Smt K.Nagamani

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IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE SRIKAKULAM

PRESENT:- Smt. K.Nagamani,

Principal Senior Civil Judge, Srikakulam.

Tuesday, the 18th Day of April, 2023

ORIGINAL SUIT No.295/2013

Between:

Gorle Lavanyavathi, wife of Asirinaidu, aged 60 years, Hindu, Agriculture, residing at Door No.1-39, Kotapalem village, Patarlapalli post, Ranasthalam Mandalam, Srikakulam District … Plaintiff And:

1. Suravaram Thamminaidu s/o late Kaminaidu, aged 68 years, V.R.O, r/o Suravaram village, Jalumuru Mandalam, Srikakulam District. (Died)

2. Suravaram Sivaprasad s/o Thamminaidu, aged 43 years, Ex. Surpanch rest do.

3. Majji Meenakshi w/o Damodarrao, 59 years, Hindu, House hold duties, resident of Door No.2-2/11-13/2, Rella Veedhi, Srikakularn town and District.

4. Potnuru Vijayaratnam w/o Papinaidu, 61 years, Hindu, Household duties, Regidi Village, Post and Mandalam Srikakulam District.

(The names of defendants 3 and 4 are added as per order passed in I.A 684/18 Dt.04-06 2018)

5. Suravaram Prabhavathi w/o late Thamminaidu, aged 68 years, house wife, r/o Suravaram village, Jalumuru Mandalam, Srikakulam District.

6. Suravaram Sudharshanaraju s/o late Thamminaidu, aged 47 years, private employee rest do-

7. Suravaram Rajasekhar s/o late Thamminaidu, aged 39 years, Business, rest do-

8. Suravaram Anil Kumar s/o late Thamminaidu, aged 37 years, private employee rest do-

9. Tadi Lalitha w/o Sripathi Nehru, aged 43 years, c/o Tadi Satyanarayana (late) Ex MLA, Gajapathinagaram village & Mandalam, Vizayanagarm District.

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10. Kandi Samanthakamani w/o Muralinaidu (Ex-Counselor), aged 41 years, house wife, Kotha Agraharam, near Sub-Registrar Office, Gajularega village and Mandalam, Vizayanagaram District.

(The names of defendants 5 to 10 are added as per orders in I.A 206/2020

dated 23/02/2022)

… Defendants

This suit is coming on 11-4-2023 for final hearing before me in the presence of Sri P. Paparao, Advocate for the plaintiff and of Sri T. Lakshminaidu, Advocate for the Defendants no.1,2,5, 7 to 10; Sri G.S.KrishnaPrasad, Advocate for the defendants no.3 and 4; D6 having been called absent and set exparte and the matter having been stood over till today for consideration, this court delivered the following:

JUDGMENT

01. This is a suit filed by the plaintiff against the defendants, for permanent injunction restraining the defendants, their men and agents kith and kin from over interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property in any manner what so ever and for costs of the suit.

02. The material averments of the plaint in brief are as follows :-

The plaintiff is the own sister of the 1st defendant and the 2nd defendant is the son of the 1st defendant, the suit schedule property was given to the plaintiff by her father in the year 1996 as Pasupu Kunkuma and since then the Plaintiff is in peaceful possession and enjoyment of the suit schedule property with absolute rights without any interruption from anybody and the Revenue authorities have also entered the name of the plaintiff as the owner of the property in all the Revenue records and issued pattadar pass 3

Book and title deed and Adangal in favour of the plaintiff. The plaintiff used to pay land revenue continuously without any default and obtained cistu receipts and the Government sanctioned input subsidy for the loss of the crop in the year 2011 and issued cheque for Rs.7,440/- in the name of the plaintiff and the same was enchased by the plaintiff and the plaintiff was also obtained crop loan of Rs.65,000/- from A.P Grameena Vikas Bank, Buditi by pledging the suit schedule property and she used to cultivate the suit schedule property personally by engaging agricultural labour with mechanized form tools and used to raise paddy, green gram and black gram crops in the suit schedule property. The defendants being the resident of the village taking advantage that the plaintiff is come to the village Suravaram now and then for the purpose of cultivate the land, the defendant No.1 made proposal to the plaintiff to sell away the suit schedule property to him, for which the plaintiff bluntly refused the proposal of the 1st defendant, the defendant bore grudge against the plaintiff and by hook or crook they wanted to grab the suit schedule property by dispossess the plaintiff and they are powerful persons having henchmen, and as the 1st defendant being an Ex-Village

Administrative Officer and 2nd defendant worked as Surpanch of the said village since long time, they have been unauthorisedly trying to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and they have no sort of right of any manner, having been proclaiming in and around the suit schedule property that they would unauthorisedly trespass into the suit schedule property, hence the suit is filed for permanent injunction.

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3. D1 filed the written statement which was adopted by D2 by denying the material allegations of the plaint and contested that the Plaintiff was never in physical possession of the plaint schedule property on and by the time of filing the above suit, the Plaintiff is the sister of 1st defendant, 1st defendant has 3 brothers namely 1)Vivekanandarao who is no more now 2) Baburao and

3) Srinivasarao and the legal heirs of deceased brother vivekanandarao filed a suit for partition in O.s.No.8/2004 on the file of the 1st Additional District

Court, Srikakulam with all false and untenable allegations against some other properties, in the said suit, this defendant was figured as 1st defendant, in the said suit Baburao and Srinivasarao are figured as defendants 2 and 3, when the evidence on both sides was completed, the Plaintiff herein filed a petition under Order 1 Rule 10 to implead her and other sisters as parties to the said suit, accordingly the Plaintiff was impleaded as 4th defendant and other sisters were impleaded as 5th and 6th defendants in the said suit, after the Plaintiff was impleaded as 4th defendant, she filed her written statement in the said suit in the year 2007. At page 2 in para 3 the said written statement it was specifically pleaded as “My father died intestate. All the properties of my father are all his self- acquired properties, my father was telling me that he has written a document saying that he will give some lands to me. But no property was given to me at all. After the demise of my father.

I requested my brother Thamminaidu to give my share of the property in the entire assets of my late father Sri. Survaram Kaminaidu, but my brother

Thamminaidu was always evading on some pretext or other. Hence, I got issued a registered notice through T.Mohana Rao on dt.21-4-2004 demanding 5 partition and to give me my share of the property". Her cross- examination was commenced on dt.11-10-2007. In the cross- examination also she did not admit that she was given certain land at any stage and it is very clear that the

Plaintiff was not given any land either by her father or by this defendant, therefore it is utter false for the plaintiff to state that the suit schedule property was given to her by her father in the year 1996 as Pasupu Kunkuma and since then she is in peaceful possession and enjoyment of the suit schedule property with absolute rights without any interruption from anybody as falsely stated in Para III a) of the plaint and the Plaintiff did not hesitate to file the above suit with deliberate false pleas, the Plaintiff cannot, therefore, be said that she has been in possession of the schedule property on and by the date of filing the above suit and the suit schedule property is popularly known as "Chinni Krishnamnaidu patti". The said land was in fact given to the

Plaintiff and her 2 other sisters namely 1) Potnuru Vijayaratnam of Ungarada in Regidi-Admadalavalasa Mandalam and 2) Majji Meenakshi, Wife of

Damodhararao of Srikakulm. The said land is at a distance of nearly 100 KM's from the residential place of Plaintiff, It is highly difficult for the Plaintiff and her family members to come and raise crops on the suit schedule property, she and her other sisters, therefore, entrusted the management of the total land to 1st defendant and 1st defendant has been raising various crops on the said land as Manager for some time and he used to give amounts in cash for every Sankranthi in January not only to the Plaintiff and other 2 sisters, further the Plaintiff and other 2 sisters received huge amounts for every happy occasion from this defendant stating that they have no interest over 6 the said schedule property and directed this defendant and his 2nd son who is the 2 defendant herein to exercise all acts of ownership as they have received huge amounts to their satisfaction, besides the said amounts, the Plaintiff has deliberately taken nearly 200 Tulas of gold ornaments of mother and 300 tulas of silver articles after the life time of mother during the life time of father, the father did not agree for the plaintiff to take 200 tulas of gold ornaments and 300 tulas of silver articles and he used to demand the Plaintiff to return the said gold ornaments and the Plaintiff did not return the said gold ornaments and on the other hand, she disclosed her father not to see his face during his life time, accordingly she did not attend the cremation of

Kaminaidu though she and her family members were informed by this defendant, the Plaintiff did not attend even for 11 days ceremony of her father who died in 1998. 1st defendant was given the suit schedule property to raise crops on it and this defendant has been raising various wet and dry crops on the said land with active assistance of his son the 2nd defendant herein, this year also they raised paddy crop on the suit schedule land and when the said paddy crop is ripened for cutting, the Plaintiff, her family members tried to take-away the paddy crop raised on the suit schedule land by force in order to show that they are in possession of the said land though the plaintiff never in the possession of the said land, 1st defendant father did not die intestate, he executed a Will where-under he bequeathed among other properties, the suit schedule land to be devolved on the 2nd defendant and his other youngest brother Suravaram Rajasekhar, In spite of the said bequest, 1st defendant, 2nd defendant and other son did not object for the 7 same since they have also great love and affection towards the Plaintiff and other 2 sisters and this defendant has been giving certain amounts in cash and also provisions to the Plaintiff and her two sisters though he already parted more than sale price of the suit schedule property in cash to all his sisters including the plaintiff, they also never raised any objection or dispute at any time against 1st defendant, hence the Plaintiff is not the exclusive owner of the plaint schedule property and other 2 sisters are having equal share in the suit schedule property and the plaintiff falsely claiming exclusive right in the suit schedule property, therefore the suit is mis-conceived and the same is bad in law. The Plaintiff deliberately brought into existence the

Revenue records just before filing the above suit by managing the revenue authorities, the Plaintiff is not entitled to get her name mutated in the revenue records exclusively, likewise, the Plaintiff also managed to obtain the land revenue receipts for the purpose of filing the above suit, the said documents are not valid in the eye of law. This suit for mere Injunction is not legally maintainable and as per her own statement, she gave notice to this defendant demanding partition of the alleged properties of Kaminaidu.

Though 1st defendant did not receive the said notice, as per his case in

O.S.No.8/2004, this defendant denied the right, title, interest and physical

possession of the Plaintiff in the suit schedule property, the Plaintiff must file the suit for declaration of her alleged title and for other consequential reliefs if her claim is in time. The above suit is false, frivolous and vexatious. The

Plaintiff need not file the above suit separately and if she has any legal right, the same can be agitated in the pending suit in O.S.No.8/2004. Hence, the 8

Plaintiff is liable to pay damages to this defendant towards compensation. 1st defendant, therefore prays to dismiss the suit with exemplary costs in the interests of justice.

4. D3 filed written statement which was adopted by D4 by contesting that the defendants 3 and 4 are sisters and impleaded in the above suit subsequently when they came to know the pendency of the suit before this court, actually the suit schedule property is joint and undivided among the plaintiff and defendants No.3 and 4, the suit schedule property is the self acquired property of their father and in the year 1996 the father of the plaintiff and defendants 3 and 4 transferred the properties to the plaintiff and defendants No.3 and 4 by way of settlement deed, since then, the defendants 3 and 4 and plaintiff are enjoying the same jointly by appointing the 1st defendant as Manager of the property for cultivation purpose as he is their own brother and the same fact was admitted by the 1st defendant in his written statement. The brother of 4th defendant used to cultivate the suit schedule properties as his own interest and affection towards his sisters i.e., defendants No.3 and 4 and plaintiff, since then, the properties were not partitioned among the defendants No.3 and 4 and plaintiff, so still the said suit schedule property is in joint possession of the defendants No.3 and 4 and plaintiff and in previous suit i.e. O.S.8/2004 on the file of Addl. District Judge,

Srikakulam filed by the 1st defendant and others, the plaintiff admitted above said facts in her pleadings, the plaintiff never enjoyed the suit schedule 9 property exclusively and she never got Pattadar pass book and title deed on the status of exclusive owner, the plaintiff is not the exclusive owner of the suit schedule property and having no right, title, interest over the suit schedule property. There is no cause of action to file the suit. the suit is not maintainable under law and therefore prays to dismiss the suit with costs in the interest of justice.

5. D7 filed written statement which was adopted by D5, D8 to 10 by reiterating the averments of the written statement filed by D1 and also contesting that Why and how the proposed defendants added in the suit proceedings are interfering is nowhere mentioned in their I.A. and as such they could not carry out the amendment in the plaint, in absence of the pleadings why and how the proposed defendants interfered the suit is not tenable under law rather not maintainable according to law and that the suit prayer relief is not support their contention and the plaintiff would have file a suit for the relief of declaration of her title, mere tampering the revenue records and brings forth this false suit, fetch no purpose unless and until the title is strictly proved, since the relief of injunction under specific performance

Act is equitable relief in nature, no title confers on their pleadings much less in absence of plaint amendments, mere adding of the parties without proclaim the cause of action and relation to the suit schedule etc. is nowhere found in the amended plaint and hence the adding of parties in the suit is not tenable under law in absence of non-mentioned cause of action and correlation with their suit schedule property and there is no cause of action for adding the parties, rather there is no specification found in the amended plaint, there are 10 no bonafide grounds to allow the suit as prayed for and suit is not maintainable under law and therefore prays to dismiss the suit with exemplary costs in the interest of justice.

6. Basing on the pleadings, the following issues are settled for trial:

1. Whether the plaintiff is in possession and enjoyment of suit schedule property?

2. Whether the plaintiff is entitled for permanent injunction as prayed for?

3. To what relief?

Additional Issue:

1. Whether the suit for mere injunction without seeking the declaration of title is maintainable or not?

2. To what relief?

7. In order to substantiate the case of the plaintiff, Pw1s 1 to 3 are examined and Ex.A1 to A11 got marked. On behalf of the defendants, Dws1 to 5 are examined and Ex.B1 and B2 got marked (memo filed by the ld.

Counsel for the plaintiff that by mistake documents are marked through PW1 twice i.e., on 16-8-2017 and 29-1-2019 i.e., Ex.A1 to A7 and Ex.A1 to A8 respectively hence documents marked on 29-1-2019 and its subsequent dates has to be considered and defendants reported no objection for it).

8. Heard both sides.

9. The ld. Counsel for the plaintiff argued that the plaintiff is the owner of the suit schedule property and she is in the possession and enjoyment of the same. In support of her case she also filed Ex.A1 to A11 and adduced the evidence of Pw2 and 3 which is corroborating with the evidence of Pw1 and originally the suit schedule property belongs to the father of the plaintiff and

D1, D3 and D4 and he settled the same in favour of the plaintiff by way of pasupu kumkuma in the year 1996 since then she is in possession and 11 enjoyment of the same and revenue authorities also recognized her title and possession over the same and issued pattadar pass book, title deeds and adangals in her favour and government also sanctioned input subsidy for the loss of crop in the year 2011 and issued cheque for Rs.7440/- and she also obtained crop loan from APGVB on the suit schedule property, therefore she is in possession and enjoyment of the suit schedule property and there is no necessity to file the suit for declaration of title as the defendants did not submit any documents to prove that the plaintiff is not the owner of the suit schedule property. Therefore when the defendants are trying to interfere into the suit schedule property she filed the suit for grant of permanent injunction therefore the decree has to be passed in her favour.

