Smt K.Himabindu

1 Draft Order

IN THE COURT OF THE JUNIOR CIVIL JUDGE: MUMMIDIVARAM

Present: Smt K.Hima Bindu, Junior Civil Judge Tuesday, this the 17th day of March, 2020

A.T.C. No. 25/1999

Between:-

1. Varada Kamakshi (died)

2. Varada Satyarajan, S/o Venkataratnam, Hindu, Age: 40 years, R/o Meraka Street, Rajahmundry. ( 2nd petitioner was added as LR’s to the deceased 1st petitioner in I.A. No. 617/2001 dated 07.09.2001)

... Petitioners.

And

1. Kantheti Krishnarao (died)

2. Mathamsetti Satyavathi Bramrambha, W/o Venkatarao, Hindu, Housewife, Age: 40 years, Rajahmundry.

3. Kallakuri Mahalakshmi Lakshmikantham, W/o Venkatarao, Hindu, Sthreedhana, Age: 37 years, Rajahmundry.

4. Uddagiri Visalakshi, W/o Satyanarayanamurthy, Hindu, Housewife, Age: 35 years, Rajahmundry. (Respondents 2 to 4 respondents added as respondents as per orders in I.A. No. 853/2002 dated 26.09.2003)

5. Kolla Sreenu Kumari, W/o Bapuji, Hindu, housewife, Age: 41 years, Aswanthapuram, Bangalore. (5th respondent was added as respondents as per orders in I.A.No. 114/2003 dated 26.09.2003)

6. Varada Kasi Viswanadham, S/o Venkataratnam, Hindu, Age: 47 years, Merchant, R/o Rajahmundry. ( 6th respondent was added as respondent as per orders in I.A.No. 653/2003 dated 14.11.2003)

7. Kantheti Nagarama Lingeswara Padmanabham, S/o Krishnarao, Hindu, Age: 33 years, business, R/o G.Vemavaram, I.Polavaram Mandal. (7th respondent was added as respondent as per orders in I.A.No. 434/2004 dated 23.09.2004) …Respondents.

This Petition is coming on 11.03.2020 for final hearing before this court in the presence of Sri G.V.Rama Rao, Advocate for Petitioners 1 and 2 and Sri R.Satyanarayana Murthy, Advocate for Respondents 2 to 4 and of Sri D.Anjaneyulu Advocate for 5th respondent and 6th respondent is set expartee and of Sri K.R.K.Raju, Advocate for 7th respondent and the matter having stood over for consideration till this day, this court delivered the following:

O R D E R

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1.This Petition is filed by the Petitioners Under Section 13 (A) of

Andhra Pradesh Tenancy Act praying to order Eviction of the 7th respondent from the Petition schedule property and deliver vacant possession of the same and to award costs.

2. The brief averments of the Petition are that:

The 2nd petitioner prays to Hon’ble Court to order eviction of the 7th respondent from the petition schedule land and deliver vacant possession of the same and to award costs and to grant such other or further reliefs that the Hon’ble Court deems fit and proper under the circumstances of the case.

One Sri varada Venkataratnam, the husband of the 1st petitioner is the absolute owner of petition schedule property and it is a double wet crop land. The said Venkataratnam during his life time executed a

Will on 16.02.1991 in a sound and disposing state of mind bequeathing the petition schedule property with absolute rights and he died on 11.03.1991 and thus she became the owner of the schedule property.

3-A The 1st petitioner died on 16.05.2001 and during her life time executed a Will dated 15.09.1668 bequeathing the petition schedule property and other properties of her to the 2nd petitioner. Hence the 2nd petitioner is entitled to proceed with petition.

(Para 3-A was added as per orders in I.A. 617/2001 dated 07.09.2001) 3-B The 1st respondent died on 29.04.2004 and 7th respondent is cultivating the schedule property. Hence the respondent No.7 was

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added as legal representative to the deceased 1st respondent Kantheti

Krishnarao.

(Para 3-B added as per orders in I.A. 434/2004 dated 23.09.2004)

The 1st respondent is a tenant of the petition schedule property since 14 years on an annual rent of 10 kata bags per year which is too low, compare with the prevailing rents. It is submitted that 1st respondent herein is a chronic defaulter and has been adopting dilatory tactics and committing default and denying petitioners title.

4-A The rent payable is 20 bags of paddy per year, per acre and also 1500 coconuts.

(Para 4-A was added as per orders in I.A. 814/2002 dated 15.11.2002)

The rent is payable on the 15tha day of January every year i.e.,

Sankranthi. The respondent committed default in payment of rents.

a) The rent is payable on 15.01.1992 (for 91-92) and attempted to take protection under section-8 for remission and the same was dismissed after full trial on and the same has become final.

a-1) The respondent failed to pay the rent for the year 1985-86.

(Para 5 (a-1) was added as per orders in I.A. 814/2002 dated 05.11.2002)

b) The respondent remitted rent for 92-93 by way of deposit to the credit of O.S. 136/85 on 25.02.1993 after expiry of grace period

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and also deposited the rent for the 92-93 on 25.02.1993 after expiry of the grace period to the credit of the same suit. For the year 1994-95 likewise deposited to the credit of the above suit on 23.02.1995. Thus the respondent committed default and further the respondent did not pay rent for 1996-97 and also denied her title in the light of earlier proceedings. Thus the respondent is liable for eviction.

3.The 1 st Respondent filed his counter. The brief averments of the Petition are that:

The allegations that the said Venkataratnam during his life time executed a Will on 16.02.1991 in a sound and disposing state of mind bequeathing the petition schedule property with absolute rights and he died on 11.03.1991 and thus she became the owner of the schedule property are not true and correct. The respondent do not know whether Varada Venkataratnam executed Will on 16.02.1991 and it is to be decided between the legal heirs and whether he died on 11.031991 is also to be divided in between them. The said

Venkataratnam had 4 daughters and 3 sons and they are the necessary parties to this petition. One Varada Kasi Viswanadham’s daughter is also claiming right through Will and also claiming right in thepetition schedule property. The petition is bad for non-joinder for necessary parties.

It is further submitted that it is true that Venkataratnam died and respondent is the tenant and rent is correct but it is not low rent.

The allegations that respondent herein is a chronic defaulter and has been adopting dialotory tacties and committing default and denying

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the petitioner’s title are not true and correct. It is true that the rent is to paid 15th January every year.

It is further submitted that the respondent filed A.T.C. 26/1191 for remission for the year 1991-93 on 25-02-1993 and for the year 1994-95 he paid rent on 25-02-1995 and the respondent filed A.T.C.

118/96 for remission for the year 1996-97 and it is pending for disposal. The respondent paid rent lately because the crop riped for cutting lately and the purchaser of the paddy give the amount of cash lately. The respondent paid rents before filing the eviction petition. It is not default. The petitioner did not receive any amount from the

Court as she is not the full owner of the petition schedule property. The petitioner did not receive any amount from the court as she is not the full owner of the petition schedule property. The petitioner did not take any steps to become landlord of entire schedule property.

It is further submitted that there are several suits were filed against the respondent and those suits were dismissed. A.T.C.9/88 and O.S. 136/85 were dismissed. The respondent paid the rents regularly. The cause of action does not contain when the lease was commenced. Therefore, he prays to dismiss the petition.

4.The 2 nd Respondent filed his counter. Adopted memo filed

by the respondents 3 to 5 and adopted the counter of R 2.

The brief averments of the Petition are that:

The material allegations mentioned in the petition in para 3, para 3 (A) are not true and correct. The petition schedule property is part and parcel of the joint family properties possessed by the petitioner and the respondents 2 to 5.

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It is further submitted that the schedule property was leased out to the first respondent on annual rent of 20 bags of paddy for year per acre and 1500 coconuts per year. During the pendency of the main petition the first petitioner died and the second petitioner was added as L.R. of the First petitioner basing on the Will dated 15-09-1998.

The allegations that the first petitioner husband Varada Venkata

Ratnam executed a Will on 16-02-1991 and died on 11-03-1991 and that the Ist petitioner succeeded to all properties including the schedule property and that she executed a Will on 15-09-1998 and she died on 16-05-2001 and the second petitioner succeeded to the properties are not true and correct.

It is further submitted that one Varada Kasi Viswanadham filed the suit O.S.232/1992 against Varada Satyanarayana and Kamakshi for partition of the schedule properties including the petition schedule property. This respondent and respondents 3 to 5 are added as defendants 4 to 7 as per order in I.A.No. 1023/1993 in

O.S.No.232/1992 dated 29-06-1993 after the full trial by the Hon’ble

Additional Senior Civil Judge, Rajahmundry disbelieved the Wills

dated 16-02-1991 and 24-02-1991 and treated as all the properties

including the schedule property as joint family properties. It was also held that the respondents are necessary parties having interest, right and share in the joint family properties and decreed the suit for partition on 27-04-2001.

It is further submitted that the allegations that the husband of the first petitioner executed a Will and the 1st petitioner succeeded to

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the properties that the 1st respondent executed Will Dt. 15-09-1998 in favour of the second petitioner and he succeeded to the properties is not true and correct. The allegations that the petitioner alone has the right and interest in the schedule property and file the petition which is not maintainable as such the respondents are also entitled to proceed in the petition against the 1st respondent.

It is further submitted that the falsity of the case of the petitioner is that he did not show or exhibited the said Will while the suit

O.S.232/1992 was pending where under the alleged will was not

brought into light as early as 15-09-1998 and by that date petitioner was not at all examined. Added to this the alleged fabricated Will is not probated by the District Judge, East Godavari at Rajahmundry to make known that the Will is executed and is made known to the entire world.

It is further submitted that the 1st respondent failed to pay the agreed rent for 1991-92, 92-93, 94-95 and 96-97. The 1st respondent committed default in payment of agreed rents for the above periods.

Therefore, the 1st respondent has to be evicted from the schedule properties on the ground that he committed default of payment of rent. The respondent and other respondents pray that the Hon’ble

Court may be pleased to allow the petition with costs and order eviction of the Ist respondent from the petition schedule property.

5.The 7 th Respondent filed his counter. The brief averments of the Petition are that:

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The father of this respondent deposited rents regularly before the

Hon’ble Court as there are disputes between the legal heirs of landlord.

The father of this respondent i.e., 1st respondent deposited rents as follows:-

Rs. 1,065-00on 12.08.1985

Rs. 1,200-00on 03.02.1988

Rs. 1,300-00on 04.02.1989

Rs. 1,400-00 on 31.01.1990

Rs. 1,500-00on 11.02.1991

Rs. 2,000-00on 25.02.1993

Rs. 2,250-00on 03.02.1994

Rs. 2,400-00on 25.02.1995

Rs. 3,000-00on 31.01.2000

The petitioner filed remission petition 1986.87 and deposited rents into Hon’ble Court for the other years also. The respondents were presently not with this respondent. The 1st respondent was not chronic defaulter. There is no term chronic defaulter in the A.P. Tenancy Act. There are disputes with regard to

Wills. Hence the 1st respondent denied the landlords title. The 1st respondent not claimed his ownership towards the petition schedule property. Hence petition consents like denying ownership is no way concerned to this respondent. According to the counter filed by me late 1st petitioner there are two wills executed by late Varada Venkata

Ratnam.

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It is further submitted that the petitioner filed ATC 118/96 for remission of rent for the year 1996-97.The Hon’ble court granted half remission on 03.10.2001 and the 1st respondent deposited rent into court on 08.11.2001. There is heavy cyclone effected, this area on 06.11.1996 and claiming rent for the 1996-97, is not proper. It is not default as this respondent is having right to prove the damage caused to crop. The 1996-97 the entire crop in the properties damaged due to cyclone.

It is further submitted that the father of this respondent filed ATC 26/91 for remission of rent as the property is lost due to TVNGRO Virus for the year 1991-92, the Hon’ble court granted one moth time on 31.03.1999 the respondent deposited the rent with in stipulated time.

The respondent paid rents before filing the eviction petition. The petitioner did not received rents as there ad disputes in between them.

The 2nd petitioner tried his level best to with draw the rents but it is stopped as the other respondents brought on record. The attempt to receiving rent shows the 2nd petitioner is accepting the above rents, which become the 2nd petitioner is waived his right.

Tenancy Act allowed the depositing rent even after due date, if the landlord received the rent, he accepted the rent. Hence depositing of rent before filing eviction petition is not default.

It is further submitted that there are several suits filed against the respondent and those suits were dismissed. Like ATC 9/88 and O.S.

136/85. The 1st respondent paid rents regularly. The cause of action for

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the petitioner is not correct. The cause of action does not contain when the lease was commenced, and when the lease was enhanced. The petition does not contain the loss was enhanced. How the coconuts were brought in as rent.

It is further submitted that there are several suits pending in between the 2nd petitioner and respondents 2 to 6, there is no final order between them. A duty is cost on the tenant to see the rent is to be received by the actual land lord. The other allegations contra to the above submissions are hereby denied by this respondent. The 2nd petitioner was added as legal heir of 1st petitioner by suppressing the truth. Therefore, prays to dismiss the petition with costs.

6.The Additional counter filed by the 1 st Respondent. The brief averments of the Petition are that:

The allegations mentioned in the neat copy of petition are not true and correct. The near copy is filed by the 2nd petitioner does not contain actual particulars in the original petition. The original petition disclose 10 bags of paddy as rent, but the rent copy petition contains 20 bags of paddy as rent. The 2nd petitioner mentioned in the neat copy of petition new pleadings.

It is further submitted that this Ist respondent denied the title of petitioner as the will was not declared by the court as genuine document. Several suits are pending in between the petitioners and respondents 2 to 6 that is why this respondent denied the title. This respondent is not fell in arrears of rent.

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It is further submitted that this respondent is depositing the rents every year without committing default. The 2nd petitioner and respondents 2 to 6 never received the rents deposited by this respondent due to disputes between them. A duty is cost on this respondent to see to see, the rent is to be received by actual land lords. The other allegations contra to the above submission are hereby denied. Therefore, prays to dismiss the petition with costs.

7.The Additional counter filed by the 7th Respondent. The brief averments of the Petition are that:

The petition is not just valid and maintainable under law. The material amendments made by the petitioner are not tenable under law. The tenancy act is not applicable for the commercial crops.

