful possession and enjoyment of the right of passage PP1 QQ1 to reach his exclusive site shown as AA1 CC1 of the plaint plan in any manner and for costs of the suit.

3. The averments of the plaint filed by the plaintiff are as follows: that the plaintiff Chimma Dharma Rao is the absolute owner of the plaint schedule property i.e., an extent of 50 sq. , of site 25 yards in length 2 yards width of the lane, the plan is filed along with the plaint herein after referred as ‘plaint plan’ the said lane is shown as PP1 QQ1’ which is having access to A1 B1 C1 C’ of property. the plaintiff is absolute owner and he purchased under registered sale deed dated 26-11-65 the said property shown as ‘ABCD’ in the plain 3 plan purchased from Paladugula Ramulu, the eastern part of it which is an extent of 4 cents shown as AB A1 B1 CD’. The A1 B1 CC1’ is kept by plaintiff for his cattle shed and also planted coconut plants.

The plaintiff is enjoying ‘A1B1 CC1’ peacefully without any obstructions since 1965. The defendant No.1 and 2 are brother’s sons of plaintiff and 3rd defendant and 3rd defendant is brother in law of D.1 and D.2 . there is a joint site towards west of the property of plaintiff.

The said property is not divided till so far and it is a joint property of

D.1, D.2 plaintiff-Chimma Rao son by name Venkata Raman and father of D.1 and D.2. D.1 and D.2 constructed a house as a shown in plaint plan. Venkata Ramana constructed a thatched in that property leaving space on north, an extent of 2 yards width of passage is an exclusive enjoyment of plaintiff under sale deed even from the purchase of the property by the plaintiff No.1. the said passage is using by by the plaintiff for their ingress and egress to reach the site got by him as shown in the plaint plan except the disputed lane there is no other way to reach road towards west of the plaintiff from

A1B1CC1 marked portion. While the matter stood thus D.1 D.2 and the plaintiff got differences and the plaintiff demanded for partition of the joint family site fell in PQRS’ marked portion of the plaint plan

D.1 and D.2 at the instance of D.3 objecting the plaintiff to reach road on the west through the site A1 B1 CC1’ marked portion. Therefore, the plaintiff file present suit for injunction not to interfere with the peaceful possession and enjoyment of PP1 Q1 Q’ marked portion of the property to reach the property of the plaintiff. After death of 1st 4 plaintiff, plaintiffs No.2 and 3 are added as per the orders of

IA.476/06. Hence the suit.

4. The defendant No.1 denied the allegations made by the plaint. The relationship as stated in the plaint is not correct. The plaintiff has no easementary right like right of access as claimed by the plaintiff. The defendant is in possession of A1 B1 C1 C’ marked portion even from the date of predecessor of D.1 and D.2 that is more than 20 years. So, the defendants are perfected their title. The properties are not liable for partition and the plaintiff has no pathway shown as PP1Q1Q’ marked portion of the plaint plan. Therefore, there is no cause of action to file the present suit before the Court.

5. The defendant No.l1 filed his additional written statement stating that : The 1st plaintiff died intestate leaving behind the 2nd plaintiff as Class-1, heir as stated by the plaintiff Nos.2, the 3rd plaintiff legatee of the will dated 01-11-2004 executed by 2nd plaintiff as such the 3rd plaintiff contesting the suit, as the legal representatives of the plaintiff as stated by the plaintiff. The suit itself is not maintainable and the suit is liable to be dismissed.

6. Defendants 2 and 3 filed a memo before this Court adopting the written statement filed by D.2.

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7. Basing on the above pleadings the following issues are settled for trial:

1)Whether the plaintiffs entitled permanent injunction as prayed for?

2)To what relief?

8. On behalf of the plaintiff, PWs.1 to 3 examined got marked Exs.A.1 to A.3. On behalf of defendants DW.1 to 4 examined and no documents marked.

9. Upon considering the available evidence on record, the

Lower Court decreed the suit and the unsuccessful

Appellant/plaintiffs is now in appeal.