10. On the other hand the ld. Counsel for D2, D5, D7 to D10 argued that the plaintiff is not the owner of the suit schedule property and D3, D4 being the sisters of plaintiff are also having title and possession over the suit schedule property along with the plaintiff, D5 to D10 are added as LRs of D1 as D1 died during pendency of the suit and D3, D4 and plaintiff entrusted the suit schedule property to D1 and D2 and during the lifetime of D1 he used to cultivate the suit schedule property along with D2 and used to give ambaram to the plaintiff and D3, D4 every year, therefore D1 and D2 are in possession and enjoyment of the suit schedule property but not the plaintiff, hence the suit is liable to be dismissed, as the suit is not filed for declaration of title and the suit is filed for mere injunction which is not maintainable. D3 and D4 also argued that they are also having right and title over the suit schedule property alongwith plaintiff hence the suit is not maintainable against the co- 12 owners of the property and the suit is also not maintainable for injunction simpliciter hence the same is liable to be dismissed.

ADDITIONAL ISSUE NO.1 DT.15-12-2022

11. As can be seen from the record available before this court according to the evidence adduced by the plaintiff her father is the owner of the suit schedule property. It is also an admitted fact by the defendants that originally the father of D1, D3, D4 and the plaintiff is the owner of the suit schedule property. According to the plaintiff the father of the plaintiff settled the suit schedule property in favour of the plaintiff in the year 1996 by way of pasupu kumkuma since then she is in possession and enjoyment over the suit schedule property. Defendants also admitted that the father of the plaintiff is the owner of the suit schedule property but their contest is the father of the plaintiff settled the suit schedule property by way of document in favour of plaintiff, D3 and D4 but no documentary evidence adduced by the defendants to show that the father of the plaintiff settled the suit schedule property in favour of the plaintiff, D3 and D4 but their evidence and arguments impliedly shows that the father of the plaintiff settled the suit schedule property in favour of plaintiff, D3 and D4. Therefore they are admitting the ownership of the plaintiff over the suit schedule property but their case is along with the plaintiff D3, D4 are also the owners of the suit schedule property. As per the decision of the Hon’ble Apex court held in between Anathula sudhakar vs.

P. Buchi Reddy (Dead) by LRs and others on 25-3-2008 in Civil

Appeal no.6191/2001 it was held that- “a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff’s 13 title raises a cloud on the title of the plaintiff to the property. A cloud is set to raise over a person’s title when some apparent defect in his title to a property or when some prima-facie right of a 3rd party over it is made out or shown.

Where the plaintiff has clear title supported by documents if a trespasser without any claim to title or an interloper without any apparent title merely denies the plaintiff’s title it doesn’t amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient and in a suit for permanent injunction to restrain the defendant from interfering with plaintiff’s possession, the plaintiff will have to establish that as on the date of suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession and the question of title is not in issue in such a suit though it may arise incidentally or collaterally. “

12. And their lordships further held that –“where there is merely an interference with plaintiff’s lawful possession or threat of dispossession it is sufficient to sue for an injunction simpliciter. As a suit for injunction simpliciter is concerned only with possession normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the findings on possession.”

13. Therefore the above decision is very clear that when there is no cloud in respect of title of the plaintiff a suit for mere injunction is sufficient if the defendants trying to interfere with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property.

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14. Here in the present case on hand also on one hand the defendants are admitting about the ownership of plaintiff over the plaint schedule property but their admission is D3, D4 are also having right and title over the suit schedule property. Whether D3 and D4 are having right over the suit schedule property or not it will be decided in the later issue. But the defendants are also admitting about the ownership of the plaintiff over the suit schedule property then a suit for declaration of title is not required and a suit for mere injunction is maintainable. Accordingly additional issue no.1 is answered.

ISSUE NO.1

15. The case of the plaintiff is that in the year 1996 the suit schedule property was given to her by her father by way of pasupu kumkuma since then she is in peaceful possession and enjoyment over the suit schedule property with absolute rights without any interruption from anybody and revenue authorities also recognized her right, title and possession over the suit schedule property and issued Ex.A1, A2 and A9 i.e., pattadar pass books and title deed in her favour and her name was also mutated in the revenue records. Therefore adangals and cistu receipts are also issued in her name i.e., EX.A3 to A5 and A11 and the government also sanctioned input subsidy for the loss of crop in the year 2011 and issued cheque for Rs.7,440/- in her name and the same was encashed by her. She also obtained crop loan of

Rs.65,000/- from APGVB, Budithi by pledging the suit schedule property therefore she is in the exclusive possession of the suit schedule property. But the defendants being the residents of the village taking advantage that she has to come to Suravaram Village now and then for the purpose of cultivation 15

D1 asked her to sell away the suit schedule property to him when she refused he bore grudge and trying to interfere into the possession and enjoyment of the plaintiff over the plaint schedule property. Therefore she filed the suit for grant of permanent injunction by restraining the defendants, their men and agents from ever interfering with her peaceful possession and enjoyment over the suit schedule property.

16. Pw2 is the son of Pw1 and Pw3 is an independent witness whose land is situated at a distance of 200 meters to the suit schedule property also corroborated the evidence of Pw1. In support of case of the plaintiff she filed

Ex.A1 to A11. As discussed above, Ex.A1 and A9 are pattadar pass books and

Ex.A2 is duplicate title deed, Ex.A3 is the computer generated adangal issued by mee-seva in her favour. Ex.A4, A5 and A11 are the land revenue receipts for the fasali 1408 to 1412, 1430 to 1422 and 1426 to 1428. Ex.A6 is the counter foil issued by Andhra Bank, Budithi. Ex.A7 is copy of adangal pahani for fasali 1425. Ex.A8 is 1B Namuna dated 10-2-2016 which was obtained subsequent to filing of the suit. Ex.A1 and A2 were issued in the year 2012 and Ex.A3 also relating to the year 2012 i.e., for fasali no.1422 therefore as per the case of the plaintiff since 1996 she is in possession and enjoyment of the suit schedule property. During the course of cross examination she stated she filed Order 1 Rule 10 CPC petition in O.S.8/2004 on the file of Hon’ble Ist

Additional District Judge Court, Srikakulam which was filed for partition. In

that she was impleaded as D4 and filed written statement and mentioned in her written statement that all the properties of their family are the self acquired properties of their father and she is entitled for share in the 16 properties of her father. Ex.B1 is the chief affidavit of the present plaintiff filed in O.S.8/2004 i.e., the relevant portion in the chief affidavit of the present plaintiff filed in O.S.8/2004. It discloses that all the properties of her father are the self acquired properties and during his lifetime he used to say that he will give some lands to her but no properties was given to her and after the demise of her father she requested the present 1st defendant to give her share in the properties of her father but he is avoiding on some pretext or other hence she got issued a legal notice on 21-1-2004 by demanding for partition but no reply was given by D1 in this case. Therefore she raised the dispute before the elders and the plaintiff in O.S.8/2004 and the 1st defendant herein managing to avoid her share of the property and she came to know about the suit proceedings hence he was impleaded as party and during the course of cross examination in the same suit which was marked as Ex.B2 she stated that she was not aware whether her father gave ac.4.20 cents known as Chinni krishnamnaidu batti to her and her two sisters towards their share.

Therefore she shown ignorance about settlement of ac.4.20 cents of land in favour of the plaintiff and D3 and D4 herein by her father.

17. During the course of cross examination she admitted that the plaint schedule property used to call as Chinna Krishnamnaidu batti. But a suggestion put to the present plaintiff in O.S.8/2004 by the plaintiffs therein that her father settled ac.4.20 cents of land in favour of the plaintiff, D3 and

D4. Therefore in O.S.8/2004 itself the plaintiff and other defendants in that suit were well aware that the father of the plaintiff settled ac.4.20 cents of land in favour of the plaintiff and D3 and D4. Here in this suit also during the 17 lifetime of D1 and after that D2 admitting that the plaint schedule property was settled in favour of the plaintiff and D3 and D4. But admittedly no document filed by the defendants to show that the father of the plaintiff, D3 and D4 settled the suit schedule property in favour of D3 and D4 also along with the plaintiff.

18. The cross examination of Dw1 shows that they have given the suit schedule property to the plaintiff but the same is in their possession and they have not filed any proof of document to show that they are in possession and enjoyment of the suit schedule property. And no document filed by D2 to show that suit schedule property bequeathed by his father in favour of D2.

Even though Dw2 stated he is ploughing the plaint schedule property with his tractor every year for raising the paddy crop. During the course of cross examination he stated that he is not possessing any own tractor and he did not mention in his chief examination as he used to plough the plaint schedule property with his tractor on every year and he admitted that D1 is no way connected with the suit schedule property and his chief affidavit was prepared in the house of D2. Therefore it clearly discloses that without having any own tractor and without submitting any document to show that he is the driver of the tractor he wrongly mentioned in his chief affidavit as he used to plough the fields on every year. But somewhat his evidence discloses that D1 is no way connected with the suit schedule property. Coming to the evidence of

Dw3 who is also the family member of D1 to D4 he stated that after the death of his father their family members filed O.S.8/2004 before the Hon’ble I Addl.

District Judge, Srikakulam and they contested in that suit that D1 in the

18 present suit is not giving their share of yield from the property. And he do not know whether the present suit schedule property was not included in the suit schedule in O.S.8/2004 therefore it is not clear whether the present plaint schedule property is shown as one of the schedule in O.S.8/2004 or not. DW4 is the 3rd defendant and DW5 is the D4 and the evidence of Dw4 discloses that her father transferred the suit schedule property to the plaintiff and D3 and D4 but she do not know how he gave that property to them and she cannot say the survey number and boundaries of the suit schedule properties and her parents gave ac.0-10 cents of land beside court compound in

Srikakulam and she constructed a house and residing there and worth of that land is Rs.5 crores at present and her parents did not give even a single cent of land to the plaintiff in Srikakulam and she do not know whether she filed any documents to show that her father gave the suit schedule property to their three sisters by way of settlement deed. DW5 stated that her brother gave instructions to prepare her chief affidavit and she cannot say the survey number and boundaries of the suit schedule property and during the lifetime of her father he gave ac.0-10 cents of land to Dw4 situated in Srikakulam and she do not know what is her contest in suit and did not file any document to show that they are having right and title over the suit schedule property.

Therefore even though the defendants contested, along with plaintiff, D3 and

D4 are also having right, title and possession over the suit schedule property no documentary evidence adduced by the defendants to show that the father of the plaintiff settled the suit schedule property in favour of plaintiff, D3 and

D4. If really the father of the plaintiff settled the properties in favour of the 19 plaintiff, D3 and D4 the names of D3 and D4 might have been mutated in the revenue records along with the plaintiff and at least they know the survey numbers and boundaries but they do not know about its survey number and boundaries. Therefore as the title of D3 and D4 are in dispute they cannot be treated as co-owners of the plaintiff as no documentary proof filed by them to show that they are in possession and enjoyment over the plaint schedule property along with the plaintiff. The plaintiff by adducing oral evidence and by producing Ex.A1 to A11 shows that she is in possession and enjoyment of the suit schedule property and she also received subsidy from the government for crop damage and also obtained loan from the bank on the suit schedule property hence the plaintiff established that she is in possession and enjoyment over the suit schedule property and defendants 1 and 2 also admitted that the plaintiff is also having right and title over the suit schedule property. Therefore “the possession follows the title”, hence the documents submitted by the plaintiff and evidence adduced by her clearly establishes that the plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of the suit. Accordingly issue no.1 is answered.

ISSUE NO.2

19. In view of the discussion in issue no.1 it is clear before this court that the plaintiff is in possession and enjoyment of the suit schedule property and when the defendants 1 and 2 tried to interfere into her peaceful possession and enjoyment of the suit schedule property by violating the exparte temporary injunction orders she also filed a petition for grant of police aid and the same was also allowed by this court by giving police aid and she also 20 gave report to police when D1 and D2 tried to interfere into her peaceful possession and enjoyment. Therefore it clearly shows that the defendants are interfering into the peaceful possession and enjoyment of the plaintiff over the plaint schedule property. If the defendants 3 and 4 are having any right and title over the suit schedule property they have to dispossess the plaintiff under due process of law but the defendants cannot disturb the peaceful possession and enjoyment of the plaintiff overt the plaint schedule property.

Therefore the plaintiff is entitled for grant of permanent injunction as prayed for. Accordingly issue no.2 is answered.

ISSUE NO.3: To what relief?

20. In view of the discussion in issue no.1, 2 and additional issue no.1 the plaintiff is entitled for decree for permanent injunction as prayed for.

21. In the result, the suit is decreed with costs in favour of the plaintiff and against defendants by granting permanent injunction in favour of the plaintiff by restraining the defendants, their men, agents, kith and kith from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property.

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

by me in open court, this the 18th day of April, 2023.

Principal Senior Civil Judge

Srikakulam

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

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For Plaintiff: For Defendants:

PW1: Gorle Lavanyavathi DW1: Suravaram Sivaprasad PW2: Gorle Ramanaidu DW2: Suravaram Joginaidu PW3: Chenchela Ramanayya DW3: Suravaram Jagadeesh Chandraprasad DW4: Majji Meenakshi DW5: Potnuru Vijayaratnam

DOCUMENTS MARKED

For Plaintiff:

Ex.A1: pattadar pass book (duplicate) issued by the revenue authorities. Ex.A2: title deed (duplicate) issued by the revenue authorities. Ex.A3: computer generated adangal issued by mee-seva. Ex.A4: cistu receipts two in number without date for the fasali 1408 to 1412. Ex.A5: cistu receipt issued on 20-5-2013 for the fasalies 1430 to 1422. Ex.A6: counter foil issued by Andhra Bank, Budithi. Ex.A7: copy of adangal pahani. Ex.A8: 1-B Namuna ROR. Ex.A9: pattadar pass book of plaintiff. Ex.A10: Runa upasamana arahatha Ex.A11: land receipt.

For Defendants:

Ex.B1: certified copy of relevant portion in the chief affidavit of Gorle Lavanyavathi in O.S.8/2004 on the file of the Hon’ble Addl. District Judge, Srikakulam. Ex.B2: relevant portion of cross examination of DW11 in O.S.8/2004 on the file of the Hon’ble I Addl. District & Sessions Court, Srikakulam.