It is further submitted that the petitioner supplied copy discloses that it is an extent of Ac.0.01 cents out of full Ac 2-19 cents. So, the petitioner did not properly amend the petition and did not properly filed near copy of the petition. The southern boundary of the petition is wrongly mentioned as a tenant’s family and others. The petitioner wantonly mentioned the petition as Ac.0.10 cents in order to grab the property of the 7th respondent. The names of the southern boundary owners not showed. The petitioner clearly mentioned in the petition that the petition schedule property is double crop wet land. When it is a double crop wet land how the 1500 coconuts are rent. When the coconut plants are existing in the schedule property tenancy act will not applicable. Therefore prays to dismiss the petition with costs.

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8.On behalf of the Petitioners, the 2nd Petitioner was himself examined as PW1. Exs.A1 to A11 were marked. Ex.A1 is the certified copy of Ex.B14 in A.S. 90/2001 on the file of Hon’ble Addl. Senior Civil

Judge Court, Rajahmundry relates to order and decretal order in ATC

26/91 dated 31.03.1999. Ex.A2 is the certified copy of Ex.B4 in A.S.

90/2001 on the file of A.S.C.J, Rajahmundry relates to plaint in the suit

O.S. 670/1994, Ex.A3 is the certified copy of Ex.B3 in A.S. 90/2001 on

the file of A.S.C.J, Rajahmundry relates to notice dated 01.02.1993,

Ex.A4 is the certified copy of Ex.B2 in A.S. 90/2001 on the file of

A.S.C.J, Rajahmundry relates to letter dated 07.02.1993. Ex.A5 is the certified copy of Ex.B1 in A.S. 90/2001 on the file of A.S.C.J,

Rajahmundry is relates to certified copy of Judgment in O.S. 670/1994

dated 25.01.1995. Ex. A6 is the partition of signature of witnesses on

certified copy of deposition of DW9 in O.S. 232/92 on the file of Addl

Senior Civil Judge’s Court, Rajahumundry, dated 16.03.2001 marked

through RW4. Ex.A7 is the certified copy of Ex.B48 in A.S. 90/01 on the file of Addl Senior Civil Judge’s Court, Rajahmundry relates to certified copy of Village account no.3 for Fasali 1409. Ex.A8 is the certified copy of Village account no.3 for Fasali 1411 issued MRO I.Polavaram. Ex.A9 is the served copy of remission petition in ATC 51/1998 on the file of this court along with summon. Ex.A10 is the certified copy of Ex.15 in

A.S. 90/2001 on the file of Addl Senior Civil Judge’s Court, Rajahmundry

relates to certified copy of deposition of Kantheti Krishna Rao in ATC 26/1991 on the file of this Court. (He is no more). Ex.A11 is the

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certified copy of Ledger. Whereas on behalf of the respondents, RW1 to RW5 were examined. Exs. B1 to B7 were marked. Ex.B1 is the certified copy of Judgement of the suit O.S. 232/1992, 4/2000 and 6/2000 on the file of Hon’ble Addl Senior Civil Judge, Rajahmundry,

dated 27.04.2001. Ex.B2 is the certified copy of suit register of ATC

118/1996 on the file of S.O. cum J.C.J. Mummidivaram. Ex.B3 is the certified copy of the petition copy in ATC 118/1996. Ex.B4 is the certified copy of the counter in ATC 11/1996. Ex.B5 is the certified copy of order, dated 03.10.2001 passed in ATC 118/1996. Ex.B6 is the certified copy of the account copy in ATC 11/1996. Ex. B7 is the certified copy of cross objections in A.S. 90/2001 on the file of Hon’ble

V Addl. District Judge, Rajamahendravaram.

9.Heard arguments on both sides

Points for Consideration:-

Whether the petitioners are entitled for the Relief of

Eviction of the 7 th Respondent from the Petition schedule

property as claimed for or not ?

10. POINT:

This petition was filed by the Petitioners against the respondents for Eviction of the Petition Schedule Property under Section 13 (A) of

A.P. Tenancy Act. The respondents denied all the allegations and filed their counter. Pending proceedings the 1st petitioner died and the LRs

Varada Satya Rajan was added as a legal heir of the deceased 1st petitioner. Pending proceedings the 1st respondent died and the 7th respondent was added as a legal heir for the 1st respondent. The 2 to 6 respondents are the children of the 1st petitioner were shown as proper

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and necessary parties as they filed the suit for partition before the other courts and so many suits were pending related to the petition schedule property and other properties of the deceased 1st petitioner and their legal heirs. The 2nd petitioner was examined as PW1 and Exs.

A1 to A11 were marked through him. The respondents i.e., 2nd respondent, 3rd respondent, 4th respondent, 6th respondent were examined as RW1 to RW3 and RW5 and the 7th respondent was examined as RW4. The Ex.B1 was marked through RW1, Exs. B2 to B7 were marked through RW4. The property which is the subject matter of the dispute, in ATC 25/99 is stated originally belonged to Sri. Late

Venkata Ratnam. He was the husband of the 1st petitioner. The respondents 2 to 6 are the LR’s of the 1st petitioner. The 1st respondent is the tenant of the disputed land which is an extent of Ac. 1.00 in

R.S.No. 68/1 of G. Vemavaram Village of I.Polavaram Mandal.

Subsequently the respondents 2 to 6 were filed an application to transpose them as petitioners in the said ATC and the same was dismissed and accordingly they filed revision petition before the

Hon’ble High Court of Judicature at Hyderabad and subsequently the

said stay was vacated by the Hon’ble Court and dismissed the revision.

Basing on that above proceedings the parties were examined and the point for consideration is that whether the 7th responded is liable for eviction from the schedule property or not.

11.The PW1 filed chief affidavit on 19.02.2004, in his chief affidavit he stated that the 1st petitioner is his mother and originally the petition was filed by the 1st petitioner and subsequently she died.

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After the death of his mother, the 2nd petitioner was added as a legal heir of the 1st petitioner for the petition schedule property. Originally the petition schedule property is the absolute property of the Varada

Venkata Ratnam who is the husband of the 1st petitioner. During his lifetime he executed a Will on 16.02.1991 in a sound and disposing state of mind and bequeathed the petition schedule property to the 1st petitioner as she is the absolute owner of the schedule property. The 1st petitioner died on 15.05.2001. During her lifetime she executed a

Will dated 15.09.1998 bequeathing the petition schedule property and other properties of her to PW1. The 1st respondent is the cultivating tenant of the petition schedule property since 18 years on annual rent of 20 bags of paddy per year per acre and also 1500 coconuts payable by the end of 15 January of every year. The 1st respondent committed default in payment of rent for the years 1991 to 1992 and 1992 to 1993, 1993 to 1994 and 1994 to 1995. The respondent filed remission petition for the year 1991 to 1992 and the same was dismissed. The remission petition is ATC 26/1991 was marked as Ex.A1. The rent for the year 1994 to 1995 is also deposited in O.S. 136/1985 after expiry of the grace period on 25.02.1995. Subsequently the 1st respondent also filed another ATC. 51/1998 and also filed O.S. 670/1994 on the file of the 1st Additional District Munisiff Court Rajahmundry which was filed by the 1st respondent by name Varada Kasi Viswanadham and the said plaint copy was marked as Ex.A2 and the notice was marked as Ex.A3 and the reply notice was marked as Ex.A4 and the Judgment in O.S.

670/1994 was marked as Ex.A5.

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12.Basing on that documents, the learned counsel for the respondent cross examined and further the PW1 filed some more documents along with additional chief affidavit and then Exs. A6 to A11 were marked and he was further cross examined. Subsequently the

PW1 was recalled for three times and cross examined him.

13.The PW1 stated in the cross examination that he denied the allegations and stated that so many suits are pending between them and the said documents were marked through him. Except PW1 no one was examined on his side. On the respondents side, five witnesses were examined and supported the version of PW1. They also asked the relief for the eviction of the 7th respondent who is the legal heir of the 1st respondent. However serious disputes between the parties in respect of not only the property covered under the ATC 25/1999 and the other properties of their alleged joint family shall be considered.

Having regard to the stand of the petitioner which is hostile to the 2nd respondent. So, the evidence of RW1 to RW3 and RW5 support to the contention of the PW1. Some of the documents were marked in the cross examination of the PW1 and some other documents are marked through RW1 and RW4. Basing on that evidential portion and documentary evidence clearly shows that the legal heir of the 1st respondent i.e., 7th respondent during the pendency of the proceedings the 1st respondent committed defaults in payments of rents regarding to the schedule property.

14.The learned counsels for the petitioners and respondents vehemently argued that the 1st respondent as well as the 7th

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respondent are committed default. The learned counsel for the respondents and the learned counsel for the 7th respondent argued that the coconuts are come under the purview of the Tenancy Act and further contended that the petitioner filed the petition stating that the maktha of the property is 10 bags at the time of the filing of the petition and the same was clearly mentioned in the petition and subsequently in the amended copy he stated that 20 bags for maktha for the schedule property due to that without amendment of the petition the said mutation of difference in makthas are not maintainable and therefore the petition is not maintainable under law.

15.The learned counsel for the petitioner argued that as per the Wills and for some other suits are pending and the petitioner is the absolute owner of the schedule property since 1991 to 1992. The deceased 1st respondent and the legal heir i.e., 7th respondent are the chronic defaulters in payment of makthas. So, according to Section 13 of A.P Tenancy Act they are liable to be vacated and also he got issued legal notice for eviction of the schedule property. The RW1 to RW3 stated that the 7th respondent is in default and he is liable to be vacated and they further stated that they got share in the maktha and some of the amount was lying in the Court and they are also entitled to get share in the said amount and also filed Judgment AIR 1976 S.C.

page 2335 and also AIR 1972 A.P. 375.

16.But as per the evidential portion and documentary proof the dispute is not relating to the share of the amount i.e., only for eviction from the schedule property as the 7th respondent is chronic defaulter in

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payment of maktha to the petitioners. The 7th respondent failed to prove his case that he is not the defaulter of the schedule property and the learned counsel for the respondents only raised technical aspect only. So, the burden of proof is on the respondents to prove his case, eventhough the respondents also not supported the contention of the 7th respondent.

17.In view of the above circumstances, Judgments held by the

Apex Courts, there is no dispute in between the landlord and tenant.

So, the 7th respondent admitted that he is the tenant of the petition schedule property. There is no dispute regarding the landlord and tenant relationship. As per the tenancy rules and Section of Law clearly shows that if any tenant became default in payment of maktha he is liable to vacate the schedule property. In this case there is no extension of renewal of the tenancy for the said schedule property and the 7th respondent failed to prove in that aspect. The RW1 to RW3 are the co-owners and the Court has no right to decide the said fact in this case and the same will be decided by the Civil Court. At this juncture the respondents also support to the contention of the petitioner.

18.In view of the above circumstances the 7th respondent failed to prove the case and the entire point for consideration was answered in favour of the petitioners and in the result the petition is allowed.

19. In the result, this petition is allowed with costs and the petitioners are entitled for Eviction of the 7th Respondent from the Petition

Schedule property and directing the 7th Respondent to deliver the

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vacant possession of the Petition Schedule Property to the Petitioners within 60 days from the date of this order, otherwise the petitioners are at liberty to took the possession of the Petition schedule property under due process of law.

Typed to my Dictation, corrected and pronounced by me in the open court this the 17th day of March, 2020.

Junior Civil Judge,

Mummidivaram.

Appendix of evidence

Witnesses examined

For Petitioners:

PW1/ 19.02.2004 Varada Satyarajan

For Respondents:

RW1/ 11.10.2004 Matam Satyavathi Bhamaramba RW2/ 11.10.2004 K. Mahalakshmi Lakshmikantham RW3/ 11.10.2004 U.Visalakshi RW4/ 27.10.2004 K. Rama Lingeswara Padmanabham RW5/ 08.11.2004 U. Satyanarayana

Exhibits marked

For Petitioners:

Ex.A1/ Certified copy of Ex.B14 in A.S. 90/2001 on the file of Hon’ble Addl. Senior Civil Judge Court, Rajahmundry relates to order and decretal order in ATC 26/91 dated 31.03.1999. Ex.A2/ Certified copy of Ex.B4 in A.S. 90/2001 on the file of A.S.C.J, Rajahmundry relates to plaint in the suit O.S. 670/1994. Ex.A3/ Certified copy of Ex.B3 in A.S. 90/2001 on the file of A.S.C.J, Rajahmundry relates to notice dated 01.02.1993, Ex.A4/ Certified copy of Ex.B2 in A.S. 90/2001 on the file of A.S.C.J, Rajahmundry relates to letter dated 07.02.1993. Ex.A5/ Certified copy of Ex.B1 in A.S. 90/2001 on the file of A.S.C.J, Rajahmundry is relates to certified copy of Judgment in O.S. 670/1994 dated 25.01.1995. Ex.A6/ Partition of signature of witnesses on certified copy of deposition of DW9 in O.S. 232/92 on the file of Addl Senior Civil

Judge’s Court, Rajahumundry, dated 16.03.2001 marked

through RW4. Ex.A7/ Certified copy of Ex.B48 in A.S. 90/01 on the file of Addl Senior

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Civil Judge’s Court, Rajahmundry relates to certified copy of

Village account no.3 for Fasali 1409. Ex.A8/ Certified copy of Village account no.3 for Fasali 1411 issued MRO I.Polavaram. Ex.A9/ Served copy of remission petition in ATC 51/1998 on the file of this court along with summon. Ex.A10 Certified copy of Ex.15 in A.S. 90/2001 on the file of Addl

Senior Civil Judge’s Court, Rajahumndry relates to certified

copy of deposition of Kantheti Krishna Rao in ATC 26/1991 on the file of this Court. (He is no more). Ex.A11/certified copy of Ledger.

For Respondents:

Ex.B1/ Certified copy of Judgement of the suit O.S. 232/1992, 4/2000 and 6/2000 on the file of Hon’ble Addl Senior Civil Judge, Rajahmundry, dated 27.04.2001.

Ex.B2/ Certified copy of suit register of ATC 118/1996 on the file of S.O. cum J.C.J. Mummidivaram.

Ex.B3/ Certified copy of the petition copy in ATC 118/1996.

Ex.B4/ Certified copy of the counter in ATC 11/1996.

Ex.B5/ Certified copy of order, dated 03.10.2001 passed in ATC 118/1996.

Ex.B6/ Certified copy of the account copy in ATC 11/1996.

Ex.B7/ Certified copy of cross objections in A.S. 90/2001 on the file of

Hon’ble V Addl. District Judge, Rajamahendravaram.

Junior Civil Judge,

Mummidivaram.

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1

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

IN THE COURT OF THE JUNIOR CIVIL JUDGE :: MUMMIDIVARAM

PRESENT: Smt K.Hima Bindu,Junior Civil Judge, Mummidivaram

Friday, this the Twelfth day of October, 2018.