10. The ground of appeal are as follows:

The trial court is contrary to law, weight of evidence and probabilities of the case and failed to appreciate the documentary and oral evidence placed before it and came to a wrong conclusion and examined PWs.2 and 3 for the purpose of proving Ex.A.4 and A2 wills and commenting that the PWs.2 and 3 were not able to speak about the number of pages contained by the Wills covered under

Exs.A.2 and A.4 basing on the same. The lower court failed to observe that the appellant/3rd plaintiff has no other passage except

PP1QQ1 to reach A.1 B.1 CC1 site and failed to read the commissioners report in its right perspective and the findings of the lower Court and there is no possibility to ingress and agress PP1 QQ1 6 of plaint plan are not based on sound principles of law and noted passage PP1 QQ1 in dotted lines in his report and the lower court also failed to notice that the learned commissioner did not mention any where in his report that the existence of coconut trees causes any inconvenience to anybody to pass through PP1 QQ1 and that 3rd plaintiff in his evidence and in the said state of affairs it is not proper on the part of the lower court to comment that the plaintiffs/appellants did not state as to when their right of the passage was infringed by the defendants/respondents. the discussion of the lower court on issue NOs.1 and 2 is not convincing and the discussion of the lower court on the wills marked as Exs.A.2 and A.4 is also not up to mark and the disbelieving of Wills covered under Exs.A.2 and

A.4 basing on the memory of PWs.2 and 3 is not at all acceptable since the PWs.2 and 3 are illiterates and as such the said discussion by the lower court is nothing but erroneous. The finding of the lower court that the plaintiffs have not come before the Court with clean hands it not correct and there is no corroboration in the evidence of the defendants and that the defendants did not file any documents to disprove that the plaintiffs/appellants have no right of passage in PP1

QQ1 of plaint plan and such an attitude on the part of the lower court is not proper in view of several decisions rendered by the Apex Court of India. The conclusion of the lower court that the appellant did not approach the lower court with clean hands is contrary to their evidence on record. Therefore they prays to allow the appeal with costs.

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11. Heard. No oral and documentary evidence is adduced on either side.

12. Now the point for consideration is:

Whether the lower court has committed in any irregularity or illegality in dismissing the suit for the interference of this appellate court?

13. POINT:

This appeal is filed by the appellants/plaintiffs against the decree and Judgment in OS No.554/2003, dated 21-01-2013, on the file of I Additional Junior Civil Judge’s Court, Tanuku. The

Appellants/plaintiffs filed the suit for permanent injunction against the respondents/ defendants 1 to 3. To prove the case of the plaintiff, the plaintiff relied on the evidence of PW.1 and Exs.A.1 to A.3 marked. For the defendants DWs.1 to 4 examined and no documents marked. Upon considering the available evidence on record, the

Lower Court dismissed the suit. The un-successful plaintiff is now in appeal.

14. Heard.

15. To prove the case of the plaintiff, the plaintiff relied on the evidence of PW.1 to 3 and Exs.A.1 to A4 marked, PW.1 in his evidence he deposed that the suit is filed for permanent injunction against defendants for ever interfering with his right of passage in

PP1, QQ1 to reach his case of the plaintiff site of A.1 B1 CC1 of 8 plaint plan in any manner. The 2nd plaintiff who died on 07-12-2004 and his legal representatives are added. The plaint plan property shown as PQRS is the joint family property got by 1st plaintiff his father Rama Rao & D1, D2 and father Satti Raju the plaint plan

ABCD property was purchased by the 1st plaintiff under sale deed

dated 26-11-1965 from Paladugu people which is his exclusive

property, out of the extent of Ac.0.50 cents some property was shown and the remaining property is Ac.0.04 cents to reach that property.

PP1 QQ1 in the site of the plaintiff in plaint plan and it was width of 2 yds and 25 yds of length and the said joint way is also used as why to the exclusive site of the 1st plaintiff property A1B1CC1 site and there is no other way except the said lane. The PQRS plaint plan property is an ancestral property and it is not divided by metes and bounds and using convienently by the sharers. Ex.A.1 is original sale deed dated 26-11-1965 executed by V.Surya Rao infavour of 1st plaijntiff

Ch.Dharma Rao, Ex.A.2 is the unregistered will, dated 01-11-2004 executed by 2nd plaintiff, Buli Veeramma infavour of 3rd plaintiff,

Ex.A.3 is the CC of registered sale deed, dated 12-06-1960 executed by Ch.Venkata Subbamma infavour of Ch.Venkanna, and Ex.A.4 is the registered Will dated 06-06-2011 executed by 1st plaintiff infavour of PW.1. the defendant DW.1 in his evidence stated that he denied all the allegations made in the plaint as well as plaintiff and DW.1 and further submitted that AA1 CC1 is in possession and enjoyment of himself and 2nd defendant and predecessors in title for more than 30 years and they have perfected their title, that the said ancestral property is in exclusive possession and enjoyment of himself and 2nd 9 defendant and Venkata Ramana and their predecessors in title. There is no passage left and it is only meant for himself and 2nd defendant and that the 3rd defendant has no manner of right whatsoever and he has set up two alleged wills which are not genuine and the 3rd plaintiff has not come to the court with clean hands and there are no bonafiedies on his part and his version is quiet inconsistent. So, the suit is not maintainable. PWs.2 and 3 also stated the same as stated by