Principal Senior Civil Judge

Srikakulam

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IN THE COURT OF THE ASSISTANT SESSIONS JUDGE, RAJAM.

PRESENT: SMT. K.NAGAMANI

PRINCIPAL ASST. SESSIONS JUDGE,

SRIKAKULAM,

(FAC) Assistant Sessions Judge, Rajam.

Wednesday, this the 31 st day of March, 2021.

SESSIONS CASE No.08/2020

(PRC.No.2/2019 on the file of Judicial Magistrate of 1st Class, Ponduru, committed by Sri Shaik Reyaz, connected with Cr.No.12/2019 of Ponduru Police Station)

Name of the Complainant:State, represented by the Sub-Inspector of Police, Ponduru Police Station.

Name of the Accused:Ippili Rajasekhar, son of Joginaidu, 26 years, Kapu by caste, Lolugu village, Ponduru Mandal. Offences with which charged: For the offence punishable under Section 307 of IPC. Date & Place of offence: 16.01.2019 at about 21.30 hours at Lolugu junction Date of Apprehension of : 19.01.2019 accused Accused in Jail or bail: Accused was released on bail Date of commencement of : 01.12.2020 Trial Date of Close of Trial: 24.03.2021 Date of sentence or Order: 31.03.2021 Explanation for the delayVide separate docket extract enclosed.

a) In the committal court:

b) in the Trial Court: This case was received as made over by the

Hon’ble Principal District & Sessions Judge,

Srikakulam to this Court. After appearance of the Accused, charge has been framed under Section 307 of IPC against accused, read-over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

On 20.11.2020, the Trial schedule was fixed, PWs.1 to 5 are examined and Exs.P.1 to P.7 and Material Objects 1 to 4 marked and the prosecution evidence is closed. On 03.03.2021, the Accused was examined under Section 313 of Cr.P.C., by explaining the incriminating material appearing against him and he denied the same and reported no defence evidence on his behalf. On 17.03.2021, arguments heard both sides and on 31.03.2021 Judgment pronounced (vide separate Judgment).

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Sentence or Order: In the result, accused is found guilty for the offence under Section 307 IPC hence he is convicted under Section 235(2) of Cr.P.C. for the above said offence and accused is sentenced to undergo simple imprisonment for a period of three years and pay fine of Rs.1,000/- in default simple imprisonment for a period of one month for the offence punishable under Section 307 of IPC. The remand period of accused 58 days i.e., from 19.01.2019 to 18.03.2019 shall be set off under Section 428 of Cr.P.C. M.Os. 1 to 4 shall be destroyed after appeal time is over.

Sd/- K.Nagamani,

Principal Assistant Sessions Judge,

Srikakulam, FAC of Assistant Sessions Judge, Rajam.

N.B:- Fine amount imposed against accused paid and the same is

remitted to Government account.

Copies submitted to:-

1. the Hon’ble Registrar (JUDICIAL), High Court of Andhra Pradesh, Nelapadu, Amaravathi through the Hon’ble Principal District and

Sessions Judge, Srikakulam.

2. the Hon’ble Principal District and Sessions Judge, Srikakulam.

Copies to:-

3. the Superintendent of Police, Srikakulam.

4. the Judicial Magistrate of I Class, Ponduru.

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IN THE COURT OF THE ASSISTANT SESSIONS JUDGE, RAJAM.

PRESENT: SMT. K.NAGAMANI

PRINCIPAL ASST. SESSIONS JUDGE,

SRIKAKULAM,

(FAC) Assistant Sessions Judge, Rajam.

Wednesday, this the 31 st day of March, 2021.

SESSIONS CASE No.08/2020

Between: State : Sub-Inspector of Police Ponduru P.S. (Crime No.12/2019) …Complainant.

And

Ippili Rajasekhar, S/o.Joginaidu, 26 years, kapu by caste, Lolugu village, Ponduru Mandal. …Accused.

This Case coming for final hearing on 24.03.2021in the presence of Addl. Public Prosecutor for the complainant State and of Sri K.Ramanamurthy advocate for Accused and having stood over to this day for consideration, this Court delivered the following:

JUDGMENT

1. The State represented by its Sub-Inspector of Police, Ponduru

Police Station, filed a charge sheet against the accused in Cr.No.12/2019 for the offence punishable under Section 307 of IPC.

2. The case of the prosecution in nutshell is that:

LW.1 is the defacto complainant and he is doing civil contract works at Visakhapatnam and came to his village to celebrate Sankranthi

Festival with his family members and both the complainant and accused are having ill feelings and stirring both of them since four years back due to previous grudges the accused attacked the complainant with a knife under his throat with an intention to kill him due to previous grudges, therefore, the accused inflicted serious injuries stabbing injury just below the throat of the injured, the injured got admitted in GEMS hospital, Ragolu for treatment and basing on the statement recorded in the hospital a case in Cr.No.12/2019 4 under section 307 IPC was registered and investigated into the case, during the course of investigation LW.13, SI of Police examined as many as 7 witnesses including the defacto complainant and recorded their statements and visited the scene of offence and seized blood stained clothes of the injured and sent material objects to RFSL Visakhapatnam for chemical analysis and he arrested the accused on 19.01.2019 and sent him to the court for judicial remand and recorded his confessional statement after seizure of the crime weapon and the medical officer who issued wound certificate to

LW.1 opined that he sustained grievous injuries, after receipt of FSL report and after completion of investigation, he filed charge sheet. Hence the charge.

3. After filing of the charge sheet before the learned Judicial

Magistrate of I Class, Ponduru, the learned Magistrate after verifying the

charge sheet against the accused, has taken on file under Section 307 of IPC and numbered as PRC.No.02/2019.

4. On appearance of the accused, the learned Judicial Magistrate of I Class, Ponduru furnished copies of documents to him as required under

Section 207 Cr.P.C.

5. The learned Judicial Magistrate of I Class, Ponduru on perusal of the documents, found prima-facie case against the accused under Section 307 of IPC. Which is exclusively triable by the Sessions Court, and as such the learned Judicial Magistrate of I Class, Ponduru committed the case to the

Court of Sessions Division, Srikakulam, under Section 209 Cr.P.C. The

Hon’ble District and Sessions Judge, Srikakulam on receipt of the record and

on satisfying about the prima-facie case, numbered the case as Sessions Case 5

No.02/2019 under Section 307 of IPC and made over the case to this Court to try that case according to law.

6. On appearance of the accused before this Court, the accused was examined U/s.228 Cr.P.C. A charge under Sections 307 of IPC against

Accused have been framed against the accused, read over and explained to the accused in Telugu, for which he pleaded not guilty and claimed to be tried.

7. Schedule was fixed. In order to prove the guilt of the accused, on behalf of the prosecution, the prosecution examined PWs.1 to 5 out of 14 witnesses and marked Ex.P.1 to Ex.P.7 and material objects 01 to 4.

8. After closure of the prosecution evidence, the accused was examined U/s.313 Cr.P.C. explaining the incriminating material appeared against him, from the evidence of prosecution witnesses, for which he denied and reported no defence evidence.

9. Heard the arguments of the learned Addl. Public Prosecutor and the learned Counsel for the accused.

10. Now the point for consideration is : - “Whether the prosecution proved the guilt of the Accused for the offence punishable under Section 307 of IPC beyond all reasonable doubt?

11. POINT:- The case of the prosecution is that PW.1 is the defacto complainant and he is doing civil contract works at Visakhapatnam and came to his village to celebrate Sankranthi Festival with his family members and both the complainant and accused are having ill feelings and stirring both of them since four years back due to previous grudges the accused attacked the complainant with a knife under his throat with an intention to kill him due to 6 previous grudges, therefore, the accused inflicted serious injuries stabbing injury just below the throat of the injured, the injured got admitted in GEMS hospital, Ragolu for treatment and basing on the statement recorded in the hospital a case in Cr.No.12/2019 under section 307 IPC and investigated into the case, during the course of investigation PW.5, SI of Police examined as many as 7 witnesses including the defacto complainant and recorded their statements and visited the scene of offence and seized blood stained clothes of the injured and sent material objects to RFSL Visakhapatnam for chemical analysis and he arrested the accused on 19.01.2019 and sent him to the court for judicial remand and recorded his confessional statement after seizure of the crime weapon and the medical officer who issued wound certificate to

PW.1 opined that he sustained grievious injuries, after receipt of FSL report and after completion of investigation, he filed charge sheet.

12. For that the prosecution shall establish that the accused with an intention to kill PW.1 attacked him with knife and caused grievous injuries on the throat of PW.1.

13. In this case as discussed above, the prosecution cited 1 to 14 witnesses but only examined PWs.1 to 5 and the remaining witnesses were given up by the learned A.P.P.

14. PW.1 is the injured cum defacto complainant in this case, he stated that he is doing civil contract works and he know the accused and on 16.01.2019 at 9.00 p.m., LW.3/Lolugu Venkataramana and the accused were talking to each other accused stated “Veseyyali Chakrini” i.e., PW.1 the same was heard by PW.2 and informed the same to PW.1 immediately PW.1 and 2 went to accused and asked LW.3/Lolugu Venkataramana about the same, 7 then accused and LW.3/Lolugu Venkataramana said that the accused was in drunken state and asked them to go and while PWs.1 and 2 were going to

PW.2’s house, the accused came in front of PW.1 and stabbed him with knife on his throat, knife was marked as M.O.1, therefore PW.1 was shifted to hospital, then his statement was recorded by Police which was marked as

Ex.P1.

15. PW.2 stated that he know PW.1 and he do not know the accused and he never saw him but while he was at Lolugu junction, at 9.00 p.m., on 16.01.2019, LW.3/Lolugu Venkatramana and the accused were talking and he heard that the accused said to LW.3 that “PW.1 had extras and so Veseyyali” he heard the same and informed the same to PW.1, then himself and PW.1 went to LW.3 and accused and asked LW.3 regarding accused saying “Veseyyali”, then LW.3 said that the accused was in drunken state of mind and to leave it, later while PW.1 and 2 going towards the house of PW.2, and reached Anjaneya swamy temple near Lolugu center, the accused came in front of PW.1 and stabbed him with a knife on the lower side of the neck of PW.1 and ran away, he tried to catch the accused but he ran away, immediately PW.2 took PW.1 in his car to the GEMS hospital, Ragolu.

PW.1 was treated in the hospital.

16. PW.3 is the mediator in this case he stated that he worked as

V.R.O. of Lolugu village from 2014 to 2019 and on 15.01.2019 Ponduru

Police constable asked him to act as mediator and he along with VRA

Budumuru Eswararao i.e., LW.9 went to Lolugu junction near to

Anjaneyaswamy temple, and police seized black coat, white shirt with violet colour stripes, one white banian which were marked as M.Os.2 to 4 and 8 police drafted scene observation report dated 17.01.2019 at the scene of offence and even though at the 1st instance he stated he acted as mediator on 15.01.2019, he again stated that the materials were seized on 17.01.2019 and he further stated that on 19.01.2019 at 9.00 a.m., he along with police, V.R.A.

Budumuru Eswararao, LW.9 went to the house of accused, there police found one knife without “pidi” and police seized the same and arrested the accused under a report dated 19.01.2019 which was marked as Ex.P3.

17.PW.4 medical officer stated that on 16.01.2019 at 11.00 p.m., he examined PW.1 and found lacerated wound 2 x 2 cms surround the neck region which was bleeding, therefore he is of the opinion that the above injury is grievious in nature due to blood vessels injury around the wound.

18. PW.5 is the Investigating Officer in this case he stated that on 17.01.2019 he received medical intimation from GEMS hospital, Ragolu, immediately he went to GEMS hospital, Ragolu and recorded the statement of PW.1, and returned to the police station and registered the statement as a case in Cr.No.12/2019 under section 307 of IPC and issued FIR, i.e., Ex.P5 and sent the same to the court and on the same day he proceeded to the scene of offence situated at Lolugu junction and recorded the statements of PWs.2,

LW.3/Lolugu Venkataramana, LW.4/Sunkari Srinu, LW.5/SunkariSurodu,

LW.6/Lolugu Venkataramana, and LW.7/Gorle Tararao and he secured PW.3

LW.9/Budumuru Eswarrao on the same day and in their presence he observed the scene and prepared rough sketch of the scene which was marked as Ex.P6 and at the scene of offence he seized M.Os.2 to 4 and on 19.01.2019 in the presence of mediators i.e., PW.3 and LW.9/Budumuru Eswararao he arrested the accused and recorded his confessional statement and seized one knife 9 from the possession of the accused without ‘Pidi’ which was marked as

M.O.1, later he produced the accused to the court for remand and received wound certificate and sent MOs.1 to 4 to RFSL, Visakhapatnam, later he was transferred to Palakonda and he handed over the record to his successor i.e.,

LW.14/Md.Yaseen, after receipt of RFSL report and after completion of investigation, LW.14 filed charge sheet.

19. The learned Additional Public Prosecutor argued that the evidence of PW.1 and 2 is corroborating with each other as their evidence clearly shows that on 16.01.2019 at 9.30 p.m., while they were returning to

PW.2’s house accused bore grudge against PW.1 due to previous disputes between them and attacked PW.1 with a knife and stabbed on his throat thereby caused grievous injuries, hence the accused is liable for conviction for the offence under section 307 of IPC.

20. On the other hand the learned defence counsel filed written arguments and also orally argued that the accused has no connection to alleged offence in anywhere and no motive was established any where, according to the story of the prosecution the ingredients of the alleged section did not attract, it clearly shows that due to political influence PW.1 intentionally implicated the accused to harass him, so all the story was foisted against the accused implicate him in the offence due to political rivalry in the village with the instigation of local politicians the accused was implicated in the above crime with an intention to harass him physically, mentally and financially and there is no corroboration between the prosecution witnesses and all the prosecution witnesses including official witnesses utterly failed to prove the case and contradicted in all material aspects and the story of the 10 defacto complainant is totally false, therefore the prosecution failed to prove the case beyond all reasonable doubt, so the benefit of doubt goes to the accused.

21. As can be seen from the evidence available before this court according to the prosecution case while the accused and LW.3/Lolugu

Venkataramana were talking with each other about PW.1, PW.2 heard while accused saying to LW.3/Venkataramana that PW.1 doing extras and he intend to eliminate him, therefore he immediately informed the same to PW.1 and

PW.1 and 2 questioned the accused, for that LW.3/Venkatrramana stated accused was in drunken state and leave him but on the same day while PW.1 and PW.2 going to the house of PW.2, the accused suddenly came and stabbed with a knife on the throat of PW.1 and caused grievous injuries to

PW.1, thereby the accused have intention and knowledge and prepared by coming with knife inorder to eliminate PW.1, but PW.1 was rescued by PW.2 by admitting him in the GEMS hospital, Ragolu, therefore the accused is liable for conviction.