Original Suit No.67 of 2007

B ETWEEN :-

Peddireddi Balakrishna …Plaintiff

AND

1)State of Andhra Pradesh, Rep.by the District Collector, East Godavari, Kakinada. 2)Revenue Divisional Officer, Amalapuram. 3)The Tahsildar, Mummidivaram Mandal. 4)The Mandal Development Officer, Mummidivaram Mandal. 5)The Assistant Engineer(Mandal Engineering Officer) Panchayat Raj Department, Mummidivaram. 6)Asst.Divisional Engineer Operation, A.P.E.P.D.C.L., Mummidivaram. 7)Gaada Gavaramma 8)Gaada Satyanarayana 9)Gaada Kavamma 10)Gaada China Verreyya …Defendants

This suit coming up for final hearing on 25.09.2018 before this court in the presence of Sri Ch.Ajay Kumar, Advocate for Plaintiff and Sri. R.V.S.S.Sastry, A.G.P., for defendants 1 to 3, Sri A.Suresh, Advocate for 6th defendant and Sri D.Anjaneyulu, Advocate for defendants 7 & 8 and the matter having stood over for consideration, this Court delivered the following:-

J U D G E M E N T

1.The plaintiff filed this suit U/Order VII Rule 1 and Sec.26 of C.P.C against the Defendants for Mandatory Injunction directing the 6th defendant to remove the electrical service connection given to the sheds laying in red marked plaint plan property and to grant permanent 2

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

injunction restraining the defendants 1 to 5 not to grant any pattas in respect of any inch of the plaint schedule property in favour of defendants 7 to 10 or their nominees or to grant any sanction of any loans for purpose of making any structures in the plaint schedule property by any one of the defendants or their men and to grant permanent injunction restraining the defendants or their followers from ever interfering with the peaceful possession and enjoyment of the plaint schedule after evicting them from the red marked portion and also for other reliefs.

2.THE BRIEF AVERMENTS OF THE PLAINT ARE AS FOLLOWS :-

The plaint schedule property is a part of ancestral property and absolute property of the plaintiff who got it in a partition effected between the plaintiff and his brothers and father and since then he has been in peaceful possession and enjoyment without any interruption exclusively and even prior to the partition the joint family of the plaintiff used to enjoy the same peacefully. There is no drainage bodi on the east of the said land intervened by a puntha and that the entire plaint schedule property and the other surrounding lands are coconut gardens and on all the 3 sides of the plaint schedule property the coconut garden of Nagabattula Satyam,

Peddireddi Pallamraju and Basava Venkatalakshmi are situate and that the plaintiff has to reach the puntha situated adjacent to the drainage bodi on the east from the schedule land for all practical purposes and that the plaintiff having a cattle shed on the south western corner of the plaint schedule property and is tethering his cattle. The family of the plaintiff are well reputed and rendering services to the public and philanthropic in nature and as such about 4 or 5 years back when one of the brother of the plaintiff by 3

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

name Muneendra Rao’s wife was elected as Sarpanch of the said village and on the request of Gaada Verreyya husband of the 7th defendant and on the recommendation and out of sympathy of the then Sarpanch the plaintiff permitted the said Verriyya during his life time and the defendants 7 to 10 have a shelter in the coconut storage sheds and coconut stems storage sheds temporarily till they got pattas from the Government and constructed their own houses in the site going to the allotted in the ceiling land of Akshimthala chinarao of Gaadilanka. At that time the said Verriyya and defendants 7 to 10 have already made an application to the Government and is likely to e the pattas. The defendants 7 to 10 and the deceased Verriyya having agreed to the said conditions before Sri Peddireddi Naga Muneendra Rao entered into the sheds lying on the eastern side of the plaint schedule property and on the said permission the defendants 7 to 10 continued as such and actually they got pattas in the land surrendered to the Government under the ceiling Act by Akshimthala Chinnarao. While the matters stood thus there were some election disputes arose as between the plaintiff’s family members and Danam

Gopalakrishna and the defendants are threatening the plaintiff that they are not going to vacate and challenging him stating that let him to do what ever he likes and proclaiming that they have got political background and no one can evict them from the schedule property. The attitude of the defendants 7 to 10 became hostile to the promise made to the plaintiff at the time of entering into the sheds of the plaintiff and soon after the permission is withdrawn by the plaintiff the defendants 7 to 10 became trespassers in the eye of law and they are not entitled to continue in unlawful possession in the 4

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

plaint schedule property. The disputed sheds are lying on the eastern row along AB line as shown in the plaint plan and causing hindrance for free passage of the cars, vehicles and cattle to pass through from the schedule land to reach the puntha on its east. The plaintiff has withdrawn the permission about few months back and asked the defendants to vacate the premises and that the defendants 7 to 10 made an application to the 6th defendant to supply power to the above sheds without the plaintiff’s consent and immediately after knowing the fact the plaintiff presented a representation to the 6th defendant marking a copy to A.E., and M.R.O not to entertain any such application behind his back and protect the rights of the plaintiff in the property and Inspite of the representation D.6 and his subordinate high handedly got issued the service connection to the above sheds and laid poles inspite of protest by the plaintiff very recently and that the defendants 7 to 10 are now claiming that they would get some pattas for the above sheds from defendants 1 to 5 and get some funds from the 4th and 5th defendant under certain schemes provided by the Government and threatening the plaintiff that they would lay road in the site of the plaintiff for their ingress and egress from the sheds of the plaintiff.

The plaintiff further submitted that the defendants 1 to 6 are acting against the right, interest of the plaintiff in the schedule property and proposing to issue pattas without verifying the nature of the property and the nature of the possession of the defendants 7 to 10 and act contrary to law much harm would be caused to the plaintiff. Unless the defendants 1 to 10 are prevented from granting any pattas so also to sanction any grants for construction of any pucca houses or sheds in the place of the present sheds 5

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

of the plaintiff in the permissive possession of defendants 7 to 10. The plaintiff is unable to resist the high handed acts of the defendants and he got every right including the adjacent puntha margin to have access to reach the puntha from his land in each and every point and every concerned granting of any pattas either in the plaintiff’s land or in the puntha margin will effect peaceful possession and enjoyment of the plaintiff’s land in all respects.

It is further submitted that the defendants 1 to 5 are representing the

Government their acts are not in consonance with the duties entrusted to them and they are interfering with the private and personal rights in the property of the plaintiff without following the due process of law or in any other manner known to law and that the defendants are taking the law into their own hands and proceeding in a post haste manner there is no scope laid down under Sec. 80 of CPC and to wait for 2 months period. If such period is not dispensed with the defendant will take bad advantage of the notice and may contend that they have already granted pattas and nothing could be done and plead the suit become in fructuous. To avoid the multiplicity of proceedings and further complications and to save time the plaintiff is requesting the court to take the suit on file in view of the urgency by dispensing with the statutory notice Sec.80(2) C.P.C otherwise much prejudice and irreparable loss would be caused to the plaintiff. On the above grounds the plaintiff requested to decree the suit. Hence the suit.

3.The 3 rd defendant filed his Written Statement denying the

allegations mentioned in the Plaint. The brief facts of the written

statement are that:

6

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

The defendantsubmits that the plaintiff having property in R.S.No.73/3 of Gadilanka village and towards east of the said property there is a

Government Poramboke puntha situated in R.S.No.73/1 Ac 0.53 cents and that the defendants 7 to 10 are belongs to schedule tribe “Yerukula” community and their forefathers resides in the said drainage puntha since time immemorial having huts the said property and that the Government recognizing the continuous possession of the defendants 7 to 10 granted pattas in their favour defendants 7,9,10 in the year 1976. There is a cement road towards north of the plaintiff’s property. The defendants 7 to 10 and their family members made a representation for in Grama sabha for further extension of the said road towards south direction through R.S.No.73/1 which is under consideration. The defendant further submitted that there is no necessity to touch the property of plaintiff situated in R.S.No.73/3 in the event of lay a road in Government poramboke puntha and that the suit is not maintainable as no notice was issued under Sec.80 C.P.C which is mandatory and there is no cause of action to file the suit and the alleged cause of action is not true and correct.On the above grounds, the defendants prays the

Hon'ble court to dismiss the said suit.

4.The 8 th defendant filed written statement denying the

allegations mentioned in the Plaint. The brief facts of the written

statement are that: This defendant submits that the plaintiff has not come to the court with clean hands and that he is not entitled to any equitable relief. Since the forefathers of defendants 7 to 10 these defendants are in possession of the schedule marked 1,2,3 thatched sheds besides another thatched shed in the

PQRS marked plaint plan property further extended to East and South and that the defendants 7 to 10 are related to each other and 7

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

the defendants are engaged in raring pigs and on that count they are forced to live aloof from other members of the society and these defendants forefathers put up their residence in the poramboke abetting to drainage in

R.S.No.73/1 of Gadilanka village by raising thatched sheds in it, living therein peacefully since more than 80 years and recognizing the same, authorities also issued pattas in favour of defendants 7 to 10 during 1976 and further there are 15 coconut trees in the said property aged about 30 years raised by the husband of 7th defendant situated in the said R.S.No.73/1 the yielding of said coconut trees are enjoyed by the family members defendants 7 to 9 without any manner of protest from anybody and that the plaintiff do not own any inch o property in R.S.No.73/1 but falsely set up a claim over the same as if the property owned by him under the alleged family partition extend up to puntha portion of plaint plan. The plaintiff is in enjoyment of his property situated in 73/3 only by raising barbed wire fencing demarcating 73/3 from 73/1 and that the plaintiff is never exercised any right of access through

R.S.No.73/1.

The defendant further submits that on the north of plaint plan property abetting to the plaintiffs property there is puntha portion in R.S.No.73/8 and the family of the plaintiff using their political influence encroached said puntha portion and converted the same as wet land by obtaining pattas under false representations as land less poor for an extent of Ac 0.26 cents and the plaintiff having regular access to said puntha have no falsely set up the alleged right of access on the eastern side to knock away the property in the peaceful possession and enjoyment of defendants 7 to 10 and theplaintiff filed a plan suppressing facts to suit to the plaint plan. The plaintiff failed to 8

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

show the cement road lying further north to the above referred Ac 0.26 cents of land in the occupation of plaintiff in the guise of pattas.

The defendants 7 to 10 belongs to “Yerukula” community they were living in isolation without access to proper road are any civic amenities enjoyed by other villagers. While so the government developed cement road on the northern side to the plaintiff’s property running between west to east and that the defendants made representations to the authorities for extension of same through their houses running the same from the north to th south of the plaint plan. The plaintiff and his family members influenced the authorities and stalled lying of the same and in the meanwhile the plaintiff and his family members developed evil intention to grab the land situated in 73/1 also from the hands of defendants 7 to 10 alleging them as living under permission and subsequently alleging them as trespassers to conveniently suit to their suit and that the plaintiff has no manner of right or title over the schedule property and that there is no cause of action to file the suit and the alleged cause of action is not true and correct. On the above grounds the defendants requested to dismiss the suit.

5.Basing the above pleadings the following issues are settled for trial by my predecessor.

1)Whether the red marked portion shows as PQRS of the plaint plan with disputed sheds is within the patta land of the plaintiff in R.S.No.73/3 or in the Government Poramboke in R.S.No.73/1. 2)Whether the plaintiff is entitled to the relief of recovery of possession against defendants 7 to 10? 3)Whether the plaintiff is entitled for Mandatory injunction against the 6th defendant? 4)Whether the plaintiff is entitled for permanent injunction against defendants 1 to 5 as prayed for? 5)Whether the plaintiff is entitled for permanent injunction against the defendants as prayed for? 6)To what relief ?

9

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

EVIDENCE AND EXHIBITS:

6. On behalf of the plaintiff, P.Ws. 1 to 5 were examined. The plaintiff himself examined as P.W.1 who filed chief affidavit narrating the same facts which were mentioned in the plaint. Exs.A.1 to A5 are marked.

Ex.A.1 is the registered partition deed dated 14.05.1981, Ex.A.2 is the pattadar pass book in the name of P.W.1, Ex.A.3 is the office copy of representation dated 23.01.2007 to Asst.Engineer, A.P.E.P.D.C.L, Ex.A.4 is the postal acknowledgment address to the 3rd defendant and Ex.A.5 is the postal acknowledgment addressed to the 6th defendant.

7.Where as on behalf of the defendants, D.Ws.1 to 8 were examined. D.W.4, D.W.6 & D.W.7 evidences are eschewed. The 8th defendant examined as D.W.1 who filed chief affidavit narrating the same facts which were mentioned in the written statement. Exs.B.1 to B.3 were marked.

Ex.B.1 is the Government Patta in favour of Gada verriyya, dt.11.11.1976,

Ex.B.2 is the Government Patta in favour of Gada Veeraswamy dt.11.11.1976 and Ex.B.3 is the Government patta in favour of Gada Chinaverriyya, dt.11.11.1976(Exs.B.2 & B.3 are subject to objection)

8.Heard arguments on both sides. Written arguments submitted by the plaintiff and also by the defendants 7 to 10.

DISCUSSION:

Issue No.1: Whether the red marked portion shows as PQRS of the

plaint plan with disputed sheds is within the patta land of the

plaintiff in R.S.No.73/3 or in the Government Poramboke in

R.S.No.73/1.

9.The plaintiff was examined as P.W.1 and the documents were marked through him under Exs.A.1 to A.5. The P.W.1 stated that the plaint 10

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

schedule property is a part of ancestral property and the said property was partitioned in between himself and his brothers and he got the plaint schedule property to his share in the said partition which is shown as – schedule in Ex.A.1. Since then the P.w.1 is the absolute owner of the plaint schedule property. He is in peaceful possession and enjoyment of the same with absolute rights. As per Ex.A.1 the P.W.1 got the share to an extent of Ac 0.93 cents in R.S.No.73/3 of Gadilanka village. The said R.S.No. and extent was mutated in the revenue records as per Ex.A.2. The P.W.1 has got right in

R.S.No.73/3 to an extent of Ac 0.93 cents. The same was mentioned in the said pass book. According to which the P.w.1 is the absolute owner of the plaint schedule property to an extent of ac 0.93 cents.

10.The P.W.1 ie.., plaintiff filed the suit against the defendant 1 to 10.

The defendants 1 to 6 are relating to the Government and defendants 7 to 10 are the 3rd parties. The plaintiff filed rough plan shows that ABCD marked portion in R.S.No.73/3 is an extent of Ac 0.94 cents. In PQRS portion in the plaint plan shows in red colour is relating to the D.7 to D.10. As per the contention of the P.W.1 the defendants D.7 to D.10 lived in the schedule property with permissive possession given by the P.w.1.