PW.1 that A1B1 CC1 is in possession and enjoyment of the plaint plan. So after considering the oral and documentary evidence of

PW.1 and considering the documents Ex.A.3 there is a recital with regard to joint lane and there 9 cents of lane. But Ex.A.1 is sale deed

dated 26-11-1965 executed by V.Surya Rao infavour of 1st plaintiff

does not contain about the said lane, Ex.A.3 is of the year 1960,

Ex.A.1 is of the year 1965. Therefore, the defendants are claimed right a plaintiff is claiming on Ex.A.1 showing that PP1 AA1 site is a shown in plaint plan is a passage to reach the Ac.0.04 cents of lane i.e., A1B1C1 and C. So, the evidence of plaintiffs and also on the defendants has not given any clear picture with regard to the existence of passage to reach the Ac.0.04 cents land belong to the plaintiff. But an Advocate Commissioner was appointed in this case and he filed the report which is not disputed by both parties, the report is on 07-08-2003 both parties did not file any objections on the

Advocate Commissioner Report. He has identified the suit schedule passage, but the demarcating as two items of defendants is one and

OPIM is one and PWDI is another, the total passage is shown by the plaintiff in the plaint schedule property. So, as per the commissioner 10 report the disputed passage is divided into pass in the eastern portion.

There are two coconut trees he found and a water tap belongs to the defendants and OPIM passage. So, according to him if the OPIM marked passage is an extended to eastern site, the water tap and coconut trees will be in the site. He was also given measurements and age of the coconut trees as 10 years and also he stated that a water tap installed by the Grampanchayath and there a Chapta measuring 5 x 5’ and the said flatform is not a new one is about 3 to 4 years prior to his visit. So, the disputed passage is not in existing as shown in the plaint plan by the plaintiff to the eastern side of the passage which is in possession and enjoyment of the defendant. But there is no evidence on behalf of the appellants/plaintiffs that he has got right and he has been using the passage as on the date of filing of the suit. The suit is filed simplecitor for permanent injunction, the plaintiff has to establish that he is in possession and enjoyment over the plaint schedule property. But according to an Advocate Commissioner half of the passage on eastern side is in possession and enjoyment of the respondents/defendants with two coconut trees and water tap with

Chapta and other things. So, the question of using the said passage by the appellant/plaintiffs does not arise. The plaintiff did not choose to cross examine the Advocate Commissioner and no objections are filed on the Advocate Commissioner report. So I do not find any other reason to disbelieve the Advocate Commissioner Report to prove that the plaintiff is not in possession and enjoyment of the PQRS passage as on the date of filing the suit. So, since the appellants/plaintiffs is in possession and enjoyment of the half of the portion of the disputed 11 passage which is in possession and enjoyment of the respondent/defendants, the appellant/plaintiff is not entitle for permanent injunction as prayed for. Therefore, considering all these evidence coupled with an Advocate Commissioner the Lower Court dismissed the suit in correct perspective. So, that I do not find any illegality and irregularity the lower court judgment in the findings on the lower court which does not require any interference of this

Appellate Court. Accordingly, the point is answered.

16. In the result, the appeal is dismissed with costs throughout.

Dictated to the Personal Assistant, transcribed by her,

corrected and pronounced by me in open court, this the 14 th day of December, 2017.

IV Addl. District Judge, Tanuku.

NO ORAL AND DOCUMENTARY EVIDENCE IS ADDUCED ON

EITHER SIDE

IV ADJ, Tanuku.

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IN THE COURT OF THE IV ADDL. DISTRICT JUDGE:: TANUKU

Present: Sri G.G.Kesava Rao, IV Addl. District Judge, Tanuku Thursday, this the 14th day of December, 2017

DOP.NO.731/2017

Between:

Depalli Chandra Latha @ Giddi Hepsiba. ....Petitioner.

And

Depalli Nagabhusanam @ Depalli Bula Bhushan. ….Respondent.

This petition is coming on 13-12-2017 for final hearing before me in the presence of Sri V.Sudarsan Srinivasa Rao and Sri A.Nagabhushanam, Advocates

for Petitioner and the Respondent have been remained exparte, and having stood

over the matter for consideration to this day, this court made the following:

O R D E R

The Petitioner filed this Petition Under Section 10 (1) (X) of Divorce

Act, 1869 praying to grant a decree for divorce by dissolving the marriage,

Dt.14-02-2014 on the ground of cruelty and desertion which is solemnized between the petitioner and respondent and grant costs of this petition.