22. In this case PWs.1 to 5 were examined and as per the written arguments of the learned defence counsel due to political rivalry in the village PW.1 intentionally implicated the accused to harass him. During the course of cross examination PW.1 stated that one Sriramulunaidu belongs to TDP party and acted as ZPTC at that time, and he belongs to the said

Sriramulunaidu group, and one Lolugu Kantharao belongs to congress party, and the accused is the follower of Lolugu Kantharao, therefore as per the evidence of PW.1 both the accused and PW.1 belongs to two different political parties and PW.1 further admitted that previously four or five years 11 back disputes arose between his group and the group of the accused and criminal cases filed against each other in the police station after that there were no disputes between PW.1 and accused and during the course of cross- examination a suggestion put to PW.1 that he belongs to the ruling political party hence he obtained false certificate and got foisted false case against accused due to political rivalry but the same was denied by PW1.

23. The prosecution did not try to examine LW.3/Lolugu Venkataramana, with whom, the accused stated he intend to eliminate PW.1, but it is not the case of the prosecution that when accused attacked PW.1, the said

Venkataramana was also present, but LW.3/Venkataramana is crucial witness in this case but for the reasons best known to the prosecution, the said Lolugu

Venkataramana was not examined before this court.

24. As far as the reliability and trustworthy of the evidence of PW.1 and 2 is concerned their evidence is corroborating with each other as per the evidence of PW.1 on 16.01.2019 at 9.00 p.m. PW.2 heard while accused stating to LW.3/Venkataramana as he intend to eliminate PW.1 as he is doing extras, PW.2 immediately informed the same to PW.1, then PW.1 and PW.2 questioned LW.3/Venkataramana but LW.3 stated that the accused was in drunken state by that time and leave him. There are no contradictions in between the evidence of PW.1 and 2 in respect of incident occurred on 16.01.2019 at 9.00 p.m., and their evidence is corroborated with each other but even though PW.2 do not know who is the accused he heard while accused stated to LW.3 that he intend to eliminate PW.1, therefore, the intention on the part of the accused by disclosing before

LW.3/Venkataramana that he intends to kill PW.1 was established through 12 the evidence of PW2 and there are no previous disputes or enmity between

PW.2 and accused to depose false hood against the accused may be PW.2 is known person to PW.1 only on that ground the entire evidence of PW.2 cannot be brushed aside and the evidence of PW.1 and 2 clearly shows that on 16.01.2019 at 9.30 p.m., while both PW.1 and 2 were coming to the house of PW.2 the accused suddenly came and stabbed on the throat of PW.1, therefore, it clearly discloses that the accused with an intention and knowledge and by preparing with knife he came towards PW.1 and stabbed on his throat if any person stabs with a knife on the throat of another person some times it leads to the death of that person. Therefore the accused is having knowledge that the injury caused on the neck of PW.1 with knife will definitely cause the death of the PW.1. Therefore, PW.1 and 2 evidence clearly shows that on 16.01.2019 at 9.30 p.m. accused stabbed on the throat of PW.1 with an intention to kill PW.1.

25. The learned defence counsel argued that there is change of scene of offence, therefore, the evidence of PW.1 and 2 cannot be considered, but the evidence of PW.1 shows that while PW.1 and 2 were going to the house of PW.2 the accused came in front of him and stabbed with knife and his cross examination discloses that it will take 5 to 10 minutes to go to

PW.2's house from main junction and after asked LW.3/Venkataramana they left the said place and went to other street, i.e., main street and they did not return to the Anjaneya swamy temple and they came to the main street, and

Anjaneyaswamy temple is situated in the main junction which runs from

Ponduru to Chilakapalem road adjacent to Buridikancharam road.

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26. PW.2 stated that while himself and PW.1 going towards his house and reached Anjaneyaswamy temple near Lolugu centre, the accused came in front of PW.1 and stabbed PW.1 with knife at Anjaneyaswamy temple at 9.30 p.m., and the Anjaneyaswamy temple is situated at the entrance of Lolugu village on right side but Anjaneyaswamy temple is not situated towards the road leads to Buridikancharam road and there are shops and houses situated near Anjaneyaswamy temple and the scene of offence show in Ex.P6 is it is infront of Anjaneyaswamy temple. Therefore the evidence of PW.2 clearly shows that when they reached near

Anjaneyaswamy temple accused attacked PW.1 therefore, there is no ambiguity in respect of the scene of offence.

27. As far as evidence of independent witnesses is concerned it is the evidence of PW.2 that except PW.1 and 2 there are no other persons present at the time of incident, but some persons were far away to them and he further stated that there is vegetable market, mechanic shop and barber shop at the scene of offence but on 16.01.2019 as it was kanuma festival day shops were closed and there were no persons present on the road. As 16.01.2019 is during the festival time might be the shops were closed on that day. But no suggestion was put to PW.2 that he was not present along with

PW.1 on the date of incident. Therefore, PW.2 was very much present with

PW.1 at the time of incident.

28. As far as motive is concerned the motive to commit the offence is, admittedly there are previous disputes between accused and PW.1 therefore might be accused having grudge against PW.1 therefore, he thought to eliminate PW.1 as PW.1 stated previously there were cases against each 14 other about 4 or 5 years back therefore motive behind commission of offence is nothing but previous disputes between PW.1 and accused the learned defence counsel argued that as there are previous disputes between PW1 and the accused he was falsely implicated in this case and a rowdy sheet was opened against PW1 as per the evidence of PW5 hence he might have been attacked by some others but admittedly accused having previous disputes with PW1 and case and counter cases also filed against them therefore motive behind commission of offence by accused due to previous disputes cannot be ignored. Therefore when once the evidence of PW1 is supporting with the evidence of PW2 about the alleged offence committed by the accused the motive behind the offence is nothing but previous disputes between the accused and PW1 only.

29. As far as recovery of weapon basing on the statement of accused is concerned PW.3 stated that on 19.01.2019 at 9.-00 a.m., police arrested the accused and seized M.O.1 under Ex.P3 mediators report and nothing was elicited from the cross examination of PW.3 in respect of the contents of Ex.P3 except putting a suggestion that he signed on Ex.P2 and

Ex.P3 in the police station but that suggestion was denied by PW3 therefore his presence along with PW.5 at the time of arrest and recovery of M.O.1 basing on the confessional statement of accused is not doubtful. Might be

PW.3 stated that on 15.01.2019 he was called by Ponduru Police instead of 17.01.2019 but the date of offence was on 16.01.2019, therefore it cannot be expected that on 15.01.2019 itself police got knowledge that the accused is going to commit an offence on 16.01.2019 therefore might be PW.3 wrongly 15 stated the date as 15.01.2019 instead of 17.01.2019 in respect of observation of the scene of offence and seizure of M.Os. 2 to 4 by Police from the possession of the brother of PW.1 who handed over the same at the time of scene observation by the police is corroborating between the evidence of

PW.3 and 5. Hence minor discrepancy in the evidence of PW.3 about the date cannot be a ground to disbelieve his evidence.

30. It is an admitted fact that on 16.01.2019 PW.1 admitted in

GEMS hospital, Ragolu with lacerated wound 2 x 2 cms surrounded the neck region which was bleeding as per the evidence of PW4 and on the next day PW1 gave his statement to PW.5 by stating that he was stabbed by accused on his throat. Therefore, even though there are no independent witnesses except the evidence of PW.1 and PW.2 when the evidence of injured is corroborated with the evidence of eye witness i.e., PW.2 and there are previous disputes PW.1 and accused the entire evidence of PW.1 and 2 cannot be brushed aside, therefore through the evidence of PW.1 and 2 it was established by the prosecution that the accused attacked PW.1 on 16.01.2019 in order to eliminate him and brought knife and stabbed on the throat of

PW.1, with an intention to kill him and prior to that he also stated to

LW.3/Venkataramana that he intend to eliminate PW.1, therefore the prosecution established the guilt of the accused u/s.307 of IPC beyond all reasonable doubt.

16

31. In the above circumstances, the prosecution proved the guilt of the accused u/s.307 of IPC beyond all reasonable doubt hence he is liable for conviction.

In the result accused is found guilty for the offence under

Section 307 IPC hence he is convicted under Section 235(2) of Cr.P.C. for the above said offence.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in open Court, this the 31st day of March, 2021.

Sd/- K.Nagamani,

Principal Assistant Sessions Judge,

Srikakulam,

FAC of Assistant Sessions Judge,

Rajam.

When I questioned the accused about the quantum of sentence he stated that:

Ee madyane naaku pelli ayindi. Oka thommidi nelala paapa undi.

Maa naanna garu chanipoyaru. Maa amma, naa bhaarya, naa kuthuru naa meede aadharapadi yunnaaru. Nenu cooli pani chesukoni vaarini poshistunnanu. Anduvalana nannu kanikarinchi vadileyyamani korukuntunnaanu.

Recorded the plea of accused but this is not a case where PO

Act applies but considering the family background of the accused as he is the sole bread winner of his family it is a fit case to take lenient view against the accused and reduce maximum punishment.

In the above circumstances accused is sentenced to undergo SI for a period of three years and pay fine of Rs.1,000/- IDSI for a period of one month for the offence punishable under Section 307 of IPC. The remand period of accused 58 days i.e., from 19.01.2019 to 18.03.2019 shall be set off 17 under Section 428 of Cr.P.C. M.Os.1 to 4 shall be destroyed after appeal time is over.

Sd/- K.Nagamani,

Principal Assistant Sessions Judge,

Srikakulam,

FAC of Assistant Sessions Judge,

Rajam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For prosecution: For defence:

P.W.1: Sunkari Sankararao -None- P.W.2: Labhana Rambabu P.W.3: Lutta Trinadharao, V.R.O. P.W.4: Dr. M.Balamurali Krishna, Medical Officer P.W.5: S.Balaraju, S.I. of Police

EXHIBITS MARKED

For prosecution:

Ex.P.1/dt.17.01.2019: Statement of P.W.1. Ex.P.2/dt.17.01.2019: Scene observation report. Ex.P.3/dt.19.01.2019: Confessional statement of accused. Ex.P.4/ --- : Wound certificate. Ex.P.5/dt.17.01.2019: First Information Report. Ex.P.6/dt.17.01.2019: Rough sketch. Ex.P.7/dt.25.04.2019: R.F.S.L. report.

For defence: -NIL-

MATERIAL OBJECTS

M.O.1: Knife M.O.2: Black coat (jacket) M.O.3: White shirt with violet colour stripes M.O.4: White banian

Sd/- K.Nagamani,

Principal Assistant Sessions Judge,

Srikakulam, FAC of Assistant Sessions Judge, Rajam.

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IN THE COURT OF THE PRL SENIOR CIVIL JUDGE SRIKAKULAM.

PRESENT:- Smt.K.Nagamani,

Principal Senior Civil Judge, Srikakulam

Tuesday, the 11th day of April, 2023

ORIGINAL SUIT No.167/2018

Between:

Simhadri Rama Devi, W/o Ramanamurthy @ Ramanayya, Hindu, aged about 53 years, Household duties, resident of Door No:7-22, S.Matchalasam, Srikurmam Panchayathi, Gara Mandalam, Srikakulam District. …Plaintiff And:

1) Vysyaraju Chakradhararaju, S/o late Appalaraju, Hindu, aged about 55 years, Business, resident of Door No: 6-148, Peddapeta veedhi, Narasannapeta Town and Mandalam, Srikakulam District.

2) Vysyaraju Anandam, W/o late Appalaraju, Hindu, aged about 76 years, Household duties, resident of Door No: 6-148, Peddapeta veedhi, Narasannapeta Town and Mandalam, Srikakulam District.

…Defendants

This suit is coming on 10-4-2023 for final hearing before me in the presence of Sri C. Ramamohan, Advocate for the plaintiff and of Smt. D. Vijayalaxmi, Advocate for D1 and D2 and the matter having been stood over till today for consideration, this court delivered the following:

JUDGMENT

01. This is a suit filed by the plaintiff against the defendants, for partition of the plaint schedule properties into three equal shares and allot 1/3rd share to the plaintiff by converting the joint possession into a separate possession and for mesne profits from the date of the suit and for costs of the suit.

02. The material averments of the plaint in brief are as follows:-

The plaintiff and 1st defendant are the children of 2nd defendant through the Vysyaraju Appalaraju, the plaintiff and defendants all are 2 constituted Hindu undivided joint family and the joint family possess the plaint schedule properties and the Vysyaraju Appalaraju and 2nd defendant are father and mother of the plaintiff having two children who are plaintiff and defendant herein and during the life time of the father of the plaintiff he was doing petty business and out of the income derived from his petty business he purchased the plaint schedule properties under registered sale deed dated 22- 09-1956 from Anam Ankamma and another as his self acquired property, at the time of purchase of the plaint schedule properties, there is a thatched house existing in both the item No. 1 and 2 properties, since the date of purchase the father of the plaintiff has been in peaceful possession and enjoyment over the same without any interruption and what so ever and mutated his name in all the revenue records, subsequently the father of the plaintiff demolished the said thatched house and construed R.C.C. slabbed building in the said plaint schedule Item No.1 property by leaving vacant site of the plaint schedule Item No:2 property and residing in the said plaint schedule Item No.1 house some part and the remaining part of house gave to some others on rental basis, and also gave the plaint schedule Item No.2 vacant site to others for doing business for their commercial purpose as vacant site on rental basis, out of the rental income he devolved his business and earn money and during the life time of the father of the plaintiff he performed the marriage of the plaintiff in the year 1982 and also at the time of marriage he did not give anything to the plaintiff and also he promised to the plaintiff that he will give share in the plaint schedule property since the date of marriage the plaintiff is residing at her matrimonial house along with 3 her husband even though she is residing at her house she visited the house of the defendants frequently, the said Vysyaraju Appalaraju died intestate in the month of March, 1999 leaving behind his legal representatives who are plaintiff, and defendants herein and after death of the said Vysyaraju

Appalaraju the 1st defendant mutated his name for the said properties in all the revenue records and enjoying the same with his peaceful possession and enjoyment over the same, even though the 1st defendant mutated his name in all revenue records the plaintiff is having right over the same so also yearly he gave something to the plaintiff till January, 2017, subsequently the 1st defendant did not give anything to the plaintiff then the plaintiff demanded the defendants for partition of the plaint schedule properties but the defendants did not partitioned the same and in the month of April, 2017 the plaintiff raised dispute before the elders for partition of the plaint schedule properties and the elders called the defendants and held panchayathi and the defendants agreed for partition of the plaint schedule property in the presence of elders but, till today they did not partition the same and in the month of August, 2017 the plaintiff issued register legal notice through his counsel to the 1st defendant for partition of the plaint schedule properties and the same was received by the 1st defendant and he gave reply notice to the plaintiff counsel on 14-09-2017 with all false allegations, but, they did not partition the plaint schedule properties, subsequently the 1st defendant constructed a R.C.C. Slabbed Ground with two storied building in the plaint schedule Item No.2 vacant site in the month of November, 2018 with the joint family nucleus earnings and he is residing in some part of the portion and also 4 gave remaining portion of the property on rental basis to others for the purpose of running shops and enjoying the same and also he gave the plaint schedule item No.1 property to others on rental basis, even though the 1st defendant constructed the Ground + two storied building in the plaint schedule Item No.2 property, the plaintiff is having joint right over the same as the plaint schedule Item No.2 property constructed by the 1st defendant with the joint family nucleus earnings, hence this suit is filed for partition of plaint schedule properties into 3 equal shares and allot one such share to the plaintiff by converting the joint possession into separate possession by metes and bounds and also for mesne profits from the date of suit and for costs of the suit.