11.The 8th defendant was examined as D.W.1 and 9th defendant was examined as D.W.2. The Tahsildar of Mummidivaram was examined as D.W.8 who is the 3rd defendant in the above suit. The defendants denying the plaint pleadings and filed their written statement. As per the P.W.1 version the DB marked portion of the plaint plan shows as puntha and DC marked portion 11

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

shown as drainage canal. As per the D.W.1 evidence the red colour marked portion PQRS of the plaint plan is not belonged to P.w.1 and the predecessor of P.w.1 occupied the said puntha poramboke and obtained pattas from

Government officials and raised huts in the said properties and they are living in the said premises since decades. The patta were marked as Ex.B.1 to

Ex.B.3.

12.The D.W.8 who is the Tahsildar of Mummidivaram admitted the

Ex.B.1 to B.3 and stated that the property covered under Ex.B.1 to Ex.B.3 is belonged to D.7 to D.10 and D.W.8 further contended that the patta land was on the canal bund and the irrigation Department is not shown as a party to the suit proceedings and non-joinder of party the suit is liable to be dismissed. As per the plaint plan EFGH portion shown as thatched shed belongs to the plaintiff. The P.W.1 stated that the 7th defendant asked P.W.1 to give shelter in the said PQRS portion and the same was recommended by the

Sarpanch and subsequently they got pattas from the Government constructed their houses on sites going to be allowed in the Gadilanka village and to the north of the plaint schedule property the panchayat formed a cement road by the Grampanchayat and on that the defendants 7 to 10 and others filed an application to extend the cement road to the east of their houses. The P.W.1 further contended that the defendants 7 to 10 became trespassers and they are not entitled to continue in the unlawful possession in the plaint schedule property and their sheds are lying on the eastern side of the plaint schedule property which is shown in the plaint plan causing hindrance for free passage of cars, vehicles and cattle to pass through from 12

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

the schedule property to reach the Puntha on the east of the plaint schedule property.

13.The D.w.1 to D.W.8 denied with the allegations made by the P.W.1 that there is a fencing in between the house of the defendants 7 to 10 and the plaintiff. They further contended that the D.7 to D.8 are residing in the

Government poramboke which is adjacent to the irrigation canal. The

Government also issued patass in favour of the defendants under Exs.B.1 to

B.3. On that aspect the plaintiffs did not cross examined on Exs.B.1 to B.3.

The P.W.1 gave a representation on 23.01.2007 to the Assistant Engineer,

APEPDCL under Ex.A.3 and the acknowledgments are marked as Ex.A.4 and

Ex.A5. Even though the P.w.1 did not take steps on that representation further.

14.The P.w.1 admitted in his cross examination that there is a puntha/Donka on the northern side and eastern side of P.W.1 sister’s land by name Basava Venkatalakshmi and she was not a land less poor. The said

Basava Venkatalakshmi is to the north adjacent owner to the north of the plaint schedule property. He further admitted that there is a puntha or donka from adjacent to the house of his elder brother to the Adilakshmi temple and further admitted that a cement road was laid up to the land of Kommireddi

Bhyravaswamy and he further represented that there is a dilapidated wall on the north-east corner of the plaint schedule property.

15.As per the admissions made by the P.W.1 the defendants 7 to 10 are encroached the Government poramboke/puntha poramboke. As he stated that there is no documentary proof to show that he permitted the D.7 to D.10 to live in the plaint schedule property. As per the version of D.W.8 13

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

who is the Government official clearly stated that the Defendants D.7 to D.10 are residing in Sy.No.73/1 as per the Ex.A.1 the plaint schedule property is situated in R.S.no.73/3 which clearly shows that the Sy.No.73/3 is not relating to Ex.A.1. The P.w.1 did not filed any document for appointment of commissioner to measure the plaint schedule property under Ex.A.1 and

Ex.B.1 to Ex.B.3 as the suit was filed by the P.w.1 for recovery of possession.

On that aspect the P.W.1 stated that the suit schedule property was measured by the Mandal surveyor after filing of the suit. Even though the P.w.1 did not filed the Mandal surveyor report in this case to prove that the D.7 to D.10 are raised sheds in the plaint schedule property in R.S.no.73/3.

16.Basing on the versions of the P.w.1 and the D.Ws there is no iota of evidence filed by the P.w.1 that the defendants 7 to 10 are encroached the plaint schedule property and raised sheds in the plaint schedule property in

R.S.no.73/3. The P.w.1 further stated that there is an electrical pole situated in the north east corner of the plaint schedule property and the said pole is not erected in the plaint schedule property which is the puntha. The D.7 to

D.10 are also provided drinking water by laying pipe line. As per the version of the D.Ws the drinking pipe line was laying on the drainage canal bund and the same fact was admitted by the P.W.1. As per the versions of the P.W.1 the survey numbers of the plaint schedule property and the survey numbers of the defendants 7 to 10 are not one and the same. The said Peddireddi

Pallamraju, Mahadasa Apparao, Veedi Venkanna and Lanka Abbulu were examined on behalf of the P.W.1 and they are admitted in their cross examination that the defendants are residing on the puntha which is adjacent to the plaint schedule property and the defendants are obstructed the ingress 14

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

and egress of the plaintiff to reach the plaint schedule property. The P.W.2 is the younger brother of the P.w.1 and he admitted that the defendants erected the electrical poles in the plaint schedule property and the plaint schedule property is an extent of 94 cents in R.S.No.73/3.

17.The P.W.3 stated that he do not know the survey numbers and further stated that he got Ac 0.18 cents coconut garden and the plaint schedule property is situated in R.S.No.73/3 to an extent of Ac 0.94 cents and the P.W.4 stated that to the east of the plaint schedule property there is a bund and one house is situated thereon and the bund width is 50 to 60 feet and the defendants 7 to 10 are poor persons and he obtained pattas and obstructed to the plaintiff to reach the plaint schedule property and t he P.W.5 stated that he do not know whether there were any house on the said bund and the said bund was 3 feet width. As per the admissions made by the P.Ws.

2 to 5 is not support to the P.W.1’s contention.

18.As per the evidential portion of P.ws. 1 to 5 the defendants obstructed for ingress and egress to reach the plaint schedule property. In view of the above discussions and circumstances as per the documentary evidence the plaint schedule property is situated in R.S.no.73/3 in an extent of Ac 0.94 cents and the defendants are residing in Government poramboke is situated in R.S.No.73/1. Therefore the sheds relating to the defendants are situated in R.S.No.73/1 which is a Government poramboke. The D.Ws also clearly shows that the defendants 7 to 10 are residing in R.S.no.73/1 and grant pattas in their favour. So the Issue No.1 was answered against the plaintiff and decided in favour of the defendants.

15

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

Issue No.2: Whether the plaintiff is entitled to the relief of recovery

of possession against defendants 7 to 10?

19. As per the P.W.1 version he deliver the property to the defendants 7 to 10 for permissive possession. The said contention was denied by the defendants and the P.W.1 did not filed any documentary evidence to show that he gave the property to the defendants for permissive possession.

There is no iota of adduced by P.W.1 that he got right on the property on the east of the plaint schedule property which is shown in the plaint plan as DC and DB. As per the plaint plan DC is the canal and DB is the drainage bund.

20.It is well settled law and the Government as abused rules and no one can occupy the drainage bunds. In this case the D.W.8 says that D.7 to D.10 are landless poor persons and the predecessors of D.7 to D.10 are occupied some extent of Government poramboke and on that the Government issued pattas who are residing in there on and the said pattas are issued in

R.S.No.73/1 to an extent of 93 cts only under Ex.B.1 to B.3. The said fact was admitted that the patta and canal bund width is 50 to 60 feet. The evidential portion of D.W.4, D.W.6, D.W.7 were eschewed. The evidential portion of

D.W.1, 2 and 5 are clearly stated that the said property relating to 73/1 is not relating to the P.W.1 and the P.w.1 have no manner of right title, interest and possession on the Ex.B.1 to B.3 schedule property.

21.The P.w.1 has no right to sought relief for recovery of possession from the D.7 to D.10 as the P.W.1 came to the court with unclean hands and there is no proof at all to prove that the Ex.B.1 to B.3 property belongs to him.

Without title in R.S.73/1 the P.W.1 has no right to ask relief for recovery of possession of the PQRS property. The D.W.8 also supporting to the contention of the D.7 to D.10 and there is no advocate commissioner was 16

Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

appointed in this case to measure the schedule property. In view of the above circumstances the Issue No.2 is not answered in favour of the plaintiff.

Issue No.3: Whether the plaintiff is entitled for Mandatory injunction

against the 6 th defendant?

22.In view of the above discussions stated supra issues 1 & 2 are not answered in favour of the plaintiff the relief of Mandatory Injunction does not arise as the 6th defendant is not encroached the plaint schedule property basing on Ex.B.1 to B.3 in supporting evidence of D.W.8. Therefore the issue

No.3 is also not answered in favour of the plaintiff.

Issue Nos.4 & 5: Whether the plaintiff is entitled for permanent

injunction against defendants 1 to 5 as prayed for?

And

Whether the plaintiff is entitled for permanent injunction against the defendants as prayed for?

23.As per the Ex.A.1 to A.5 and Exs.B.1 to B.3 clearly shows that the plaint schedule property is situated in R.S.No.73/3 and as per the Ex.B.1 to

B.3 the defendants 7 to 10 property is situated in R.S.No.73/1. In view of the above discussions stated supra in issues 1 to 3 the issues 4 and 5 does not arise. So the issues 4 & 5 are not answered in favour of the plaintiff.

Issue No.6:To what relief?

24.As the issues 1 to 5 are answered against the plaintiff, this issue was also answered against the plaintiff.

24.In the result, the suit is dismissed without costs. In the circumstances, each party do bear their own costs.

Dictated to the Stenographer, transcribed by her, Corrected and Pronounced by me in open

court on this the 12th day of October, 2018.

Sd/-K.Hima Bindu,

Junior Civil Judge, Mummidivaram.

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Draft/Fair Judgment in O.S.No. 67/07, Dt.12.10.18.

APPENDEX OF EVIDENCE

WITNESSES EXAMINED

F OR P LAINTIFFS : -

PW1/Pedireddy Balakrishna PW2/Peddireddy Pallamraju PW3/Mahadasa Apparao PW4/Veedi Venkanna PW5/Lanka Abbulu F OR D EFENDANTS :

DW1/GADE SATYANARAYANA DW2/GADEKAVAMMA DW3/GADE LAKSHMI DW4/CHELLI SRIRAMULU(ESCHEWED) DW5/CHOLLANGI KRISHNARAO DW6/KOPPISETTI GANGISETTI DW7/GUTTALA CHINAVENKANNA DW8/Y.SURYA PRAKASARAO

DOCUMENTS MARKED

F OR P LAINTIFFS :

Ex.A1:Registered partition deed dated 14.05.1981

Ex.A.2:Pattadar pass book in the name of P.W.1

Ex.A.3:Office copy of representation dated 23.01.2007 to Asst.Engineer,

A.P.E.P.D.C.L

Ex.A.4:Postal acknowledgment address to the 3rd defendant

Ex.A.5:Postal acknowledgment addressed to the 6th defendant.

F OR D EFENDANTS :

Ex.B.1:Government Patta in favour of Gada Verriyya, dt.11.11.1976

Ex.B.2:Government Patta in favour of Gada Veeraswamy dt.11.11.1976

Ex.B.3:Government patta in favour of Gada Chinaverriyya, dt.11.11.1976(Exs.B.2 & B.3 are marked subject to objection)

Sd/-K.Hima Bindu,

J.C.J

1C.C.80/2010, dt. 19.03.2020

IN THE COURT OF THE JUDL.FIRST CLASS MAGISTRATE:

MUMMIDIVARAM

Present: Smt. K.HIMA BINDU, Judl.First Class Magistrate. Thursday, this the 19th day of March, 2020.

Calendar Case No.80/2010

Between: State Sub Inspector of Police,

Mummidivaram Police Station ... Complainant

And

1. Rayudu Pushpa Somisetti, S/o Seshagiri Rao, Age: 30 years, Settibalija, Singarayipalem Village, Uppalagupatam Mandal.

2. Rayudu Seshagiri Rao, S/o China Sattiyya, Age: 60 years, Settibalija, Singarayipalem Village, Uppalagupatam Mandal.

3. Rayudu Mangayamma, W/o Seshagriri Rao, Age: 50 years, Settibalija, Singarayipalem Village, Uppalagupatam Mandal.

4. Rayudu Sathi Babu, S/o Seshagiri Rao, Age: 40 years, Settibalija, Singarayipalem Village, Uppalagupatam Mandal.

5. Illa Yajna Kumari, W/o Venkata Ramana @ Ramu, Age: 30 years, Settibalija, S.R. Nagar,Hyderabad

6. Rayudu Dhana Raju, S/o China Sattiyya, Age: 65 years, Settibalija, Singarayipalem Village, Uppalagupatam Mandal.

7. Rayudu Trimurthulu, S/o China Sattiyya, Age: 50 years, Settibalija, Singarayipalem Village, Uppalagupatam Mandal. …. Accused

This case is coming on 25.02.2020 for final hearing before this court in the presence of learned A.P.P for Prosecution and of Sri A.V.Satya Prasad, Advocate for Accused A1 to A7 and the matter having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.The Sub Inspector of Police, Mummidivaram Police Station filed the charge sheet against the accused in Cr.No.43/2010 Under Section 498-A and 323 r/w 34 of Indian Penal Code.

2C.C.80/2010, dt. 19.03.2020

2.The brief averments of the prosecution are as follows:

LW1- Rayudu Santha Kumari is the complainant in this case. The native place of LW1 is Cheyyeru Gunnepalli Village, Mummidivaram

Mandal and she is the only daughter of LW2- Seelam Satyanarayana and LW3-Seelama Neelambaram from their only son. LW2 and his son are farmers, LWs 2 and 3 performed her marriage of LW1 with the above A1 on 13.11.2005 at their house at Cheyyeru Gunnepalli Village as pr Hindu Rites and their caste customs in the presence of relatives and elders of both sides. At the time of marriage, LW2 gave Rs.