2. The brief averments of the petition affidavit are as follows.

The marriage between Petitioner and Respondent was solemnized on 14-02-2014 as per Christian religious custom at Betheelu Pardhana Mandir,

Kumudavalli, Iragavaram Mandal, W.G.Dist. and the Marriage Certificate also has been issued by Pastor Rev.B.Jeevaratham. The marriage was consummated and out of the wed lock there are no issues. During the time of marriage the mother of the petitioner entrusted an amount of Rs.60,000/- to the respondent for the welfare of the petitioner. Subsequent to the marriage, the petitioner and respondent was separately resided in a rented house at Bhimavaram for leading a happy married life.

At that time the respondent worked in Bajaj Show Room at Bhimavaram. The petitioner and respondent lived together happily as wife and husband for only ten 2 days. Then true colors of the respondent lived together happily as wife and husband for only ten days. Then true colours of the respondent come out, the respondent is coming to his house in late at night on drunken state, further the respondent very oftenly coming to the house in a gap of two or three days at night only. On enquiry the petitioner came to know that the respondent is having affair with some other lady by name Padmaja, only for the dowry the respondent married the petitioner, even the respondent is joining with the petitioner once in two or three days he used to harass the petitioner as a sadist, which can not be disclosed in the petition and demanding to bring additional dowry of Rs.50,000/- from her mother, by using filthy language against the petitioner. The same was informed by the petitioner to her mother and her elders over phone, and then the mother of the petitioner along with caste elders came to their place at Bhimavaram After several sittings finally on last week of May, 2014 on the advice of elders the respondent agreed to see the petitioner without any torture in future, believing the words of the respondent the mother and elders went back happily and the petitioner was also got hope as the respondent changed his attitude, but it was futile with in short span of time i.e, not in a week time. The attitude of respondent is not changed he started to harass the petitioner both physically and mentally. The harassment was increased day by day. On 23-6-2014 night the respondent tortured the petitioner physically and mentally by sadistically and beaten the petitioner and thrown her from his hose @ night 2 ‘o clock and the petitioner reached her parents house, since then petitioner has been residing with her mother at Gopalapuram Village.

There is no scope to join with the respondent, there is no other go for the petitioner except to obtain divorce from the respondent to lead peace full life. Thereupon the

Petitioner approached the legal aid service authority, E.G.Dist., Rajahmundry in the month of February, 2016, the aid authority forward the application of petitioner to legal service authority of Kothapeta on point of jurisdiction and sent a notice to the respondent, but the respondent ignored the same. Subsequently the respondent 3 used to send messages to the petitioner’s mobile with unparliamentarily language, some of the messages taken a print out copy and filing along with this petition, vexed with illegal acts of the respondent the petitioner field a report before the

Ravulapalem P.S. E.G.Dist., but action was taken till today. Hence the petition.

3. The respondent is remained exparte.

4. For the Petitioner P.W.1 is examined. Exs. P-1 to P-4 are marked.

Respondent side no evidence no exhibits marked.

5. Heard arguments.

6. Now the Point for consideration is:

Whether the Petitioner is entitled for the relief as claimed for ?

P O I N T :- To prove the case of the Petitioner that petitioner evidence relied on the P.W.1 who is the petitioner in this petition and she examined as P.W.1.

She narrated the entire petition averments and marked. Exs.P-1 to P-4 documents and the respondent did not contest the petition remained exparte. Hence I do not find any other reason to disbelieve the evidence of P.W.1 to prove the petition claim coupled with Exs.P-1 to P-4, so the petition claim is proved, petitioner is entitled the claim as prayed for. Accordingly, the point is answered.

7. In the result, the petition is allowed with costs, by granting decree of divorce to the Petitioner by dissolving the marriage which is solemnized on 14-02-2014 between the Petitioner and Respondent on the ground of cruelty and desertion from the date of this Order.

Typed to dictation on computer to the Typist, corrected and pronounced by me in open court, this the 14th day of December, 2017.

IV ADDL. DISTRICT JUDGE,

TANUKU.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER: FOR RESPONDENT:

P.W.1: Depalli Chandra Latha @ Giddi Hepsiba - NONE-

DOCUMENTS MARKED

FOR PETITIONER:-

Ex.P-1: Marriage Photo after changing of the garlands. Ex.P-2: Original of Marriage Certificate issued by Pastor Rev.B.Jeevarathnam. Ex.P-3: Printed copy of vulgar messages sent by Respondent. Ex.P-4: Copy of the complaint submitted to SHO, Ravulapalem.

FOR RESPONDENT: NIL

IV ADDL. DISTRICT JUDGE,

TANUKU