03. D1 filed his written statement which was adopted by D2 by denying the averments of the plaint and contested that the plaint schedule property is not belongs to ancestral property and the document filed by the plaintiff is not related to the plaint schedule property, the plaint schedule property is the grama kantam and the same was occupied by the defendant and since 36 years this defendant is in peaceful possession and enjoyment over the plaint schedule property, the parents of the plaintiff and defendants not having any property as alleged in the plaint and one Vysyaraju chittiraju son of

Ratnalaraju having five sons and one daughter viz., Seetharaju, Surayyaraju

Appalaraju, Jagannadharaju, Satyanarayanaraju and M.Ramanamma w/o

Appalaswamy. The father of the defendant is the third son of Chittiraju by name Appalaraju @ Ratnalaraju and the said Appalaraju also having three sons and one daughter out of which two sons were died without marriage and 5 now the plaintiff and defendant are alive according to the document filed by the plaintiff the executant by name is shown as that Vysyaraju Appalaraju @

Ratnalaraju son of late surayyaraju who is the great grandfather of the defendant, now the father of the defendant name is Vysyaraju Appalaraju alias Ratnalaraju son of Chittiraju, therefore, both the persons are not one and the same and the father of the defendant not having any property, therefore, the plaintiff herein not entitled any share in the plaint schedule property as the plaint schedule property is not an ancestral property or the self acquired property of father of the plaintiff and defendant and after acquiring the plaint schedule property with his self earnings, he constructed house in the plaint schedule property by obtaining loans from third parties and now the value of the plaint schedule property is higher in the locality due to that cause with an eye sore the plaintiff herein filed this false suit against the defendant for partition which is not maintainable under law and the suit is not maintainable under law; and there is no cause of action to file this suit.

The defendant reserves his right to file additional written statement if any.

The Court Fee paid by the plaintiff is not correct, the boundaries and survey numbers mentioned in the plaint schedule are not correct and the suit is not maintainable under law and therefore prays to dismiss the suit.

4. Basing on the above pleadings the following issued are settled for trial:-

1.Whether the plaint schedule property is the self acquired property of the father of plaintiff?

2.Whether the plaint schedule is incorrect?

3.Whether CF paid is incorrect?

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4.Whether the plaintiff is entitled for partition of the plaint schedule property into three equal shares and allot one such share along with possession to the plaintiff as prayed for?

5.Whether the plaintiff is entitled for mesne profits?

6.To what relief?

5. In order to substantiate the case of the plaintiff the plaintiff herself examined as Pw1 and got examined Pw2 and 3 and Ex.A1 and A2 got marked. On behalf of the defendants D1 examined as Dw1 and got examined

Dws 2 to 4 and Ex.B1 to B6 got marked.

6. Heard both sides.

7. The learned counsel for the plaintiff argued that the suit schedule property is the self acquired property of the father of the plaintiff and the first defendant is the brother and D2 is the mother of the plaintiff and the father of the plaintiff was died intestate therefore being the daughter of Vysyaraju

Appalaraju the plaintiff is entitled for share in the suit schedule property therefore the suit has to be decreed in favour of the plaintiff by partitioning the suit schedule property into 3 equal shares and allot one such share to the plaintiff and also grant mesne profits in favour of the plaintiff.

8. On the other hand the ld. Counsel for the defendants argued that the suit schedule property is not the self acquired property of the father of the plaintiff and D1 and D1 occupied the suit schedule property which is gramakantam at about 36 years back and constructed house in that suit schedule property but by hearing the words of enemies of D1 the plaintiff filed this suit even though she know that the suit schedule property is not the property of her father and the document which was marked as Ex.A1 clearly 7 show that the father of the plaintiff is not the purchaser of that property therefore the suit is not maintainable for partition.

ISSUE NO.1:

9. As can be seen from the evidence available before this court it is an admitted fact that the plaintiff is the sister of D1 and the daughter of D2. And one Vysyaraju Appalaraju is the father of plaintiff and D1 and husband of D2.

Therefore the relationship between the parties is an admitted one in this case therefore the plaintiff is the sister of D1 and D2 is the mother of plaintiff and

D1 and one Vysyaraju Appalaraju is the father of plaintiff and D1 and husband of D2 to that effect there is no dispute.

10. It is the case of the plaintiff that her father purchased the plaint schedule properties under the original of Ex.A1 on 22-9-1956 from Anam

Ankamma and another therefore it is his self acquired property. But it is the contest of the defendants that in Ex.A1 it was mentioned that one Vysyaraju

Ratnalaraju @ Appalaraju son of Surayya Raju purchased the property mentioned in Ex.A1. But the father’s name of Vysyaraju Apparaju i.e., father of plaintiff and D1 is Vysyraju Chittiraju but not Surayya Raju and the said

Vysyraju Chittiraju having 5 sons and one daughter by name Seetaraju,

Surayyaraju, Appalaraju, Jagannadharaju, Satyanarayanaraju and one daughter by name M.Ramanamma. The father of D1 is the 3rd son of

Chittiraju by name Appalaraju @ Ratnalaraju and the said Appalaraju having 3 sons and one daughter, out of which 2 sons were died without marriage and now the plaintiff and defendants were alive. According to the defendants the 8 executant name shown as Vysyraju Appalaraju @ Ratnalaraju son of late

Surayyaraju who is the great grand father of the defendant. Therefore both the persons are not one and the same and the father of the defendant-1 not having any property therefore the plaintiff is not entitled for any share in the plaint schedule property as it is not the ancestral property or the self acquired property of the father of the plaintiff and defendant.

11. To prove that the plaint schedule property is the self acquired property of the father of the plaintiff the plaintiff got examined Pw2 and Pw3 and got marked Ex.A1. Pw2 and Pw3 mentioned in their chief examination affidavits that during the life time of the father of the plaintiff he performed the marriage of the plaintiff in the year 1982 and he purchased the suit schedule property with the income derived from his petty business and constructed

RCC slabbed building in the plaint schedule properties and resided in item no.1 of the plaint schedule property and gave item no.2 of the plaint schedule property on rental basis to others for doing business. Pw2 stated he gone through the documents relating to the suit schedule property when they went for marriage alliance of the plaintiff. But he do not know the details of the document i.e., from whom the Vysyaraju Appalaraju purchased the property and the said Vysyaraju Appalaraju used to sell khaini and other materials on roads and he know personally about the construction of slabbed house by

Vysyraju Appalaraju. Pw3 stated he never saw the documents relating to the properties of Vysyaraju Appalaraju and he do not know the father’s name of

Vysyaraju Appalaraju and did not go through the documents to show that

Vysyraju Appalaraju constructed RCC building in the plaint schedule properties 9 or the plan of the building. But the said Appalaraju stated before him to the plaintiff and D1 to take back portion to the plaintiff but to that effect no document was executed. And he did not go to the plaint schedule property as an elder for demand of partition on behalf of the plaintiff. Therefore their evidence discloses that they know Vysyaraju Appalaraju who is the father of plaintiff and D1 and according to the evidence of Pw2 and 3 the said

Vysyaraju Appalaraju only constructed RCC slabbed house in item no.1 and 2 of plaint schedule property and kept item no.2 of plaint schedule property as vacant and gave it to others on rental basis.

12. Pw1 stated that her father used to sell eatable items like chips etc., except that there is no other income source, business or avocation to her father. And she denied the suggestion that in the legal notice issued by her she did not mention the name of her father as Chittiraju @ Surayyaraju but mentioned as the name of Ratnalaraju only. And she stated her grand father’s name is Chittiraju @ Surayyaraju. Therefore according to the plaintiff Ex.A1 was executed in favour of her father only. On perusing the recitals of Ex.A1 it was mentioned that one Ankamma wife of Appanna and her daughter

Appalamma executed a registered Sale deed in favour of one Vysyaraju

Ratnalaraju @ Appalaraju s/o. late Surayyaraju. Neither of the parties produced any documents to show that the father’s name of Vysyaraju

Appalaraju is not Surayyaraju and it is Chittiraju. In the reply notice issued by the 1st defendant to the counsel for the plaintiff it was mentioned that he is the son of one Vysyraju late Ratnalaraju therefore it is clear from the evidence available before this court that the father’s name of plaintiff and D1 10 is nothing but Vysyraju Appalaraju @ Ratnalaraju. To that effect there is no dispute as even in the reply notice which was marked as Ex.A2 also the father’s name of plaintiff and D1 is clearly mentioned as Vysyraju Appalaraju @ Ratnalaraju. Therefore the other facts to be considered are whether the father’s name of said Vysyaraju Appalaraju was wrongly mentioned in Ex.A1 or not.

13. For that the defendant filed Ex.B1 to B6 in which Ex.B1 is the approved plan issued by the Grampanchayat, Narasannapeta. As per the evidence of

Dw1 to 3, D1 occupied the suit schedule property which is gramakantam at about 30 years back and paying taxes relating to the plaint schedule property and constructed slabbed house in the suit schedule property. Therefore it is his exclusive property. Ex.B1 shows that it is the approved plan issued for construction of 2nd floor over the existing ground and 1st floor at Peddapeta street road, north side of d.no.6-142, but the suit schedule door no. is 6-148.

And as per the evidence of Dw2 to 4 Dw1 constructed the slabbed house in the plaint schedule property at about 5 years back that means might be in the year 2017 according to the evidence of Dws 2 to 4, D1 constructed a slabbed house in the suit schedule property. Ex.B1 was obtained in the year 2017. It clearly shows that before obtaining Ex.B1 only there is existing ground and 1st floor in the suit schedule property. If that is the case, prior to obtaining Ex.B1 only there is a ground and 1st floor in the suit schedule. It is not the evidence of Dw1 to 4 that prior to 2017, the 1st defendant constructed RCC slabbed house. Therefore it strengthens the case of the plaintiff that subsequent to the purchase of the plaint schedule property the father of D1 and plaintiff 11 constructed a RCC building in the suit schedule item no.1 of the property. On that might be D1 obtained approved plan for construction of 2nd floor on the existing ground and 1st floor. The Defendant no.1 did not choose to examine any of the panchayat officers or the officers from the concerned department to show that the suit schedule property is originally gramakantam, but he occupied it at about 30 years back. Therefore except adducing the evidence of Dw2 to 4 he did not submit any other oral or documentary evidence to support his case that the suit schedule property is originally gramakantam and he occupied the same at about 30 years back. Mere mentioning the name of

D1 in the panchayat records as if he is paying taxes to the panchayat doesn’t confer right and title over the suit schedule property in favour of D1. He must adduce the cogent evidence to show that the suit schedule property is gramakantam and he occupied the same at about 30 years back. But no such evidence is available before this court. Instead of that the plaintiff by examining Pw2 and 3 and by filing Ex.A1 proved that her father purchased the plaint schedule property in the year 1956. Might be the father name of

Vysyaraju Appalaraju was wrongly mentioned in Ex.A1. Even if it considers that is the great grand father’s name of plaintiff and D1 the nature of the property will be the ancestral property. But that is also not admitting by D1 in this case. Therefore Ex.A1 document clearly shows that the father of plaintiff and D1 purchased the suit schedule property in the year 1956. Therefore the plaint schedule property is the self acquired property of the father of plaintiff and D1. Accordingly issue no.1 is answered.

ISSUE NO.2:

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14. According to the defendants the plaint schedule is not correct. But what is the correct schedule of the plaint for that no schedule was filed along with the written statement of D1. In Ex.A1 it was mentioned that door no.74 and 78 allotted to the suit schedule property and east to west is 12 feet 6 inches and north to south 32 feet and after that east to west 11 feet 9” and north to south 30 feet. And 3rd item is east to west 9 feet, north to south 25 feet and 4th item i.e., vacant site is east to west 5 feet and north to south 25 feet.

Therefore four items were mentioned in Ex.A1 with specific boundaries for the entire suit schedule property. In the plaint schedule entire property were shown as two items. 1st one is north to south 50 feet. Situated in sy.no.219/1B in old d.no.74 and 78 with new d.no.6-148 and east to west 7 feet total 350 sq.feet or 38.88 sq.yds and item no.2 was shown as north to south 62 feet and east to west 12.25 feet with the same door number and same survey numbers. No correlation certificate or any correct schedule was filed by the D1 to show that the suit schedule is in correct. Might be the previous door numbers were changed but it is not the contest of the defendants that the property mentioned in Ex.A1 is not the suit schedule property. Therefore the plaint schedule is correct as it is mentioned with specific boundaries and the boundaries of the plaint schedule are also tallying with the boundaries mentioned in Ex.A1. Therefore the plaint schedule is correct. Accordingly issue no.2 is answered.

ISSUE NO.3:

15. According to the plaintiff her father died intestate. Subsequent to the death of her father she is in joint possession and enjoyment of the plaint 13 schedule property along with D1 and D2. Therefore the CF paid by her is correct. But according to the defendants the Defendant no.1 occupied the suit schedule property at about 30 years back. Therefore the plaintiff is not in joint possession and enjoyment of the plaint schedule property. Therefore the

CF paid is incorrect. In issue no.1 this court decided that the suit schedule property is the self acquired property of Vysyraju Appalaraju who is the father of plaintiff and D1. When it is the self acquired property of Vysyaraju

Appalaraju and the said Vysyraju Appalaraju was died intestate, even though the plaintiff is not residing in the suit schedule property it shall be presumed that being the joint family member she is also in joint possession and enjoyment of the plaint schedule property along with D1 and D2. Therefore the CF paid by her u/sec.34(2) of APCF and SV Act, 1956 is correct.

Accordingly issue no.3 is answered.

ISSUE NO.4

16. As per the discussion in issueno.1 to 3 it is clear before the court that the suit schedule property is the self acquired property of the father of the plaintiff and D1 and it is not the contest of the defendants that the said

Vysraju Appalaraju died by executing any document that means by leaving any testamentary succession. When he died intestate, being the daughter of

Vysyraju Appalaraju the plaintiff is also entitled for partition of the plaint schedule property along with D1 and D2. Therefore the plaintiff is entitled for partition of the plaint schedule property into 3 equal shares and allot one such share to her along with separate possession as prayed for. Accordingly issue no.4 is answered.