70,000/- to A1 to A3 out of the agreed dowry gifted 10 svns of gold and saree samans worth Rs. 10,000/- in the presence of the elders LW’s 5 to 8 (namely Seelam Chandra Rao, Pandikuntla Venkateswara Rao,

Pampana Gabrelu, Seelam Sudharshana Rao) and promised pay the balance amount of dowry in due course of time and the above accused agreed for the same.

Immediately, after the marriage, LWs 2 and 3 sent LW1 to the house of A2 at Singarayipalem Village, and the above accused looked after her properly. Later, after three months of the marriage, the above accused started harassing LW1, A1 used to beat LW1 at the instigation of A2 to A7 for the balance amount of dowry and an additional dowry of Rs. 50,000/- for starting a own T.V. shop by A1 or other wise to sign on empty papers for divorce. Later, A1 took LW1 away to Hyderabad, they resided at Hyderabad for 2 years and A1 looked after her properly, but when she became pregnant twice, A1 got her pregnancy 3C.C.80/2010, dt. 19.03.2020 aborted at Hyderabad, due to which she became ill, LW2 brought her to his house and the above accused used to go to the house of LWs 2 and 3 and dispute with LW’s 1 to 3 (Rayudu Santha Kumari, Seelam

Satyanaryana, Seelam Neelambaram) for the balance amount of dowry and additional dowry.

At that juncture, LW1 became pregnant again, as A1 to A3 were not taking LW1 to their house, LWs 2 and 3 put the issue before the elders, they called the above accused and as per the advise of the elders, LW’s 2 and 3 sent LW1 to the house of A2 at Singarayipalem

Village and at that time also, the above accused harassed her for the balance amount of dowry and the additional dowry. Later after one month, LW2-Seelam Satyanarayana took LW1 back to his house for delivery and she is blessed with a daughter on 04.12.2008, but none of the accused went to see LW1 and her daughter and since then, LW1 and her daughter are residing in the house of LW’s 2 and 3.

On 03.03.2010 A1 to A3 sent a message that they were coming to the house of LW2 for talks, LW2 brought LW’s 5 to 10 (namely

Seelam Chandra Rao, Pandikuntla Venkateswara Rao, Pampana

Gabrelu, Seelam Sudharshana Rao, Galidevara Krishna Murthy,

Golakoti Siva Rama Krishna) to his house, the above accused went to the house of LW2 in the evening and while the elders were discussing with them, they demanded the balance amount of dowry and

additional dowry, did not care the elders and at about 1800 hours, A1

to A3 insisted LW1 to sign on blank papers, she refused for the same, 4C.C.80/2010, dt. 19.03.2020 they beat her with hands and on seeking the same, LW’s 2 to 10 warned them and they escaped from there, proclaiming that they would come again to the house of LW2 and see the end of LW1.

On receipt of a written complaint filed in the Hon’ble Court by

LW1 which was endorsed U/Sec. 156(3) Cr.P.C. to the SHO,

Mummidivaram PS for investigation and reort, LW11-

Sri.P.Satyanarayana registered the same as the case vide Cr.No.

43/20410 U/Secs. 498-A and 323 r/w 34 of IPC on 16.04.2010 at 1300 hours and conducted due investigation.

During the course of investigation, on 16.04.2010 LW11- Sri. P.

Satyanarayana examined LWs 1 to 10, recorded their statements

U/Sec. 161 Cr.P.C. inspected the scene of offence and prepared rough sketch of the same of offence. LW12-Sri. N.Kondayya verified the investigation of LW11. The above accused A2 to A7 were surrendered

before Hon’ble AJFCM Court, Amalapuram IC Mummidivaram on

24.05.2010 and they were released on bail by the Hon’ble Court. A1 was surrendered before Hon’ble JFCM Court, Mummidivaram on 07.06.2010.

Therefore, the accused are liable for punishment for the above said Section of law. Hence, the Charge.

3.The case was taken on file against the accused Under Sections 498-A and 323 r/w 34 of IPC.

5C.C.80/2010, dt. 19.03.2020

4.After appearance of the accused, copies of the case documents were furnished to the accused as required U/Sec.207 Cr.P.C and the accused was examined 239 Cr.P.C for the offences 498-A and 323 r/w 34 IPC, for which the accused denied the offence, pleaded not guilty and claimed to be tried. Hence for trial.

5.The prosecution in support of it's case, examined PWs 1 to 7 and got marked Exs.P1 to 5 and marked as detailed in the appendix of evidence.

6. After completion of prosecution side evidence, the accused was examined Under Section 313 Cr.P.C the accused denied the incriminating evidence and reported no defence evidence. Hence defence evidence is close

7.Now the point for determination is that “Whether the prosecution has proved the guilt of Accused

for the offences punishable U/Secs.498-A and 323 r/w 34 of IPC

beyond all reasonable doubts or not?

Sec. 498-A Husband or relative of husband of a woman

subjecting her to cruelty:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- For the purposes of this section, “Cruelty” means,- 6C.C.80/2010, dt. 19.03.2020

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (Whether mental or physical) of the woman; or

(b)Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Section 323 of IPC: Punishment for voluntarily causing hurt.

Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

POINT:

8. The case of the prosecution is that the accused A1 is the husband of PW1 and their marriage was performed on 13.11.2005 at the house of PW1’s parents house and subsequently after marriage the accused harassed the PW1 for demanding additional dowry and the accused beat the PW1 indiscriminately and threatened the PW1 with dire consequences that they would see the end of PW1 and thereby the accused committed the offences punishable under Secs. 498-A and 323 r/w 34 of IPC.

7C.C.80/2010, dt. 19.03.2020

9.To prove the case of the prosecution, the prosecution has to prove that the accused has harassed the PW1 demanding to bring

additional dowry amount and the accused beat the PW1 with hands

indiscriminately within the meaning of Secs. 498-A and 323 r/w 34 of

IPC.

10.The Prosecution out of 12 witnesses examined 7 witnesses in this case. The LW3- Seelam Neelambaram was givenup by the

Prosecution. The prosecution has examined PW’s 1 to 7 and got marked Exs. P1 to P5. Ex.P1 is the complaint. Ex.P2 is the 161 Cr.P.C.

statement of PW4. Ex.P3 is 161 Cr.P.C. statement of PW5. Ex.P4 is the

FIR. Ex.P5 is the Rough Sketch.

11.In this case the defacto complainant filed the complaint under

Sections 323, 498-A r/w 34 of IPC before this Court and the same was forwarded to the SHO Mummidivaram P.S. On that the SHO registered the case under Crime No. 43/2010 dated 16.04.2010. After made investigation the SHO filed the charge sheet against the accused and the Hon’ble Court framed the charges against the accused persons under Sections 498-A, 323 r/w 34 of IPC. The Police investigated the above case and recorded the statements from 10 witnesses. The prosecution has examined 7 witnesses out of 12 witnesses.

12. The LW1 was examined as PW1 and she is the defacto complainant herein and she stated that the accused No.1 is the husband and their marriage was performed on 13.11.2005 at the 8C.C.80/2010, dt. 19.03.2020 house of the parents of the PW1 at Cheyyeru Gunnepalli Village as per

Hindu Caste Custom and the accused No.2 and 3 are the parents of the 1st accused and in-laws of the PW1 and the 4th and 5th accused are the younger brother and sister of the 1st accused and the 6th and 7th accused are the Senior and Junior paternal uncles of the 1st accused. At the time of marriage the accused 1 to 7 demanded the parents of the

PW1 for Rs. 1,00,000/- as dowry and 10 sovereigns of gold. At the time of marriage the PW2 and LW3 who are the parents of the PW1 gave Rs.

70,000/- to A1 to A3 in the presence of A4 to A7 and LW4 to LW8 and later all the accused demanded for additional dowry. At the time of marriage the PW2 and LW3 who are the parents of the PW1 paid

Rs.10,000/- towards adapaduchu lanchanam and Rs. 10,000/- paid for sari samons. After the marriage the 1st accused lead happy marital life with the PW1 for a period of 3 months and subsequently all the accused demanded for payment of balance of Rs. 30,000/- and

additional dowry of Rs. 50,000/- and to establish showroom and

demanded PW1 to obtained signatures on empty papers of divorce.

During the miserable life the PW1 gave birth to a female child. The 1st accused with the support of other accused persons harassed the PW1 and tried to abortion the pregnancy of the PW1 and on that the PW1 went to the parents house. Subsequently the 1st accused went to the in-laws house and meet the PW1 and beat the PW1 miserably. Due to that the PW1 suffered ill health. On that the PW1 raised the dispute

before the elders and the elders admonished the illegal acts of the

9C.C.80/2010, dt. 19.03.2020 accused persons. Eventhough the accused persons proclaiming that they will see the end of the PW1 and as a result she will not go to in- laws house and the matter was placed before LW10 who is the Vice-

President of Ch. Gunnepalli Village and the accused persons did not heard the words of the elders. As such the PW1 gave a report to the

SHO Mummidivaram P.S. but the SHO did not taken any action against the accused persons. Then the PW1 filed a complaint. The complaint was marked as Ex.P1.

13. The PW1 in her cross examination stated that her parents did not given any landed property and her parents did not possess any landed property and they are doing coolie works. It is true at the time of marriage the 1st accused is working as a T.V. mechanic at

Hyderabad and she cannot say the date of putting up of family at

Hyderabad and after marriage the PW1 stayed at Chintal at Hyderabad for a period of 3 months only. After that in September 2007 she did not get any dengue fever and the accused did not given any medical treatment and did not paid any medical expenses for her treatment.

The PW1 do not know for how many days she was at hospital and she cannot say the bills of the hospital. She denied all the allegations. The elders names were stated in the cross examinations and they are

Seelam Prakasa Rao, Bokka Venkata Rao and Bokka Srinivasa Rao acted as elders to settle the dispute between the PW1 and the accused 1st accused. The PW1 also stated that her parents and elders advised them to reside at Singarayapalem. On 09.09.2008 the 1st accused 10C.C.80/2010, dt. 19.03.2020 brought the PW1 to Singarayapalem. On 10.09.2008 the 1st accused took the PW1 to V.N. nursing home Amalapuram and the hospital authorities confirmed about the pregnancy and at that time the PW1 was carrying 6 month pregnancy and then she went straight away to her parents house from the hospital. The PW1 further stated that on 10.09.2008 the doctor scanned and disclosed about the female child.

So that the 1st accused demanded her for abortion. The PW1 stated the said fact to the police and the same was mentioned in her chief and the same was mentioned before the police about the abortion issue.

The medical reports were not handed over to the police. Subsequently her advocate Kona Srinivasa Rao got issued legal notice to the accused and her advocate advised to the accused persons to go for D.N.A. Test to know whether the female child will be borned through the 1st accused and if the test came to negative then she will give divorce. No

D.N.A. Test was conducted and later the 1st accused filed O.P. 7/2010

before the Hon’ble Senior Civil Judge Court, Amalapuram seeking the

decree of divorce. The remaining suggestions were denied by the PW1 in her cross examination.

14.The LW2 was examined as PW2 and the LW7 was examined as

PW3 who is her father and elder of the PW1. They stated same version as stated by the PW1 in her chief evidence. There is no corroborative evidence in between them. At the time of cross examination the PW2 stated that he came to know that the 1st accused and the brother of

PW1 joined the PW1 in hospital by name Saint Terissa Hospital, 11C.C.80/2010, dt. 19.03.2020

Yerragadda and on that his son and the 1st accused spent an amount of

Rs. 85,000/- towards medical expenses. Till 17.09.2007 the PW1 was in patient in the said hospital and they brought the PW1 to his home on 17.09.2007 at Cheyyeru Gunnepalli Village. The PW2 have no personal knowledge about the affairs of the PW1 and the 1st accused prior to hospitalization. The PW2 also stated that he came to know through

PW1 about the issue after the PW1 reaching home. Subsequently they taken the PW1 to nursing home for treatment and the doctors informed that the PW1 is a pregnant and after came to know that the female child was borned to the PW1 and they placed the dispute before Kona

Srinivasa Rao, Advocate. As per the advise of Kona Srinivasa Rao they agreed to send the PW1 for D.N.A. Test to know whether the female child was born to the 1st accused and if the test came negative then she will give divorce. The remaining suggestions were denied by the

PW2.

15.The PW3 is also stated like as PW2 and he further stated that at the time of marriage the PW2 gave Ac. 0.05 cents of land to the PW1 and Rs. 50,000/- towards dowry by the demand of the parents of the 1st accused. In his cross examination he stated that he never visited

Hyderabad where the 1st accused and the PW1 used to reside and he came to know that the 1st accused filed divorce petition prior to the filing of this case.

16.One P.Venkateswara Rao was examined as PW4 and he turned hostile. One G. Siva Rama Krishna was examined as PW5 and he also 12C.C.80/2010, dt. 19.03.2020 turned hostile. The PW4 and PW5 statements were marked as Exs.P2 and P3.

17.The P.Satyanarayana who is the SI of Police, Kakinada was examined as PW6 and he stated that he received Ex.P1 from the

Hon’ble Court and he registered the case under Crime No. 43/2010

under Sections 498-A, 323 r/w 34 of IPC. The original FIR was marked as Ex.P4 and on the same day he visited the scene of offence and got drafted the rough sketch which is marked as Ex.P5 and he secured

PW1 to PW5 and LW3 to LW5, LW8 and LW9 were examined and recorded their statements and handed over the case to the LW9. In his cross examination he stated that he did not examined the adjacent owners of the PW2 by name Mekala Srinu, Gollapati Srinubabu and R.

Suranna. The remaining suggestions were denied by the PW6.

18. The N.Kondayya who is the Inspector of Police was examined as PW7 and he stated that he verified the investigation done by the

PW6 and he filed the charge sheet in this case. In his cross examination he denied the suggestions.

19.On perusal of evidences it shows that out of 12 witnesses some of the witnesses were given up by the prosecution and the PW4 and

PW5 were turned hostile and the remaining witnesses who are PW2 and PW3 are the parents of the PW1 and PW6 and PW7 are the investigation officers. As per the evidential portion of the PW1 to PW3 some disputes were arised in between the PW1 and the 1st accused 13C.C.80/2010, dt. 19.03.2020 basing on the birth of the female child. The prosecution did not examined the Kona Srinivasa Rao who is the counsel of the PW1 as he acted as a elder and tried to settle the dispute. But the accused persons did not agreed to send the PW1 and the female baby for

D.N.A. Test. The elders PW4 and PW5 are turned hostile and they did not stated anything about this case. Moreover the prosecution failed to prove the guilt of the accused persons under Sections 498-A IPC because the additional dowry demanded by the accused persons or if any harassment made by the accused persons to the PW1 in this aspect there is no iota of evidence adduced by the prosecution and the ingredients of Sec. 498-A of IPC was not proved by the prosecution at any stage or evidences of their witnesses. Moreover the main and material witnesses were givenup by the prosecution and closed their evidence. Non-examination of material witnesses were fatal to the prosecution case.