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ISSUE NO.5

17. As per the evidence available before this court, during the lifetime of the father of the plaintiff he used to collect rents from the tenants by leasing out item no.2 of the plaint schedule property to 3rd parties that means income is deriving from item no.2 of the plaint schedule property. When income is deriving from item no.2 of the plaint schedule property the plaintiff being one of the sharer of the same she is entitled for mesne profits on the suit schedule property. Therefore the plaintiff is entitled for the mesne profits from the date of decree as she did not mention how much amount was deriving from the suit schedule property and for how much amount she is entitled the same was not clearly mentioned. Therefore she is entitled for mesne profits from the date of passing of the decree till she is put in her separate possession of the suit schedule property. Accordingly issue no.5 is answered.

ISSUE NO.6 To what relief?

18. In the above circumstances, as the defendant -1 failed to prove that the suit schedule property is gramakantam and plaintiff proved that the plaint schedule property is the self acquired property of her father and being the daughter of Vysyraju Appalaraju she is entitled for share in the suit schedule property she is entitled for decree in her favour.

19. In the result, the suit is preliminarily decreed with costs in favour of the plaintiff and against the defendants 1 and 2 by partitioning the item no.1 and 2 suit schedule properties into three equal shares and allot one such share to 15 the plaintiff and one such share each to the defendants 1 and 2 by metes and bounds with separate possession and the plaintiff is also entitled for mesne profits for the suit schedule properties from the date of passing of the decree till she put her into possession of her share and the plaintiff has to file a separate application under Or-20 R-18 and R-12 CPC for division of the properties and for ascertaining mesne profits respectively after expiry of appeal time. If she fails the office is hereby directed to put up note for final decree proceedings after expiry of appeal time from the date of passing of the decree.

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

pronounced by me in open court, this the 11th day of April, 2023.

Principal Senior Civil Judge,

Srikakulam.

APPENDIX OF EVIDENCE

Witnesses Examined

For Plaintiff: PW1: Simhadri Ramadevi PW2: Koyya Suryanarayana PW3: Ponnana Chandrarao

For Defendants: DW1: Vysyaraju Chakradhararaju DW2: Lotti Venkateswararao DW3: Tatapudi Jagadeeswararao DW4: Muddada Venkataramanarao

Documents Marked

For Plaintiff:

Ex.A1: Certified copy of the registered sale deed dated 29-9-1956 executed by Anam Ankamma and another in favour of Vysyaraju Appalaraju 16

Ex.A2: copy of registered reply notice dated 14-9-2017 issued by D1.

For Defendants:

Ex.B1: Approved plan issued by the Gram Panchayat, Narasannapeta dt.26-5-2017. Ex.B2: Original Tax demand notices (two in no.). Ex.B3: original house tax receipts for the year 1999-2000 under assessment no.784. Ex.B4: original house tax receipts for the year 2002-03 under assessment no.784. Ex.B5: original house tax receipts for the year 2003-04 under assessment no.784. Ex.B6: original current bill issued by APEPDCL.

Principal Senior Civil Judge,

Srikakulam.

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IN THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE, SRIKAKULAM

Present: - Smt. K. Nagamani

Principal Senior Civil Judge, Srikakulam

Thursday, this the 6th day of April, 2023

O.S.No.151/2018

Between:

Pondari Raghu son of late Ramulu, aged 44 years, Hindu, residing at near fish market, Kasibugga municipal limits, Kasibugga Srikakulam district.

…Plaintiff. And:

Vadada Ramana son of Dalayya,aged 48 years, Hindu, residing at Chapuram village, Patrunivalasa post, Srikakulam mandal and district. …Defendant.

This suit is coming before me on 3-4-2023 for final hearing in the presence of Sri T.Sivaprasadarao, Advocate for the Plaintiff and of Sri U. Nagamanikumar and Sri Ch.Srinivasarao, Advocates for the Defendant and this matter having been stood over for consideration till this day and upon hearing and on perusal of entire case material on record, this Court delivered the following:

JUDGMENT

This suit is filed by the Plaintiff against the defendant by directing the defendant to execute the registered sale deed in favour of the plaintiff in respect of suit schedule property and receiving the sale consideration of

Rs.13,00,000/- with in time fixed by the court on a duly stamped paper supplied by the plaintiff in the manner and form required under law and in case the defendant fails to execute the registered sale deed as directed, the court may itself execute the sale deed on behalf of the defendant in respect

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of the suit schedule property at the costs of the plaintiff and to put the plaintiff in possession of the suit schedule property after evicting the defendant there from (or) directing the defendant to pay the advance amount of Rs.5,00,000/- with subsequent interest @24% p.a. from the date of agreement of sale dt.30-1-2015 and also directing the defendant to pay an amount of Rs.5,00,000/-, till realization and for costs of the suit.

2. The brief averments of the plaint are that the defendant is the owner of the suit schedule property an extent of Ac 0.10 cents, the defendant is agreed to sell the suit schedule property at the rate of Rs.1,30,000/- for an extent of 0.10 cents and the plaintiff agreed to purchase the said property from the defendant at the said rate, the defendant agreed to register the schedule property infavour of the plaintiff or to his order on demand within four months from the date of sale agreement, after taking measurements and accordingly the defendant received an amount of Rs.5,00,000/- as advance amount from the plaintiff and executed sale agreement in favour of the plaintiff on 30.1.2015 and subsequently the defendant received an amount of Rs.5,00,000/- on 6.01.2015 and endorsed the same on the back side of the sale agreement and the defendant received total Rs.10,00,000/- as advance and subsequently the plaintiff approached to the defendant but the defendant evade to receive balance sale consideration from the plaintiff and postponing the same from time to time and requested the plaintiff to measure the suit schedule property through mandal surveyor and the defendant requested the plaintiff and the defendant ready to pay challan to the MRO for localization of the suit schedule property after that immediately

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register the same to the plaintiff, then the plaintiff waited all these days and approached the defendant number of times and also raised disputes through elders, the defendant asking time and subsequently the plaintiff approached the defendant then the defendant postponing the same on some pretext or other while acknowledging the liability and dragon the proceedings and register the same to the plaintiff and the plaintiff learnt that by suppressing the facts the defendant trying to alienate the suit schedule property to third parties with an intention to cheat the plaintiff and also cause wrongful loss to the plaintiff and the plaintiff always ready and willing to purchase the plaint schedule property and the plaintiff is ready with balance sale consideration but the defendant intentionally avoid to register the sale deed as agreed only to cause wrongful loss to the plaintiff and wrongful gain to the defendant, the plaintiff got issued legal notice with true and correct facts to the defendant on 23.1.2018 and the defendant received the legal notice and the defendant neither paid the amount nor choose to give any reply but the defendant postponing the completion of the transaction, inspite of registered sale deed in favour of the plaintiff the defendant has been making efforts to sell the plaint schedule property to 3rd parties, hence the suit.

3. The defendant filed his written statement by denying the material averments of the plaint and contended that the defendant entered in to an agreement to sale with the plaintiff on 30.01.2015 agreeing to sell the suit schedule property for an amount of Rs.1,30,000/- per Cent for an extent of 10 cents as mentioned in the suit schedule property and received

Rs.5,00,000/- towords advance and agreed to register the same within 4

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months after receiving the balance consideration, after the expiry of the sale agreement period the defendant approached the plaintiff and stated that he is ready and willing to perform his part of the contract by receiving the balance amount of Rs.8,00,000/- but the painful was evading to do the same on some pretext or other and the plaintiff never demanded the defendant to execute the sale deed as he is ready and willing to perform his part of contract by paying the balance amount of Rs.8,00,000/- and on 23.01.2018 surprisingly the plaintiff got issued a registered legal notice to the Defendant with false and frivolous allegations and the defendant received the same and after verifying the same the plaintiff stated in the said notice that on 06.07.2015 the plaintiff paid Rs.5,00,000/- towards further advance to the defendant which was totally false and then the defendant got issued a reply to the Plaintiff's counsel on 27.01.2018 through his advocate requesting him to furnish a copy of the sale agreement to enable the defendant to give detailed reply but the plaintiff did not furnish the copy of the said agreement, after receiving the legal notice the defendant filed Caveat Petition No 18/2018 on the file of this Court and the copy of the said petition send to the plaintiff by way of registered post, but the same was returned stating that addressee not claimed, the plaintiff filled the present suit on 29.05.2018 along with an I.A. and the notice of the suit was received by the defendant and after verifying the plaint and documents the defendant noticed that the plaintiff created an endorsement dated 06.07.2015 on the back side of the sale agreement dated 30.01.2015 and the said endorsement dated 06.07.2015 shows that the plaintiff paid 5,00,000/- towards further advance

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to the defendant in the presence of the witness and further on the said endorsement dated 06.07.2015 the plaintiff forged the signature of the defendant with the help of his men and created the same and the signature of the defendant on the said endorsement dated 06.07.2015 and sale agreement is not one and the same, the suit agreement is not registered one and it is not admissible in evidence and the suit document is not duly stamped and same may be impounded for necessary stamp duty and with penalty as per the provisions of Indian Stamp Act. The plaintiff with evil intention kept quiet until the limitation and filed this suit with false allegations and pleading against the defendant and the plaintiff did not file the reply notice dated 27.01.2018 of the defendant along with the plaint and the plaintiff did not mention the about the reply notice dated 27.01.2018 issued by the defendant in the particulars of the plaint and in the para IV i.e., the cause of action para a prayer mentioned in the para VI are not clear and not maintainable under law and the dates mentioned in the plaint are not correct, the defendant has no necessity to sell the property to 3rd parties as mentioned in the plaint but the defendant is ready to pay the advance amount of Rs.5,00,000/- with interest @ 24 % as prayed by the plaintiff in this plaint and ready to deposit the same in to the court to show his genuineness, the defendant reserves his right to file further or better written statement if necessary during the trail of the suit and there are no valued and justified grounds for the Plaintiff to pray this Court for a decree and judgment as prayed in this suit and the plaintiff did not come to this Court with clean hands and suppressed all the real facts. There are no merits and

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bonafides in the suit and the Defendant prays that the Court may be pleased to dismiss the suit with costs in the interest of the justice.

4. Basing on the pleadings, the following issues are settled for trial:

1. Whether endorsement on suit agreement dt.6-7-2015 is rank forged one and not binding on the defendant?

2. Whether the plaintiff paid further advance of Rs.5,00,000/- to the defendant on 6-7-2015?

3. Whether the plaintiff is ready and willing to perform his part of contract?

4. Whether the plaintiff is entitled for decree of specific performance of contract against the defendant under the suit agreement dt.30-1- 2015 as prayed for?

5. Whether the plaintiff is entitled for alternative relief of return of advance amount of Rs.5,00,000/- with subsequent interest @24% p.a. from the date of sale agreement dt.30-1-2015 and Rs.5,00,000/- from 6.-7-2015 till realization of the amount as prayed for?

6. To what relief?

5. In order to substantiate the case of the plaintiff, Pws1 to 3 are examined and Ex.A1 to A4 got marked. On behalf of the defendant, the defendant himself examined as Dw1 and Ex.B1 to B4 got marked.

6. Heard both sides.

7. The ld. Counsel for the plaintiff argued that the defendant entered into

Ex.A1 sale agreement with the plaintiff for 10 cents of land i.e., plaint schedule property for Rs.1,30,000/- per cent and on the date of Ex.A1 cash of Rs.5 lakhs were given towards advance and subsequently also on 6-7- 2015 another 5 lakhs given towards part of the balance sale consideration,

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therefore the defendant totally received an amount of Rs.10 lakhs from the plaintiff but failed to execute the registered sale deed in favour of the plaintiff therefore the suit is filed for specific performance of contract by directing the defendant to execute the registered Sale deed in favour of the plaintiff after receiving the balance sale consideration.

8. Whereas the contest of the defendant is Ex.A1 sale agreement was executed in between the plaintiff and defendant on 30-1-2015 by agreeing to sell the suit schedule property for an amount of Rs.1,30,000/- per cent and defendant received cash of Rs.5 lakhs on the date of Ex.A1, but he did not receive another 5 lakhs and after the expiry of the sale agreement period the defendant approached the plaintiff and stated that he is ready and willing to perform his part of contract by receiving balance amount of Rs.8 lakhs but the plaintiff evading to do the same on some pretext or the other and plaintiff never demanded the defendant to execute the sale deed and the defendant did not receive the amount shown in Ex.A2 and Ex.A2 is a rank forged one and the plaintiff with an evil intention kept quite until the limitation and filed the suit with false allegations and created Ex.A2 and defendant is ready to deposit the advance amount of Rs.5 lakhs before the court therefore the suit is liable to be dismissed.

9. From the pleading and arguments of both the parties it is an admitted fact that the suit schedule property is in an extent of ac0-10 cents which is the exclusive property of the defendant and defendant offered to sell the suit schedule property for an amount of Rs.1,30,000/- per cent and plaintiff

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agreed to purchase the same therefore both of them entered into Ex.A1 sale agreement on 30-1-2015 and on the date of Ex.A1 sale agreement the defendant received an amount of Rs.5 lakhs towards advance sale consideration to that effect there is no dispute between the parties. Pw2 and 3 also stated that they have acted as attestors for Ex.A1 sale agreement.

Therefore as discussed above as Ex.A1 agreement of sale is not in dispute and evidence of Pw2 and 3 is also corroborating with the evidence of Pw1 hence it is clear before the court that the suit schedule property belongs to the defendant and the defendant offered to sell away the same and plaintiff agreed for the rate i.e., Rs.1,30,000/- per cent and paid an amount of Rs.5 lakhs on 30-1-2015 towards advance sale consideration.

10. In respect of Ex.A2 transaction is concerned the defendant is denying about receiving of Rs.5 lakhs on 6-7-2015. He denied his signature on EX.A2 and contested that it is a forged document. But it seems that Pw2 and 3 only acted as attestors for Ex.A2 endorsement also. Their evidence is that Pw2 signed on endorsement dt.6-7-2015 and Pw3 also acted as 2nd attestor of

Ex.A2 endorsement. PW1 to 3 evidence is that Ex.A2 endorsement is on 6-7- 2015 and the defendant received another 5 lakhs towards part of the balance sale consideration on 6-7-2015 therefore totally he received Rs.10 lakhs towards part of the sale consideration out of 13 lakhs. In this case even though the defendant denied his signature on Ex.A2 the defendant did not choose to file any petition for sending Ex.A2 for expert opinion for comparison of the signature available on Ex.A2 with his admitted signatures and he also did not adduce any other oral or documentary evidence to show

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that Ex.A2 does not contain his signature. During the course of evidence of the defendant the defendant got marked Ex.B1 to B4. Ex.B1 is the office copy of reply notice dt.21-7-2018 got issued by defendant to the counsel for the plaintiff. Ex.B2 is the postal acknowledgement. Ex.B3 is office copy of caveat petition. Ex.B4 is returned postal cover.