20.the learned counsel for the accused argued that the prosecution failed to prove the guilt of the accused persons beyond all reasonable doubts. As per the Ex.P1 complaint no case was established by the prosecution for demand of additional dowry and under Section 323 IPC there is no proof at all to show that the 1st accused beat the PW1 at her parent’s house. If really the 1st accused beat the PW1, the PW2 and

PW3are present at the time then they will present complaint against the 1st accused but they did not do so. The only reason to raise the dispute before the elders for whether the female child was born to the 14C.C.80/2010, dt. 19.03.2020

PW1 through 1st accused. The accused 2 to 7 are the parents, sister, brother and Junior and Senior paternal uncles of the 1st accused and they never visited the scene of offence at any point of time and they never visited the houses where the 1st accused and the PW1 resided at

Chintal.

21.Basing on the evidential portion of PW1 to PW3 there is no case was made out against the accused 2 to 7. When there is no proof or evidence about the presence of A2 to A7 the Section 34 of IPC does not attracted and the involvement of all the family members of the 1st accused was not proved by the prosecution.

22.It is well settled law that the PW1 has to prove the primafacie case about the illegal acts and demands of the accused and the burden is on the part of the PW1to establish the guilt of the accused persons beyond all reasonable doubts.

23.In this case the prosecution miserably failed to prove the case against the accused persons and their involvement in it. In those circumstances, the Court found that the accused persons were not found guilty under the above sections and the benefit of doubt goes in favour of the accused persons and accordingly the accused persons are entitled for acquittal.

24.The prosecution did not established the guilt of the accused for the offences punishable under Secs. 498-A, 323 r/w 34 of IPC and no cogent and convenience evidence was deposed by the prosecution 15C.C.80/2010, dt. 19.03.2020 witnesses. In the light of the above said reasons, I am of the considered opinion that the accused persons are not found guilty for the offences punishable under Secs. 498-A, 323 r/w 34 of IPC and they are entitled for acquittal.

25. In the result, the accused 1 to 7 are found not guilty for the offences punishable Under Sections 498-A, 323 r/w 34 of IPC.

Accordingly, accused 1 to 7 are acquitted U/Sec. 248(1) Cr.P.C. The bail bonds of the accused 1 to 7 shall stand cancelled after lapse of appeal time. There are no material objects marked in the present case.

Typed to my Dictation by Stenographer, corrected and

pronounced by me in the open court this the 19th day of March, 2020.

J.F.C.Magistrate

Mummidivaram.

Appendix of evidence

Witnesses examined.

For Prosecution:

PW1/05.03.2019 R. Santhakumari

PW2/05.03.2019 Seelam Satyanarayana

PW3/05.08.2019 Pampana Gabriel

PW4/05.08.2019 Pandikuntla Venkateswara Rao

PW5/19.08.2019 G.Siva Rama Krishna

PW6/03.02.2020 P.Satyanarayana

PW7/18.02.2020 N.Kondayya 16C.C.80/2010, dt. 19.03.2020

For Defence:Nil

Exhibits marked

For Prosecution:

Ex.P1/ Report given by PW1 Ex.P2/ 161 Cr.P.C. statement of PW4 Ex.P3/ 161 Cr.P.C. statement of PW5 Ex.P4/ First Information Report Ex.P5/ Rough Sketch

For Defence:Nil

MOs marked.

Nil

J.F.C. Magistrate, Mummidivaram.

17C.C.80/2010, dt. 19.03.2020

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDL.FIRST CLASS MAGISTRATE:

MUMMIDIVARAM

Present: Smt K.HIMA BINDU, Judl.First Class Magistrate.

Thursday, this the 19th day of March, 2020

C.C.No. 80/2010

Date of Offence: Prior to 03.03.2010

Complaint: 16.04.2010

Apprehension of accused : 21.07.2010 Released on bail : 24.05.2010 (A2 to A7) Released on bail : 09-06-2010 Commencement of trial: 05.03.2019

Close of trial: 18.02.2020

Sentence/ Order: 19.03.2020

Reasons for delay: Due to non-production of witnesses by prosecution.

Name of the Complainant:

State Inspector of Police, Mummidivaram Police Station.

Name of the Accused:

1. Rayudu Pushpa Somisetti, S/o Seshagiri Rao, Age: 30 years, Settibalija, Singarayipalem Village, Uppalagupatam Mandal.

2. Rayudu Seshagiri Rao, S/o China Sattiyya, Age: 60 years, Settibalija, Singarayipalem Village, Uppalagupatam Mandal.

3. Rayudu Mangayamma, W/o Seshagriri Rao, Age: 50 years, Settibalija, Singarayipalem Village, Uppalagupatam Mandal.

4. Rayudu Sathi Babu, S/o Seshagiri Rao, Age: 40 years, Settibalija, Singarayipalem Village, Uppalagupatam Mandal.

5. Illa Yajna Kumari, W/o Venkata Ramana @ Ramu, Age: 30 years, Settibalija, S.R. Nagar, Hyderabad.

6. Rayudu Dhana Raju, S/o China Sattiyya, Age: 65 years, Settibalija, Singarayipalem Village, Uppalagupatam Mandal.

7. Rayudu Trimurthulu, S/o China Sattiyya, Age: 50 years, Settibalija, Singarayipalem Village, 18C.C.80/2010, dt. 19.03.2020

Uppalagupatam Mandal.

Offence: U/Sec. 498-A and 323 r/w 34 of IPC .

Plea of accused : Not guilty

Finding : Not guilty

Sentence : In the result, the accused 1 to 7 are found not guilty for the offences punishable Under Sections 498-A, 323 r/w 34 of IPC. Accordingly, accused 1 to 7 are acquitted U/Sec. 248(1) Cr.P.C. The bail bonds of the accused 1 to 7 shall stand cancelled after lapse of appeal time. There are no material objects marked in the present case.

J.F.C.Magistrate, Mummidivaram.

Copy submitted to the Hon’ble Chief Judl.Magistrate, East Godavari, Rajamahendravaram.

Fair Judgment

IN THE COURT OF THE JUNIOR CIVIL JUDGE: MUMMIDIVARAM

PRESENT: SMT. K.HIMA BINDU,

Junior Civil Judge, Mummidivaram

Wednesday, this the 11th day of March, 2020.

O.S.No 59/2013

Between:

1. Cheekurumilli Akkamma, W/o Suryanarayana, Hindu, Age: 65 years, House wife, Cheekurumillivaripeta, H/o Pallamkurru, Katrenikona Mandal.

2. Cheekurumilli Suresh, S/o Ramaswamy, Hindu, Age: 25 years, Cheekurumillivaripeta, H/o Pallamkurru, Katrenikona Mandal.

3. Cheekurumilli Ratnaprasad, S/o Suryanarayana, Hindu, Age: 35 years, Cultivation, Cheekurumillivaripeta, H/o Pallamkurru, Katrenikona Mandal.

4. Cheekurumilli Vishnuprasad, S/o Suryanarayana, Hindu, Age: 30 years, Cultivation, Cheekurumillivaripeta, H/o Pallamkurru, Katrenikona Mandal. …Plaintiffs

And

1. Pamu Nagaveni, W/o Nakuludu, Hindu, Age: 50 years, House wife, Cheekurumillivaripeta, H/o Pallamkurru, Katrenikona Mandal.

2. Sape Nagamma, W/o Adinarayana, Hindu, Age: 70 years, Cheekurumillivaripeta, H/o Pallamkurru, Katrenikona Mandal.

3. Sape Narayanamurthy, S/o Adinarayana, Hindu, Age: 45 years, Cultivation, Cheekurumillivaripeta, H/o Pallamkurru, Katrenikona Mandal.

4. Cheekurumilli Rambabu, S/o Venkatanarayana, Hindu, Age: 30 years, Balaram Nagar, Malkajgiri, Safilguda, Hyderabad.

5. Geddam Adi Lakshmi, W/o Venkata Reddy, Hindu, Female, Age: 40 years, Serulanka, Pamarru Mandal. (5th Defendant added as per orders in IA 47/2019, dt. 18.03.2019) …Defendants

This suit is coming on 12.02.2020 for hearing before me in the presence of Sri Sri. G.V.Rama Rao, Advocate for the plaintiffs and Sri. K. Tatam Raju, Advocate for the 1 to 3rd defendantsand 5th defendant and 4th defendant dismissed and upon perusing the material on record and having stood over for consideration till this day, this court made the following

J U D G E M E N T

1.This suit is filed by the plaintiffs and against the defendants 1 to 3, 5 to declare their title and title of the 4th defendant in respect of the plaint schedule property and grant consequential relief of delivery of possession of the schedule property by ejecting the defendants 1 to 3, 5 therefrom by due process of law in their failure to deliver on their own accord and direct them to render future accounts in respect of profits and award costs of the suit and grant such other reliefs.

2.The brief and relevant facts pleaded in the plaint are that:

The plaint schedule property originally belonged to

Cheekuirumilli Ramaswamy S/o Adayya of Pallamkurru. Ramaswamy required title and possession to the schedule property under registered sale deed dated 22-08-1925 and obtained delivery of possession of the said property.

Cheekurumilli Suryanarayana and Venkatanarayana are the sons of ( Cheekurumilli Ramaswamy. The Ist plaintiff is the wife of

Suryanarayana and daughter in-law of Cheekurumilli Ramaswamy. The plaintiffs 3 and 4 are the sons of Suryanarayana and Ist plaintiff and thus paternal grand children of Ramaswamy. Cheekurumilli

Ramaswamy is another son of Ist plaintiff and late Suryanarayana. The 2nd plaintiff is the son of Ramaswamy and paternal grandson of

Suryanrayana and Ist plaintiff. Thus all the plaintiffs are the legal heirs of Ramaswamy representing the brancy of Suryanarayana, one of the son of Ramaswamy.

Cheekurumilli Venkatanarayana is the another son of late

Cheekurumilli Ramaswamy. He is no more. The 4th defendant is representing Venkatanarayana. Since the 4th defendant is residing at

Hyderabad he is not in a position to pursue the legal remedy along with the plaintiff, though he got interest over the schedule property.

As such for complete and affective disposal of the suit. 4th defendant is added as proforma party to the proceedings. Thus the suit is filed by the plaintiffs for declaration of their title and title of 4th defendant to the schedule property and for delivery of possession of the property by ejecting the defendants 1 and 3 there from with other suitable reliefs.

It is submitted there used to be a tiled house originally in the schedule property. The tiled house consists of one room and hall.

Besides that there used to a thatched hut decorated with grass as roof. Subsequently the tiled house and the thatched hut were removed and the schedule property was kept vacant. Since the schedule property is a dry land, the Government did not collect any taxes.

Cheekurumilli Ramaswamy died intestate leaving his son

Suryanarayna and Venkatanarauyana while enjoying the schedule property. Subsequently his sons came into possession and enjoyment.

After the death of Suryanarayna and Venkatanarayana, the plaintiffs and 4th defendant came into joint possession and enjoyment of the schedule property.

The defendants 1 to 3 are distant relatives to the family of plaintiffs and 4th defendant. On account of the blood relationship the defendants 1 to 3 approached the plaintiffs and 4th defendant and sought for permission to reside in the schedule property by raising convenient thatched house with their expenses. Thus the defendants 1 to 3 came into possession and enjoyment of the schedule property with the permission of plaintiffs and 4th defendant about 10 years approximately, with that permission the defendants 1 to 3 raised thatched house and also secured Electricity services connection to the house property. The thatched house raised by the defendants 1 to 3 is small in nature. As per the terms, the defendants 1 to 3 have to pay house tax and current charges if any, in respect of the house in the schedule property. As per the oral settlement of terms, the defendants 1 to 3 shall not make any permanent constructions in the schedule property and they have to deliver the property to the plaintiffs and 4th defendants as when they revoked permission and sought for delivery of possession of the property. Agreeing to the above terms the defendants 1 to 3 were inducted in possession of the property.

The plaintiffs are having their own property adjoining to the plaint schedule. The defendants 1 to 3 for the best reason known to them caused some sort of inconvenience and interference for ingress and egress to reach their own property across the plaint schedule. In that connection disputes arose in between the plaintiffs and defendants 1 to 3. So under those circumstances, the plaintiffs and 4th defendant revoked the permission and demanded the defendants 1 to 3 to deliver possession of the schedule property by thinking that allowing them to continue in possession would cause lost of inconvenience and affect the proprietary rights. Therefore the plaintiffs for themselves and on behalf of 4th defendant demanded the defendants 1 to 3 to vacate the schedule property. But the defendants 1 to 3 did not oblige their just demand and on the other hand all of them collude and making some secret efforts behind the back of the plaintiffs so that to make permanent constructions in the property by exhibiting hostile intention. It is also notices by plaintiffs that the defendants 1 to 3 approached Tahsildar for obtaining some certificate relating to the property in their name with the dishonest and fraudulent intention to knock away the property. The plaintiffs having come to know those facts rushed to the office of Tahsildar, Katrenikona and raised their grievances in respect of the property by explaining how the defendants 1 to 3 came into possession of the property.

Having convinced with claim made by the plaintiffs the Tahsildar,

Katreniknoa refused to extend any help from his side to the defendants 1 to 3 as required under law. Thus these facts clearly made allowing the defendants 1 to 3 in the property would cause serious properietory damage to their property and so also may give scope to them to squat on the property by exhibiting hostile intention.

9-A) After the death of 2nd defendant the 5th defendant was along with other defendants enjoying the estate of the deceased 2nd defendant ( para9-A was added as per orders in I.S. 47/2019 dt 18-03-2019.

Hence the suit.

4. The 2 nd defendant filed written Statement denying the

allegations of the plaint. Defendants 1, 3, 4 and 5 adopted the

written statement of 2 nd defendant. The brief averments of

the written statement are that:

It is submitted that the property is not the property of plaintiffs and the 4th defendant. It is the absolute property of this defendant.

The defendant did not obtained any permission ro reside in the property. Actually the defendants are no residing in the alleged schedule property. The defendants are residing in R.S.No. 581/1 which is a Gramakantam land since their forefathers but nto since 10 years as alleged in the plaint. The plaintiffs are not having any property adjoining to the schedule property. Actually the schedule property is not situated adjoining the property of the defendants. Boundaries mentioned in the alleged sale deed or in the plaint will not tally each other for the existing property and the boundaries mentioned in the schedule for the correspondent new boundaries for the old boundaries are also not true and correct. On the north of the defendants house there is a old road is existing and recently it will changed as cement road. Actually the plaintiffs never in the possession of the property situated on the west of the property of the defendant and it is not their property. The plaintiffs are also not residents of that area and they are not having any houses in that area and they never in that area.

It is humbly submitted that the 1st defendant is the daughter of the 2nd defendant and the defendants 3 is son-in-law of the 1st defendant. The 2nd defendant is residing in her house since her forefathers and she used to do small kirana shop in his thatched house. Neatly 4 years back she planned to construct a pucca house with the financial assistance of the Government. She applied for possession certificate from the Government and she obtained possession certificate and constructed the house at the height of lentil level. It become eye sore to the some of her family enemies and bring the present plaintiffs with false claim. The land of the defendants situated in R.S.No. 581/1 but not in the R.S.No. 462 as alleged in the plaint. There is no need to the defendants to get permission to reside in their own and they did nto get permission to live in the land of the plaintiff. The plaintiff are not having possession of the plaint schedule property. Presently the adjoining property of the defendants property is vacant without having any constructions or houses. If the property will measured with the assistance of the Mandal Surveyor the real truth will come out. The plaintiffs did not issued any prior notice alleging that the defendants are residing with their permission and they did not demanded for eviction.

It is further submitted that the plaintiffs 3 and 4 got issued a legal notice dt 06-04-2013 to the defendant and to some others claiming the schedule property is their own and schedule property of them only and alleging that the defendants they having house on the western side of schedule property and the defendants obtain the financial assistance from the Government and the defendants are trying to occupy the part of the schedule property and demanded the defendant to stop the constructions on the encroached portion. In the said notice the plaintiffs stated that on western side of the plaint schedule the house property of the defendants are situated and they did not stated the alleged permission from the plaintiffs to reside in the plaint schedule property. Contrary to the notice allegations the present plaint was filed denying the owner ship of the defendants for their house. The defendants got issued a reply notice to the notice of the plaintiffs. Now by changing another advocate and by creating a new story the plaintiff filed this suit with false allegations. They did not issued any rejoinder notice for their earlier notice nor denied the reply notice allegations in the plaint. They did not even mention the exchange of the notices prior to the filing of the suit.

It is humbly submitted that the suit is bad for non-joinder of the necessary parties. There are three daughter for the late Ramaswamy and they are also having share in the schedule property but they were not added as parties in the suit. There some more legal heirs to the two sons of the Rama Swamy but they were also not added in the suit.

Mr Suryanarayana had 3 sons and 5 daughters they were also not added. Actually the R.S.No. 462 is not situated nearly by the house of the defendants and it is situated far away from the house of the defendants. Actually the alleged grand father of the plaintiffs Mr.

Ch.Rama Swamy and his son Suryanarayana sold an extent of Ac. 0.10 cents out of the plaint schedule property to Mr. Karneedi Subbayya under a registered sale deed in the year 1935. The said Subbayya executed a registered gift deed the property in favour of his daughter.

So the plaintiffs are not having any rights or possession over the entire property of Ac. 0.15 cents and if the ownership of the property will declared the said K.Subbayya and his daughter are also necessary parties to this suit. There is cause for the suit and the suit is bad for non joinder of the necessary parties. The suit is also barred by limitation. Hence the suit is dismissed with costs.

5.Basing on the above pleadings, the following issues are settled for trial;

1. Whether the plaintiffs have got right, title over the suit schedule property?

2. Whether the plaintiffs are entitled for the declaration that

they are the absolute owners of suit schedule property?

3. Whether the plaintiffs are entitled for the delivery of the

suit schedule property to the plaintiffs after ejecting

the defendants 1 to 3 from the schedule property?

4. To What relief?

6.During the course of trial, the 3rd plaintiff was examined as PW1 and Ex.A1 was marked through him. Ex.A1 is the certified copy of sale deed dated 22.08.1925 in the name of Cheekurumilli Rama Swamy.

The defendants 1 to 3, 5 did not adduced any evidence on their side and no documents were marked on their behalf. Hence the defendant evidence was closed.

7. Heard Arguments on behalf of both sides. Perused the record.

8.Issue No’s: 1 to 4:

1.Whether the plaintiffs have got right, title over the suit schedule property?

2. Whether the plaintiffs are entitled for the declaration that they are the absolute owners of suit schedule property?

3. Whether the plaintiffs are entitled for the delivery of the

suit schedule property to the plaintiffs after ejecting

the defendants 1 to 3 from the schedule property?

4. To What relief?

9.The plaintiffs filed the suit for declaration against the defendants 1 to 3, 5 declaring that the title of the 4th defendant and plaintiffs in respect of the plaint schedule property and grant consequential relief of delivery of possession of the schedule property by ejecting the defendants 1 to 3, 5 therefrom by due process of law in their failure to deliver on their own accord and direct them to render future accounts in respect of profits and award costs of the suit.

10.The PW1 stated that originally the plaint schedule property is belonged to Cheekurumilli Rama Swamy s/o Adayya of Pallamkurru

Village. The said Rama Swamy acquired right and possession over the schedule property under registered sale deed dated 22.08.1925 and obtained possession on the date of documents itself. Since then the said Rama Swamy is in possession and enjoyment of the same. The said Cheekurumilli Rama Swamy have two sons by name

Suryanarayana and Venkatanarayana. The 1st plaintiff is the wife of

Suryanarayana and daughter-in-law of the said Rama Swamy. The 3rd and 4th plaintiffs are the sons of 1st plaintiff and Suryanarayana. The plaintiffs 1 to 4 are the branch of Suryanarayana. The 2nd plaintiff is the grandson of Suryanarayana. The 4th defendant is the son of

Venkatanarayana. Previously there is a titled house besides to that thatched house is situated in the schedule property and subsequently they were removed and kept vacant. The defendants 1 to 3 are the distant relatives to the family of the plaintiffs. On account of relationship the defendants 1to 3 approached the plaintiffs and sought for permission to reside in the schedule property by raising convenient thatched house at their expenses and on that the plaintiffs and 4th defendant accord permission at about 10 years back by the date of filing of this suit. The defendants 1 to 3 raised thatched shed and obtained electricity connection. As per the oral instructions the defendants shall not permitted to raise permanent constructions and as and when they revoked the permission then the defendants 1 to 3 has to deliver the property to the plaintiffs and 4th defendant.

Subsequently the defendants 1 to 3 caused troubles to the plaintiffs and 4th defendant. The plaintiffs are having own property adjacent to the plaint schedule property. Subsequently the defendants without handed over the schedule property and continuing the same and they are trying to effect the priority rights then they demanded the defendant 1 to 3 to vacate the schedule property. But they did not heard the words of the plaintiffs and elders and with an dishonest intention to knock away the schedule property. On that to safeguard the property the plaintiffs filed this suit. The defendants filed their written statement and they denied the allegations mentioned in the plaint. The Ex.A1 was marked through PW1 and the Ex.A1 is the certified copy of the sale deed dated 22.08.1925 in the name of

Cheekurumilli Rama Swamy.

11.The learned counsel for the defendants 1 to 3, 5 cross examined the PW1. The PW1 in his cross examination, he stated that the said

Rama Swamy is the paternal grandfather of PW1. The Rama Swamy is having two sons by name Suryanarayana and Venkatanarayana and five daughters by name Janipalli Anantha Lakshmi, Janipalli Parvathi,

Rayudu Sarojini, Giddi Venkataramana, Paramata Satyavathi. The father of the PW1 by name Suryanarayana is having three sons by name 3rd plaintiff, 4th plaintiff and one late Rama Swamy. The said late

Rama Swamy is having wife by name Suseela and son by name Suresh, who is the 2nd plaintiff herein and daughter by name Paramata Vijaya.

The PW1 further admitted that the 2nd defendant is running Kirana

Shop in the schedule property and witness adds that she is running

Kirana Shop with their permission only and he further admitted that the defendants raised foundation prior to the four months of filing of the suit and on that they got issued legal notice to the defendants 1 to 3 through their advocate Dasari Satyanarayana and on that the defendants got issued reply notice. The PW1 further admitted that he cannot say the details of the reply notice and he further stated that he cannot say whether the defendants constructed the construction with the aid of A.P. Housing or not. The remaining cross examination was denied by the PW1.

12.The defendants did not adduced their evidence before this Court and they did not filed any documentary proof along with their written statement. On condition imposed by the Hon’ble Court, these defendants failed to produce the evidence. To that effect the evidence of the defendants side was closed. The counsel for the plaintiffs argued in this case stating that the grandfather of the PW3 purchased the schedule property under Ex.A1 and after the death of the said Rama

Swamy, his sons Suryanarayana and Venkatanarayana succeeded the estates of the deceased Rama Swamy. The plaintiffs are the legal heirs of the Suryanarayana and the 4th defendant is the legal heir of

Venkatanarayana. The defendants 1 to 3 are the distant relatives to the plaintiffs and 4th defendant and with the permission of the plaintiffs and 4th defendant the defendants 1 to 3 raised a thatched house in the schedule property and resided therein. Subsequently with a fraudulent intention to knock away the schedule property and the defendants created troubles to the plaintiffs. There is no other alternative to safeguard their property and therefore they obliged to file this suit for declaration and possession. Eventhough the Hon’ble Court gave so many adjournments to the defendants to discharge their pleadings but they did not turned up. Therefore the defendants failed to prove their burden.

13.In view of the above circumstances and discussions stated supra all the issues are answered in favour of the plaintiffs and against the defendants.

14.In the result the suit is decreed with costs in favour of the plaintiffs and against the defendants 1 to 3, 5 by declaring that the plaintiffs and the 4th defendant is the absolute owner of the schedule property and directing the defendants 1 to 3 and 5th defendant to deliver the possession of the schedule property within two months from the date of decree or otherwise the plaintiffs and the 4th defendant will proceed under due process of law. The remaining reliefs sought by the plaintiffs that the future profits or other profits are dismissed.

Typed to my dictation by Stenographer, corrected and

pronounced by me in the open Court on this the 11th day of March,

2020.

Junior Civil Judge,

Mummidivaram

Appendix of Evidence

Witnesses Examined

For Plaintiffs:

PW1: Cheekurumilli Ratna Prasad

For Defendants: Nil

Documents Marked

For Plaintiffs:

Ex.A1/ Certified copy of sale deed dated 22.08.1925 in the name of Cheekurumilli Rama Swamy.

For Defendants: Nil

Junior Civil Judge, Mummidivaram

1 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

IN THE COURT OF THE SPL.OFFICER CUM JUNIOR CIVIL

JUDGE: MUMMIDIVARAM.

Present: Smt K.Himabindu, Spl.Officer cum Junior Civil Judge Tuesday, this the Twenty third day of January, 2018.

A.T.C. 4 of 2010

Between:- Akula Mangayamma, W/o Tatarao, Age 55 years, Hindu, Landlady, R/o Pallam, H/o Kandikuppa,

Katrenikona Mandal....Petitioner

And

Danduprolu Swamy, S/o Meerayya, Age 45 years, Dr.No.2-192, G.Moolapolam,

I.Polavaram Mandal.….. Respondent

This petition is coming on 19.01.2018 for final hearing

before this court in the presence of Sri N.V.Suryanarayana &

Sri G.V.Ramarao, Advocates for petitioner and Sri K.Tatam Raju & Sri G.Srinivasa Rao, Advocates for respondent and the matter having stood over for consideration till this day, this court delivered the following:

O R D E R

This is an application filed U/Sec.15 & 16 of

A.P.Tenancy Act 1956.

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

The schedule mentioned is the absolute property of the petitioner herein. She purchased the same through her maternal grandfather Danduprolu Meerayya under registered sale deed

dated 20.09.1975 from one Danduprolu Rudrayya and his son

Dhanakasulayya for a valuable consideration of Rs.10,000/- and her maternal uncle the respondent herein and the petitioner’s brother attended before the sub-registrar at the time of 2 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

registration of sale deed on behalf of the petitioner and that the petitioner is duly put in possession of the property in pursuance of the said sale deed and that the petitioner’s maternal grandfather used to look after and manage the property and he used to pay the proceeds to the petitioner herein after denying the expenses of cultivation including taxes payable on the land. It is further averred that 15 years back after the death of Meerayya the property was leased out to the respondent who is no other than the maternal uncle of the petitioner on condition of his paying 24 bags of paddy per year under two spells i.e., 12 bags of paddy payable by 15th January every year and another 12 bags payable by 31st March every year. Since he is no other than the maternal uncle he is paying taxes on behalf of the petitioner and deducting the same from out of the rent payable for 1st and 2nd crops. It is further averred that the petitioner’s husband was present at the time of settlement of lease terms and that in view of close relationship no lease deed was taken and no receipts were also passed and that the petitioner also obtained a loan from

G.Vemavaram P.A.C.S by executing a bond under Doc.No.1093 of 1997 in favour of the society. It is further averred that the respondent did not pay the rent due by 15th January,2010 and the due date for payment for 2nd crop is also past approaching, but he is not making payment of rents. Since Meerayya is the 3 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

grandfather of the petitioner the original title deed and pattadar pass book and title deed issued by Government and tax receipts were left with him and they are continuing in the custody of the respondent. After making so many demands the petitioner got issued a registered notice dt.17.03.2010 to the respondent for 1st crop of 2009-10 and also requesting for 2nd crop rent. The respondent received the notice but he did not pay the rent nor issued any reply. On that grounds the petitioner requested to order eviction of the respondent from the schedule property directing him to put the petitioner in possession of the same and in case of his failure to do so directing ejectment of the respondent from the schedule property through process of law.

3.The brief averments of the counter filed by the respondent are as follows:

The allegations mentioned in the petition are absolutely false. It is humbly submitted that the petition schedule property is the absolute property of the petitioner and the same was purchased by the father of the respondent and kept in the name of the petitioner and that the property is not delivered to the petitioner and the possession was kept with the father of the respondent only from the date of purchase and that the father of the respondent never issued any usufructs to the petitioner at any time. It is further averred that on 22.12.1988 the petitioner sold 4 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

the property to the sister of the respondent namely Koppanathi

Ganga Ratnam under an agreement of sale after receiving full consideration of Rs.25,000/- and since then the said Gangaratnam become the absolute owner of the petition schedule property and the original sale deed and pattadar pass books were with her and the petitioner is nothing with the petition schedule property. It is further submitted that the respondent is cultivating the property and the property is of Ganga Ratnam. There is no relationship of landlord and tenant between the petitioner and the respondent and that the respondent did not paid any rent to the petitioner at any time. So the Hon’ble Tenancy Tribunal has not jurisdiction to adjudicate the dispute and that Gangaratnam is necessary party to these proceedings and the petition is bad for non joinder of necessary parties. On the above grounds the respondent requested to dismiss the petition.