11. The evidence of the defendant discloses that after receiving the legal notice from the plaintiff the defendant filed caveat petition on the file of this court and the copy of the said petition sent to the plaintiff by way of registered post but the same was returned stating addressee not claimed.

Therefore the evidence of Dw1 shows that after the original of Ex.A3 was received by the defendant in respect of the plaint schedule property the defendant filed caveat petition before this court. On perusing the contents of caveat petition in para no.3(1) it was mentioned there was an agreement between the present plaintiff and defendant on 31-1-2015 for the present suit schedule property i.e., 10 cents out of ac.1.95 cents @1,30,000/- per cent and on the date of agreement of sale the respondent i.e. the present plaintiff paid Rs.5 lakhs towards advance on the same day and after expiry of sale agreement period i.e., after four months on 6-11-2016 the respondent i.e., the plaintiff herein approached the petitioner i.e., the defendant and requested 2 months time and again paid Rs.5 lakhs towards further advance with a condition that if the present plaintiff fails to fulfill the terms and conditions of the sale agreement within two months the sale agreement stands cancelled and the petitioner i.e., the defendant shall repay the above said advance of Rs.10 lakhs without any interest. There is a difference

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between the date from Ex.A2 to the date mentioned in the caveat petition.

Ex.A2 is dated 6-7-2015 but where as in the caveat petition the defendant mentioned on 6-11-2016 he received another 5 lakhs from the plaintiff herein and totally he received advance sale consideration of Rs.10 lakhs from the present plaintiff. Therefore the defendant admitted in the caveat petition that he received total Rs.10 lakhs from the plaintiff. When there is an admission on the part of the defendant about receipt of Rs.10 lakhs from the plaintiff he cannot take another plea that he received only Rs.5 lakhs but not 10 lakhs from the plaintiff and the evidence of Pw2 and 3 is also supporting with the evidence of the plaintiff that an amount of Rs.10 lakhs taken by the defendant towards part of the sale consideration i.e. 5 lakhs on the date of

Ex.A1 and 5 lakhs subsequent to Ex.A1.

12. Might be the signature of defendant is not similar from Ex.A1 and A2 which was admitted by Pw1 but when once the defendant himself admitted that he received total advance amount of Rs.10 lakhs from the plaintiff it shall be considered that Ex.A2 is not created and forged one. Might be the defendant put the signature differently from Ex.A1 to Ex.A2. Only on that ground the entire evidence of Pw1 to 3 cannot be brushed aside. When once the evidence of Pw1 to 3 is corroborating with each other and there is also an admission on the part of the defendant during the course of cross examination that Ex.A2 contains his signature.

13. If really another Rs.5 lakhs were taken on 6-11-2016 but not on 6-7- 2015 there must be another endorsement with dated 6-11-2016 but there is

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no such endorsement on Ex.A1 therefore it shall be presumed that on 6-7- 2015 only the defendant received another Rs.5 lakhs from the plaintiff for that Pw2 and 3 acted as attestors. Therefore as there is an admission on the part of defendant in Ex.B3 about receipt of cash of Rs.5 lakhs along with the advance amount of Rs.5 lakhs on the date of execution of Ex.A1 it is clear

before the court that the plaintiff totally paid an amount of Rs.10 lakhs out of

13 lakhs to the defendant.

14. The defendant taken several pleas in the written statement and his evidence which are contra to one another. He taken a plea in the written statement that he did not receive another 5 lakhs on 6-7-2015 but admitted

Ex.A1 between the plaintiff and defendant and also admitted his signature on

Ex.A1. When it comes to the cross examination of Pw1 a suggestion put to

Pw1 that Ex.A1 and A2 are rank forged one hence the defendant is not liable to execute the registered sale deed in favour of the plaintiff and during the course of cross examination of Pw2 and 3 also a suggestion was put to witnesses that Ex.A1 and A2 were created with ante date and those are forged one but the defendant admitting his signature on Ex.A1 might be he denied the signature on Ex.A2 but totally he denied both Ex.A1 and A2 transactions during the course of cross examination of Pw1 to 3. When it comes to the cross examination of Dw1 i.e., the defendant he stated that he do not know the plaintiff and he never tried to sell away the suit schedule property to any one and he did not enter into agreement with anyone for sale of suit schedule property and he received an amount of Rs.5 lakhs from one RK for selling the suit schedule property @1,30,000/- and the said RK

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only filed the suit against him and admitted that Ex.A2 contains his signature.

Therefore these all clearly shows that even though he taken the plea in the written statement and chief examination affidavit as Ex.A2 is rank forged one, his cross examination is very clear that Ex.A2 contains his signature.

Therefore the evidence available before this court is very clear that there is an agreement between plaintiff and defendant i.e., Ex.A1 and subsequent to

Ex.A1 as admitted by the defendant he also received another 5 lakhs and signed on Ex.A2 which was corroborating with the evidence of Pw2 and 3.

Therefore the defendant failed to prove his defence that the endorsement on the suit agreement dated 6-7-2015 is rank forged one. Whereas the plaintiff proved that endorsement on Ex.A1 i.e. Ex.A2 dated 6-7-2015 is true, valid and binding on the defendant and the defendant received cash of Rs.5 lakhs from the plaintiff on 6-7-2015 accordingly issue 1 and 2 are answered.

ISSUE NO.3

15. The case of the plaintiff is at the time of agreement of sale he gave an amount of Rs.5 lakhs to the defendant and subsequently on 6-7-2015 he paid another amount of Rs.5 lakhs and he is due an amount of Rs.3 lakhs only to the defendant and he is always ready and willing to perform his part of contract but the defendant did not come forward to perform his part of contract and dragging on the matter and trying to alienate the suit schedule property to 3rd parties therefore after waiting some period he got issued legal notice to the defendant on 23-1-2018 but the defendant gave reply notice with false averments and he is ready and willing to perform his part of

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contract by paying balance sale consideration and obtain the registered sale deed from the defendant but the defendant did not come forward therefore the suit has to be decreed in his favour.

16. Whereas the contest of the defendant is even though he is ready to execute the registered sale deed in favour of the plaintiff the plaintiff did not come forward with the remaining consideration of Rs.8 lakhs. Therefore he did not execute the registered sale deed in favour of the plaintiff. But as per the discussion in issue no.1 and 2 it is clear from the evidence of the defendant that he received total amount of Rs.10 lakhs towards part of the balance sale consideration and plaintiff is due only an amount of Rs.3 lakhs towards balance sale consideration and till the plaintiff got issued legal notice to the defendant, the defendant did not issue any legal notice to the plaintiff by showing his readiness and willingness to execute the registered sale deed in favour of the plaintiff. Therefore the readiness and willingness on the part of the plaintiff by way of his attitude by arranging an amount of Rs.5 lakhs on 6-7-2015 and issuing legal notice to the defendant by calling upon him to come and receive the balance sale consideration and execute the registered sale deed clearly discloses that the plaintiff is always ready and willing to perform his part of contract but the defendant did not turn up to execute the registered sale deed in favour of the plaintiff. Accordingly issue no.3 is answered.

ISSUE NO.4

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17. In view of the discussions in issue no.1 to 3 the plaintiff is always ready and willing to perform his part of contract but even after receiving the amount of Rs.10 lakhs out of 13 lakhs the defendant did not turn up to come and register the regular registered sale in favour of the plaintiff. Therefore the plaintiff is entitled for the decree of specific performance of contract against the defendant as per the terms of the sale agreement dated 30-1- 2015 as prayed for. Accordingly issue no.4 is answered.

ISSUE NO.5

18. In view of the discussions in issue no.1 to 4 as the plaintiff is entitled for decree of specific performance of contract against the defendant there is no question of alternative relief of return of advance amount of Rs.10 lakhs as prayed for. Accordingly issue no.5 is answered.

ISSUE NO.6

19. In view of the discussions in issue no.1 to 5 as the plaintiff is ready and willing to perform his part of contract and already paid an amount of

Rs.10 lakhs to the defendant the plaintiff is entitled for decree of specific performance of contract against the defendant as per the terms of the agreement dt.30-1-2015. Therefore the suit has to be decreed in favour of the plaintiff.

20. In the result, the suit is decreed with costs in favour of the plaintiff and against the defendant, by directing the plaintiff to deposit the balance sale consideration of Rs.3 lakhs before the court within one month from the date

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of the decree and the defendant is directed to receive the said balance sale consideration of Rs.3 lakhs and execute the regular registered sale deed as per the terms of sale agreement dt.30-1-2015 in respect of the suit schedule property in favour of the plaintiff within 3 months from the date of decree. If the defendant fails to execute regular registered sale deed in favour of the plaintiff, the plaintiff is at liberty to obtain the same under due process of law after expiry of three months period.

Dictated to the stenographer, transcribed by him, corrected and pronounced

by me in open Court, on this the 6th day of April, 2023.

Principal Senior Civil Judge

Srikakulam

Appendix of Evidence

Witnesses Examined

For Plaintiff: For Defendant:

PW.1: Pondari Raghu DW1: Vadada Ramana PW2: Patrudu Ramakrishna PW3: Bevara Aappalanaidu

Documents Marked

For Plaintiff: Ex.A1:original agreement of sale dated 30-1-2015. Ex.A2: Endorsement dated 6-7-2015. Ex.A3: Office copy of legal notice, dt.23-1-2018. Ex.A4: Postal acknowledgment.

For Defendants: Ex.B1: Office copy of reply notice, dt.27-1-2018 Ex.B2: Postal acknowledgment. Ex.B3: Office copy of caveat petition. Ex.B4: Return postal cover.

Principal Senior Civil Judge

Srikakulam

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1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT RAJAM

Present:- Smt.K.Nagamani

Principal Senior Civil Judge, Srikakulam

(FAC) Senior Civil Judge, Rajam.

Wednesday, this the 7th day of April, 2021.

APPEAL SUIT NO. 01/2019

Between :-

Kondadadi Thavudu, S/o.late Daodu, aged 41 years, Hindu, Dobi, Residing at Rajayyapeta village of Rajam Mandal, Srikakulam District. …APPELLANT.

And

1. Kondadadi Krishna, S/o.late Dalodu, aged 43 years, Hindu, Dobi and Labour, residing at Rajayyapeta village of Rajam Mandal, Srikakulam District.

2. Bondada Chinnappamma, W/o.Appayya, aged 49 years, Hindu, Household, residing at Ponugutivalasa village, Santhakaviti Mandal, Srikakulam District.

3. Kothapalli Suramma @ Bodamma, W/o.Ramulu, aged 44 years, Hindu, household, residing at Rajayyapeta village, Rajam Mandal, Srikakulam District.

4. Komarapuri Parvathi, W/o.Chinnodu, aged 37 years, Hindu, rest –do-

5. Gedda Raminaidu, S/o.Ramaswamy, aged 49 years, Hindu, Dobi and labour, residing at Chittiveedhi, Kancharam village of Rajam Mandal, Srikakulam District. …RESPONDENTS.

ON APPEAL FROM THE DECREE AND JUDGMENT DATED 30.12.2015

PASSED BY THE JUNIOR CIVIL JUDGE, RAJAM IN OS.152/2007.

Between :-

Kondadadi Thavudu, S/o.late Dalodu, aged 41 years, Hindu, Dobi, Residing at Rajayyapeta village of Rajam Mandal, Srikakulam District. …Plaintiff

And

1. Kondadadi Krishna, S/o.late Dalodu, aged 43 years, Hindu, Dobi and Labour, residing at Rajayyapeta village of Rajam Mandal, Srikakulam District.

2. Bondada Chinnappamma, W/o.Appayya, aged 49 years, Hindu, Household, residing at Ponugutivalasa village, Santhakaviti Mandal, Srikakulam District.

3. Kothapalli Suramma @ Bodamma, W/o.Ramulu, aged 44 years, Hindu, household, residing at Rajayyapeta village, Rajam Mandal, Srikakulam District.

4. Komarapuri Parvathi, W/o.Chinnodu, aged 37 years, Hindu, rest –do-

5. Gedda Raminaidu, S/o.Ramaswamy, aged 49 years, Hindu, Dobi and labour, residing at Chittiveedhi, Kancharam village of Rajam Mandal, Srikakulam District. …Defendants.

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This appeal coming on 31.03.2021 before me for final hearing in the presence of Sri P.Srinivas, Advocate for the Appellant, and Sri J.Appalanaidu , Advocate for Respondents, and having stood over for consideration till this day, this Court made the following:-

JUDGMENT

01. The appellant is unsuccessful plaintiff in O.S.152/2007 on the file of Junior Civil Judge court, Rajam and the respondents are the defendants 1 to 5 in the same suit.

02. For the sake of convenience both parties in this appeal can be referred as they were arrayed in the suit.

03. The plaintiff in O.S.152/2007 on the file of Senior Civil Judge,

Rajam filed the suit against the defendants 1 to 5 by praying court to pass a decree in favour of the plaintiff and against the defendants for partition of plaint A and B schedule lands into 5 equal shares and allot one such share to the plaintiff and put the plaintiff in possession of such share for mesne profits from the date of the suit and for costs of the suit and for such other relief or reliefs which deems fit and proper under the circumstances of the case with the following averments that the defendant No.1 is the brother of the plaintiff and D2 to D4 are the sisters of the plaintiff and they are children of late Daledu alias Dalayya, the plaintiff’s father died about 5 years back and all the plaint schedule properties are the ancestral property of the plaintiff’s father and D1 to D4 are joint family members and they are in joint possession and enjoyment of the plaint schedule lands as the plaintiff and the defendants are enjoying the joint family properties which are ancestral property and they are in joint legal possession and enjoyment of the plaintiff and defendants as such the plaint schedule properties are treated as joint family properties of the plaintiff and defendants and the plaintiff has got 1/5th undivided share in the plaint schedule land and he raised dispute through the elders for partition of the plaint schedule property as the defendants have been making attempts to alienate the plaint schedule land to third parties, the defendants did not heed the advise

3

of the elders and they did not come forward for partition of the plaint schedule land into five equal shares and allot one such share to the plaintiff and subsequent profits from the date of filing of the suit.