4.Now the point for determination is:

Whether the petitioner is entitled for eviction of the respondent from the petition schedule property as prayed for?

5.On behalf of the D.Hr, the D.Hr himself examined as

P.w.1 who deposed that the J.Dr is having sufficient means and he is avoiding to pay the decree amount. In the cross examination the witness deposed that the J.Dr has got capacity to repay the debt.

The J.Dr owes Rs.1,00,000/-.

5 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

6.The petitioner filed this petition for eviction of the respondent from the petition schedule property. The petitioner was examined as P.W.1. Exs.P.1 to P.W.4 are marked through her evidence. Ex.P.1 is the certified copy of registered sale deed dt.20.09.1975, Ex.P.2 is the office copy of lawyer notice dt.17.03.2010, Ex.P.3 is the postal acknowledgment and Ex.P.4 is the reply notice dt.05.04.2010. The respondent did not raise any objection at the time of marking of Exs.P.1 to P.4. The husband of the petitioner was examined as P.W.2. The C.E.O., PACS

Chodisetti S.V.V.B.Nageswara Rao of G.Vemavaram village was examined as P.W.3 and Ex.X.1 certified copy of registered bond was marked through his evidence.

7.The respondent filed counter and denied the averments in the petition. The respondent was examined as R.W.1 and

Exs.R.1 & R.2 are marked through his evidence. Ex.R.1 is the original registered sale deed in the name of petitioner dt.20.09.1975 and Ex.R.2 is the land revenue receipts 3 in nos. No other evidence was adduced on behalf of the respondent.

8.Both the counsel for the petitioner and respondent submitted their oral arguments.

Point:

9.The P.W.1 filed the property from Danduprolu Rudrayya under Ex.P.1 through her maternal grandfather Danduprolu 6 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

Meerayya. At the time of registration of Ex.P.1 this respondent, his father and P.W.1 brother attended before the registrar. P.W.1 maternal grandfather used to look after and managed the petition schedule property during his life time. After the death of her maternal grandfather by name Meerayya she leased out the petition schedule property to this respondent who is no other than her maternal uncle on condition of by paying 24 bags of paddy per year under two spells i.e., 12 bags of paddy payable by 15th

January every year and other 12 bags of paddy payable by 31st

March every year and the respondent is paying taxes on behalf of the P.W.1. The R.W.1 used to pay the rents as agreed upon after deducting the taxes payable. R.W.1 failed to pay the maktha to the P.W.1 since 15th January 2010. The P.W.1 got issued Ex.P.2 demand notice to the R.W.1. The postal acknowledgment is

Ex.P.3. The P.W.1 filed the tax receipts which were marked as

Ex.P.4.

10.The P.W.1 admitted in her cross examination that the

P.W.1 did not witnessed the execution of Ex.P.1. The P.w.1 was not present at the time of delivery of the property and also stated that P.W.1 cannot say to whom the sale consideration was paid.

The attestor of Ex.P.1 is P.W.1’s brother and another attestor is

R.W.1 who is the respondent herein. P.W.1 further stated that she do not have any knowledge about the lease terms and conditions.

7 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

11.As per the admissions made by the P.W.2 in his cross examination that P.W.1 is not present at the time of registration of

Ex.P.1. Danduprolu Meerayya who is the maternal grandfather of

P.W.1 was present at the time of Ex.P.1. P.W.2 paid the sale consideration of Ex.P.1. P.W.2 was not present at the time of

Ex.P.1 property was got delivered. P.W.2 again stated that he paid sale consideration of Rs.10,000/- to Danduprolu Meerayya but not to Danduprolu Rudrayya. P.W.2 cannot say the boundaries of the petition schedule property. P.W.2 admitted in his cross examination that he never cultivated the property from the date of purchase of Ex.P.1. Late Meerayya used to cultivate and after demise R.W.1 used to cultivate the property. The R.W.1 used to come and pay the Maktha to P.W.1 after demise of Meerayya. No witnesses were present when the rent was paid by R.W.1 to us.

There is no letter correspondence in between the R.W.1 and P.W.2 and no proof regarding payment of money towards rent. The

R.W.1 received the cyclone relief fund from the court. The R.W.1 agreed to pay the rents and committed default in payment of rents from the year 2009.

12.The P.W.1 and P.W.2 denied the contentions of the respondent and the R.W.1 denied the pleadings of the P.w.1. As per the versions of the P.Ws. 1 & 2 are close related to each other.

As per the admissions made by the P.Ws. 1 & 2 they are not 8 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

present at the time of transaction of Ex.P.1. The Ex.P.1 is the certified copy of the sale deed. The documents were filed by

R.W.1 which was marked as Ex.R.1. The admission of fact need not be proved under sec.58 of Indian Evidence Act and the admissions made by the P.Ws.1 & 2 in their cross examinations are come under order 12 Rule 6 of C.P.C. Therefore Ex.P.1 property was in the name of P.W.1 if it is come under binamee transaction, the said Act was banned by the Government and there is no value in the eye of law and the said document is not valid document. Sec.54 of Transfer of Property Act not applicable to P.w.1 under Ex.P.1.

13.The P.W.1 got issued Ex.P.2 notice to the R.W.1 for eviction of the petition schedule property and deliver vacant possession. The said notice was received by R.W.1 and did not give any reply to Ex.P.2. Ex.P.4 is the land revenue taxes in the name of the P.W.1. Mutation of name in the revenue records are not a title to the property. As per Ex.P.1 and Ex.R.1 are clearly shows that the petition schedule property is in the name of P.w.1.

The said facts were not disputed by R.W.1. Originally Ex.P.1 is in the custody of R.W.1 and the same was marked as Ex.R.1.

14.As per the versions of P.W.1 and P.W.2 and R.W.1 title of the property is not disputed and disputed the possession of the property under Ex.P.1 and Ex.R.1. Ex.P.1 and Ex.R.1 are one and 9 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

the same i.e., original and certified copy of the title deeds. The

C.E.O., PACS, G.Vemavaram stated in his chief and cross examinations that the P.w.1 received loan in the year 1997 an amount of Rs.50,000/-. The certified copy of bond was marked as

Ex.X.1. The P.W.3 admitted in his cross examination that the

Adangal copy issued by the V.R.O., but not M.R.O., and he do not know that M.R.O is the competent authority to issue Adangal. The

Ex.X.1 stands in the name of the petitioner and there can be many people with same name in the society. It is concluded that the

P.w.1 name is mutated in the Adangal which support to the Ex.P.1 and P.W.1 is in possession and enjoyment of the petition schedule property.

15.The R.W.1 stated that the petition schedule property was purchased by his father in the name of the petitioner and the property was not delivered to the petitioner and the possession was kept with his father only from the date of Ex.P.1 and Ex.B.1 document. The vendor of Ex.P.1 and Ex.B.1 is close relative of father of R.W.1. The father of R.W.1 never issued any usufructs or maktha to the petitioner at any point of time. Later on 22.12.1988 the P.W.1 sold the property to the sister of R.W.1 by name

Koppanathi Gangaratnam under agreement of sale for a valuable consideration of Rs.25,000/- and received the same. The original sale deed and pattadar pass book were with said Koppanathi 10 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

Gangaratnam and she is the absolute owner of the petition schedule property. The P.w.1 is nothing with the petition schedule property. The R.W.,1 cultivating the property and the property of

Koppanathi Ganga Ratnam. There is no landlord and tenant relationship between the P.W.1 and R.W.1 and the R.W.1 did not pay any Maktha to P.W.1 at any point of time. The Koppanathi

Ganga Ratnam is proper and necessary party to the proceedings and this Hon'ble court has no jurisdiction to adjudicate the matter.

16.The learned counsel for the petitioner cross examined at length and the R.W.1 clearly admitted in his cross examination that P.W.1 is niece of R.W.1. The father of R.W.1 blessed with 4 daughters and one son,the mother of the petitioner is Kamadi

Narayanamma who is the elder sister of R.W.1 and another sister by name Koppanathi Ganga Ratnam was died about one year back. The husband of Gangaratnam is alive and Gangaratnam blessed with one son and one daughter. The husband and children of the Gangaratnam are not aware of the proceedings. The petition schedule property is in the name of P.W.1 and Ac 0.60 cents adjacent of the petition schedule property is in the name of

Meerayya who is the father of P.W.1. The father of R.W.1 purchased the petition schedule property in the name of P.W.1 for land ceiling purpose and the schedule property is in my possession and enjoyment since 1975 and taxes paid by the R.W.1 11 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

in his name and the same was filed before this Hon'ble court and there is no evidence to show that except Ex.R.2 the petition schedule property is in my possession and enjoyment. The R.W.1 present at the time of Ex.R.1 and signed as an identifying witness in Ex.P.1 and Ex.B.1. The original name of the father of R.W.1 is

Meerayya and also known as Saheb. The Gangaratnam possessed other property and the R.W.1 not cultivating the other properties of Gangaratnam and further admitted that Ex.P.4 and R.W.1 got issued reply notice. As per evidence of R.W.1 the property purchased in the name of P.W.1 is an admitted fact and the possession of the property was in the custody of R.W.1. The said fact was also admitted by the P.W.1 and P.W.2. Therefore there is no dispute of the title of the P.W.1 under Ex.P.1 and Ex.B.1.

17.As per the pleadings of the petition the P.W.1 is landlord and R.W.1 is the tenant but as per the evidences of P.Ws.

And R.W.1 there is no iota of evidence filed by the P.W.1 that the

R.W.1 is a tenant in the petition schedule property. Once the

R.W.1 denied the averments of the petition and filed his counter that the property was sold by P.W.1 to Gangaratnam. The said

Gangaratnam is in the possession of the said property. But the

P.W.1 did not raise any objection or not taken any step on the 12 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

aspect the title and possession of Gangaratnam. The R.W.1filed sale agreement executed by P.W.1 in favour of Gangaratnam on that the petitioner counsel raised objection at the time of marking of the said sale agreement dt.22.12.1988 and denied the sale agreement. As per the Amendment Act in the year 1986 if any possessory agreement for sale consideration subsequent to

August 1986 requires Stamp Duty and Penalty and registration.

According to the amendment the possessory sale agreement

dated 22.12.1988 cannot be taken into consideration and it is not

admissible in the evidence. The possessory sale agreement will not give any legal right to acquire the ownership over the property unless he obtains registered sale deed required under law. The petitioner counsel did not cross examined on the aspect of title of

Gangaratnam and did not take any steps on the contention of the respondent i.e., non-joider of proper and necessary party.

18.The petitioner did not filed any documentary proof relating to the landlord and tenant relationship under the

A.P.Tenancy Act and she failed to prove her case under

A.P.Tenancy Act. According to the versions of P.Ws. And R.Ws there is no landlord and tenant relationship the petitioner has to approach in the civil court if she is having any grievance.

13 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

19.Under the above discussions and circumstances, the petitioner failed to prove her case under sec.15 & 16 of

A.P.Tenancy Act.

20.In view of the above discussions the petition is dismissed without costs.

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

pronounced by me in the open court this the 23rd day of January, 2018.

Sd/- K.Himabindu,

Spl.Officer cum Junior Civil Judge, Mummidivaram.

Appendix of evidence

Witnesses examined

For petitioner:

P.W.1/15.03.2013A.Mangayamma P.W.2/19.06.2014Akula Tatarao P.W.3/01.04.2016Chodisetti S.V.V.B.Nageswara Rao

For respondent:

R.W.1/27.11.2017Danduprolu Swamy

Exhibits Marked

For petitioner:

Ex.P.1:Certified copy of registered sale deed dt.20.09.1975 Ex.P.2:Office copy of lawyer notice dt.17.03.2010 Ex.P.3:Postal acknowledgment Ex.P.4:Reply notice dt.05.04.2010. Ex.X.1:Certified copy of registered bond

For respondent:

Ex.R.1:Original registered sale deed in the name of petitioner dt.20.09.1975 Ex.R.2:Land revenue receipts 3 in nos.

Sd/- K.Himabindu,

S.O cum J.C.J. Mummidivaram 14 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

Petition filed on 08.04.2010 Registered on 07.05.2010.

IN THE COURT OF THE SPL.OFFICER CUM JUNIOR CIVIL JUDGE:

MUMMIDIVARAM.

Present: Smt K.Himabindu, Spl.Officer cum Junior Civil Judge Tuesday, this the Twenty third day of January, 2018.

A.T.C. 4 of 2010

Between:- Akula Mangayamma, W/o Tatarao, Age 55 years, Hindu, Landlady, R/o Pallam, H/o Kandikuppa,

Katrenikona Mandal....Petitioner

And

Danduprolu Swamy, S/o Meerayya, Age 45 years, Dr.No.2-192, G.Moolapolam,

I.Polavaram Mandal.….. Respondent

This is an application filed U/Sec.15 & 16 of A.P.Tenancy Act 1956 requesting the court for eviction of the respondent from the schedule property directing him to put the petitioner in possession of the same failing which directing enactment of the respondent from the schedule property through process of law.

A court fee of Rs.3/-is paid.

This petition coming on 19.01.2018 for final hearing before this court in the presence of Sri N.V.Suryanarayana & Sri G.V.Ramarao,

Advocates for petitioner and Sri K.Tatam Raju & Sri G.Srinivasa Rao,

Advocates for respondent, and the matter having stood over for consideration, till this day, this COURT DOTH ORDER AND DECREE as follows:

that the petition be and the same is hereby dismissed without costs;

Copy of plaint schedule is herewith attached.

Given under my hand and the Seal of the court, this the 23rd day of January, 2018.

Sd/- K.Himabindu,

Spl.Officer cum Junior Civil Judge, Mummidivaram.

15 Draft/Fair order in A.T.C.4/2010, dt.23.01.2018.

PARTICULARS OF COSTS

Costs memo not filed on either side

Sd/- K.Himabindu,

S.O cum J.C.J. Mummidivaram.

NOTE:

“The parties should apply, as soon as possible,

for return of all exhibits which they wish to

preserve, as the record will be liable to be

destroyed after three years from the date of

decree or order”.

Decree in ATC 4/2010, Dt.23.01.2018.