04).D1 to D4 filed written statement by admitting their relationship with the plaintiff and also admitting that the plaint schedule properties are the ancestral properties expect item No.1 of the plaint B schedule property and denied the other averments of the plaint and their contest is the plaintiff filed the suit with ulterior motive for getting and nothing in the plaint schedule properties, the plaintiff having acquainted with every fact of the alienations and mortgages of the plaint schedule properties by

Kodadadi china Dalayya, the father of the plaintiff and defendant 15 or 20 years back, but filed the suit for all the plaint schedule properties, except the 1st item of B schedule the other items were not in possession and enjoyment as those were sold, the father of the plaintiff and the defendants sold away item No.1 of plaint A schedule to one Laggu Chinnappadu by way of registered sale deed about 20 years back, item Nos.2, 3 and 4 of plaint A schedule were mortgaged 15 years back to Kodadadi Chinnappadu and

Kodadadi Guruvulu by the father of the plaintiff and defendants, item No.5 in plaint A schedule also sold to Raghumandala Chinnappadu about 20 years back by the father of the plaintiff in respect of dry lands also in B schedule, the item Nos.2 and 3 were sold to Eagala Appalanaidu by the father of the plaintiff and defendants inrepect of item No.1 in B schedule property, originally it is belongs to Kodadadi Peda Dalivadu who is the maternal grandfather of one Kottapalli Ramulu, the mother of Kottapalli

Ramulu by name Bodemma is only the daughter of Kodadadi Peda

Dalivadu, subsequent to the death of Peda Dalivadu, his daughter

Bodemma succeeded and possessed as of right inrespect of item No.1 of B schedule property, the Government also recognized his lawful possession and enjoyment as ownership inrespect of the 1st item of B schedule, issued

4

pattadar pass book and title deed after proper enquiry conducted under

ROR Act and incorporating his name as absolute owner in revenue records of Rajeyyapeta, therefore, the plaintiff having known every fact in respect of plaint schedule land filed this suit and acquainted fully that all the plaint schedule lands are not the joint family properties and not in possession and enjoyment of the defendants, so the plaintiff is not entitled to get any share in the plaint schedule properties and cannot seek any partition in the plaint schedule properties and the suit has no cause of action and no bonafide one and fictitious so in filing of the suit the plaintiff intends to involve the poor defendants for unnecessary expenditure in the court litigation, so the defendants are entitled for exemplary costs against the plaintiff.

05). In this case D5 was set exparte after the plaint was amended by impleading D5. D1 to D4 also not filed any additional written statement.

06).Basing upon the pleadings of both the parties, the trial court framed the following issues.

ISSUES 1). Whether the plaintiff is in joint possession of the plaint schedule property? 2). Whether the court fee paid is correct? 3). Whether the plaintiff is entitled for partition? 4). Whether the plaintiff is entitled for mesne profits? 5). To what relief?

07).During the course of trial on behalf of the plaintiff, the plaintiff himself examined as PW.1 and got examined one Komarapuri

Mangamma as PW.2 and Exs. A1 to A6 got marked. On behalf of the defendants the defendants did not choose to cross examine PWs.1 and 2 and did not choose to adduce any oral or documentary evidence.

08).Basing on the material available on record, the trial curt dismissed the suit vide its Judgment dated 30.12.2015 aggrieved against

5

the said decree and Judgment the plaintiff in the suit filed the present appeal.

09).I have gone through the evidence adduced by the plaintiff in the trial court and the decree and Judgment dated 30.12.2015 passed by the trial court by dismissing the suit and the grounds of appeal.

10). Now, the points for determination are:

1). Whether the plaintiff in O.S.152/2007 on the file of Junior Civil

Judge’s Court, Rajam is entitled for partition of the plaint A and B schedule

properties into 5 equal shares and allot one such share to the plaintiff and put the plaintiff in possession of such share and for mesne profits from the date of filing of the suit?

2). Whether trial court committed any error in dismissing the suit and whether the said decree and Judgment of trial court requires any interference of this appellate court in such finding?

3). To what relief?

11. Point No.1:

The contention of the plaintiff is that originally the suit schedule properties are the ancestral properties of his father late Dalodu @ Dalayya and himself and defendants 1 to 4 who are the brother and sisters and all the plaintiff and defendants are joint family members and they were in joint possession and enjoyment of the plaint schedule lands and his grand father acquire the plaint schedule properties under registered sale deed

dated 08.04.1935 and the certified copy of registration extract of sale deed

dated 08.04.1935 executed by Samanthula Papinaidu and others in favour

of Kondadadi Dalivadu and others marked as Ex.A1 in the trial court and his grand father and Komarapuri Bodayya jointly purchased the plaint schedule land and he also obtained revenue records namely No.3 adangals and settlement fair adangals in the revenue office, Rajam the cultivation adangals issued by the M.R.O. in favour of Kondadadi Dalivadu and

6

Kondadadi Krishna and true copy of fair adangals issued in the name of

Kondadadi China Dalivadu by the Tahsildar, Rajam marked as Ex.A2 and A3

before the trial court, while the suit pending one Kothapalli Ramulu and his

sons without having no right, title or possession over the plaint schedule item No.1 in plaint B schedule sell the same to 5th defendant, hence he filed an application to implead the 5th defendant as party in the suit the alleged alienation made by the alleged Kothapalli Ramulu and his sons is not binding on the plaintiff and the sale deed dated 24.01.2012 is not legally valid and the same is not binding on the plaintiff and the sale deed is null and void and he also issued legal notice to the 3rd defendant and 5th defendant through his counsel on 10.12.2011 and office copy of the legal notice is marked as Ex.A4 and 3rd defendant and 5th defendant received the same and gave reply with untrue allegations since, the plaint A and B schedule properties are ancestral properties and plaintiff and the defendants 1 to 4 are in joint possession and enjoyment of the plaint schedule properties they are treated as joint family properties and he got 1/5th share in the plaint schedule lands hence he approached the elders and demanded for partition, but the defendants did not heed the advise of the elders, therefore, he filed this suit for partition of the plaint schedule properties into 5 equal shares and allot one such share to him and subsequent profits from the date of the suit.

12.PW.2 is maternal aunt of plaintiff also filed his chief affidavit and examined as PW.2 and her evidence is also substantiating the case of the plaintiff as she stated that she is one of the sister of plaintiff’s and defendants father and the plaint A and B schedule lands are the ancestral lands of her brother namely Kondadadi Dalodu, and the defendants 2 to 4 are her brother’s daughters and the plaintiff and defendants 1 to 4 are in joint possession and enjoyment of plaint A and B schedule properties and the plaintiff has got 1/5th undivided share in the

7

plaint schedule properties and the plaintiff raised dispute before her and other village elders of Rajayyapeta for partition of the plaint A and B schedule properties but D1 did not heed her advise and did not come forward for partition of the plaint A and B schedule properties, while the suit is pending at the instance of 1st defendant and incollusion of 1st defendant one Kothapalli Suramma sold away part of the plaint B schedule property item No.1 to the 5th defendant, therefore, the said alienation is not binding on the plaintiff.

13.Therefore, the evidence of PWs.1 and 2 discloses that originally the plaint schedule properties are the ancestral properties of the father of the plaintiff even the defendants 1 to 4 also admitting in their written statement that the plaint schedule properties are ancestral properties except item No.1 of the plaint B schedule property, but the defendants did not choose to cross examine PW.1 and PW.2 and the alleged purchaser of item No.1 of Plaint B schedule properties i.e., D5 did not contest the matter, even though he received suit summons in

O.S.152/2007.

14. Therefore, the evidence of PWs.1 and 2 is unchallenged one and the learned counsel for the appellant argued that the decree and judgment of the lower court is contrary to law and weight of evidence and probabilities of the case and the lower court ought to have decreed the suit as the defendants not contested the suit and not placed any evidence and the lower court not consider the documents filed by the plaintiff and unnecessarily discussed unwarranted pointes which are not necessary in suit for partition, when the defendants set exparte, the lower court ought to have the decreed the suit and if the court is ought to see the plaint schedule properties are the joint family properties of the appellant/plaintiff and the defendants to 4 and the lower court shall consider the documents which are admissible evidence as they issued by the revenue authorities,

8

and the properties are the joint family properties and the defendants themselves made exparte and the lower court should have consider the oldest document marked as Ex.A1 which is in favour of the grandfather of the plaintiff and the plaintiff established prima facie title and joint possession of the plaint schedule properties, therefore, the judgment of the trial court shall be set aside and allow the appeal and grant preliminary decree in favour of the plaintiff as prayed for.

15.On perusing the record the trial court concluded that as can be seen from Ex.A2 and Ex.A3 i.e., cultivation adangals issued by the Mandal

Revenue Officer in favour of Kondadadi Dalivadu and Kondadadi Krishna and true copy of fair adangals issued in the name of Kondadadi China

Dalivadu by the Tahsildar, Rajam are true copies which are inadmissible in evidence and mere marking of the document does impose obligation on the court to look into the inadmissible documents, hence, they cannot be considered and if Ex.A2 and A3 are excluded from consideration, the evidence available before the court is Exs.A1 and Exs.A4 to A6, but, they are no way helpful to the plaintiff to establish his joint possession over the plaint schedule property, though PW.2 testified through her chief evidence affidavit that the plaint schedule property is in joint family property of plaintiff and the defendants 1 to 4 as it is prepared intrinsically to suit the claim of the plaintiff and on careful analysis of the evidence available on record, there is no hesitation to held that the plaintiff has not substantiated his contention that the plaint schedule property is in joint possession of himself and defendants Nos.2 to 4, hence the suit was dismissed without costs.

16.Therefore, the trial court did not consider the documents filed by the plaintiff, for that the documents which are filed by the plaintiff are

Ex.A1 is the registration extract of the sale deed, dated 08.04.1935 that means the document was executed in the year 1935 that means the

9

document about 86 years old document, therefore, might be the plaintiff did not get the original document but it discloses that the suit schedule properties were purchased by the grandfather of the plaintiff and defendants 1 to 4 and even the defendants are also admitted that the plaint schedule properties are their ancestral properties, except item No.1 of plaint B schedule properties but the defendants did not come forward to file any document to show that item No.1 of plaint B schedule properties is not ancestral property of the father of the plaintiff and D1 to D4 and on perusing the contest of the defendants also one Bodemma daughter of

Peda Dalivadu who is grand father of the plaintiff having one son by name

Kottapalli Ramulu and he succeeded and in possession of itemNo.1 of B.

schedule property, therefore as per the admission of the defendants also item No.1 of B. schedule property originally belongs to Kondadadi Peda

Dalivadu who is none other than the grand father of plaintiff and defendants 1 to 4. If that is so item No.1 of ‘B’ plaint schedule property originally belongs to grandfather of plaintiff and defendants 1 to 4, therefore, even as per the evidence of PW.2 also all the plaint schedule properties are the ancestral properties of the father of the plaintiff and D1 to D4 even though it was contested in the written statement all the plaint schedule properties are sold away and item No.5 of ‘A’ schedule also sold to one Raghumandala Chinnappadu 20 years back and items 2,3 and 4 of plaint A schedule properties were mortgaged 15 years back to Kondadadi

Chinnammadu by the father of the plaintiff and defendants and item No.5 of the plaint schedule property sold to Raghumandala Chinnappadu about 20 years back, and item No.2 and 3 were sold to Eagala Appalanaidu by the father of the plaintiff and defendants but no documentary evidence produced by the defendants to say that those properties were sold away or mortgaged by the father of the plaintiff and defendants 1 to 4 but it is clear that if Dalodu @ Dalayya i.e., father of the plaintiff and defendants really

10

sold away and mortgaged the suit schedule properties to 3rd parties except the father of the plaintiff and defendants none other having any right over the same, therefore it clear from the contest of the defendants that the plaint schedule properties are ancestral properties of father of the plaintiff and defendants 1 to 4 and D5 also did not come forward to contest the suit by denying averments of the plaint and not shown his right and title over item No.1 of the B schedule properties, therefore, the evidence of PWs.1 and 2 is unchallenged one and the documents filed by the plaintiff in respect of the possession of his father over the suit schedule properties shall be considered and the plaintiff also got issued a legal notice to D3 and

D5 by informing to D5 not to purchase any properties and D2 having no right to sell away the same, therefore, till the joint family properties were partitioned among the joint family members it shall be presumed that those are in joint possession of the joint family members.

17. Therefore, as rightly argued by the learned counsel for the appellant, the evidence of PWs.1 and 2 is unchallenged one and the documents filed by the plaintiff clearly discloses that suit schedule properties are the ancestral properties of the father of the plaintiff D1 to

D4, unless the properties were partitioned between the joint family members the plaintiff cannot establish his title over the plaint schedule properties by showing his joint possession, therefore, admittedly no documents alleged to have been in the name of plaintiff about his joint possession, joint possession shall be considered by way of the evidence adduced by the plaintiff and he also examined PW.2 also clearly stated that all the plaint A and B schedule properties are joint family properties of plaintiff and D1 to D4 are in joint possession and enjoyment of the plaint schedule properties, therefore, when the evidence of PWs.,1 and 2 is unchallenged one and the documents also shows that plaint schedule properties are the ancestral properties of father of the plaintiff and D1 to D4

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and no partition took place during the lifetime of father of the plaintiff and

D1 to D4 and the defendants failed to prove their contest all the plaint schedule properties are sold away and mortgaged to the 3rd parties it shall be presumed that the plaintiff along with D1 to D4 are in joint possession over the schedule properties.

18.Therefore, the trial court did not consider the evidence adduced by the plaintiff, therefore, the plaintiff is entitled for the relief to grant of preliminary decree in his favour for partition of the plaint A and B schedule properties into 5 equal shares and allot one such share to the plaintiff and as the plaint schedule properties are agricultural lands, the plaintiff is also entitled for mesne profits from the date of filing of the suit.

Accordingly Point No.1 is answered.

19. Point No.2:

In view of my findings in point No.1, the trial court did not consider the material and the evidence adduced by the plaintiff and dismissed the suit, therefore, it is highly required to set aside the decree and Judgment passed by the trial court in O.S.152/2007 on the file of Junior

Civil Judge’s Court, Rajam. Accordingly, point No.2 is answered.

20. Point No.3:

In view of my findings in points 1 and 2 the appeal is hereby allowed by setting aside the decree and Judgment passed by the Junior Civil

Judge, Rajam, in O.S.No.152.2007 dated 30.12.2015 and by passing a

preliminary decree in favour of the plaintiff and against the defendants 1 to 4 for partition of the plaint A and B schedule properties into 5 equal shares and allot one such share to the plaintiff with separate possession and he is also entitled for mesne profits from the date of filing of the suit. Considering the circumstances of the case each party do bear their own costs in the

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appeal and for division of the properties and for mesne profits separate applications has to be filed u/o.20 R. 18 and 12 of CPC.

Dictated to the Stenographer transcribed by him, corrected and

pronounced by me in open Court, this the 7th day of April, 2021.

Sd/- K.Nagamani,

PRINCIPAL SENIOR CIVIL JUDGE,

SRIKAKULAM,

(FAC) SENIOR CIVIL JUDGE,

RAJAM.

APPENDIX OF EVIDENCE

For Appellant For Respondents

No oral or documentary evidence on either side in this appeal

Sd/- K.Nagamani,

PRINCIPAL SENIOR CIVIL JUDGE,

SRIKAKULAM,

(FAC) SENIOR CIVIL JUDGE,

RAJAM.