Smt K.Satya Kumari

1O.S.89/17

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE :: ONGOLE

[ Present: Smt K.Satyakumari

Prl. Senior Civil Judge, Ongole [ Wednesday, this the 3rd day of April, 2024

Original Suit No. 89 of 2017

Between :

Kasukurthy Bala Kotaiah, s/o Peda Lakshmaiah, Hindu, aged 62 years, cultivation, r/o Anantavaram village, Tangutur mandal, Prakasam District.

... Plaintiff

And

Kaja Umadevi, w/o Raja Rao, aged about 65 years, Hindu, cultivation, r/o Harikantha nilayam, Ramnagar, 6th lane, D.No. 2-4-14, Ongole, Prakasam District.

… Defendant

This suit coming on 1.4.2024 before me for final hearing in the presence of

Smt P.Lakshmi Kumari, Advocate for Plaintiff; and Sri M.Ramamurthy, Advocate for Defendant; and upon hearing the arguments, and upon perusing the material on record, and having stood over for consideration till this day, this Court delivered the following:-

// J U D G M E N T //

1.The plaintiff filed the suit for permanent injunction restraining the defendant and her men, associates, legal heirs from causing any obstructions in enjoying the suit schedule property by the plaintiff, and for costs.

2.The case of the plaintiff in brief are as follows :

Originally the land to an extent of Ac.1.50 cents in S.No.144 and an extent of Ac.1.80 cents in S.No.146 of Ananthavaram village was belonged to Puli

Totaiah. The land to an extent of Ac.3.18 cents in S.No.147 of Ananthavaram village was belonged to Brahmanakaka Kotadu @ Kotaiah and another in which 2O.S.89/17

Kotadu @ Kotaiah had Ac.1.68 cents. During their life time they had enjoyed the same with absolute rights. The plaintiff has got item No.1 of the suit schedule property to an extent of Ac.1.50 cents in S.No. 144 of Ananthavaram village through the WILL which was executed by Puli Totaiah on 5.4.1984 in a sound and disposing state of mind. Similarly the plaintiff’s wife also got the property to an extent of Ac.1.80 cents in S.No.146 of Ananthavaram village through the above said WILL. The said Totaiah died on 7.1.1985. The plaintiff has got item

No.2 of the suit schedule property i.e., an extent of Ac.1.68 cents in S.No.147 of

Ananthavaram village through the WILL which was executed by Brahmanakaka

Kotadu @ Kotaiah on 9.5.1980 in a sound and disposing state of mind. The said

Brahmanakaka Kotadu @ Kotaiah died on 4.11.1981. The above said two WILLS came into force. By virtue of said two WILLS, the plaintiff became absolute owner of the suit schedule property and he has been in possession and enjoyment of the suit schedule property with absolute title. Similarly the plaintiff’s wife is in possession and enjoyment of the property to an extent of Ac.1.80 cents in

S.No.146 of Ananthavaram village with absolute rights. The revenue authorities recognised the plaintiff and his wife possession and enjoyment over the respective properties entered their names in revenue records. The plaintiff was issued pattadar pass book and title deed in respect of his landed properties including the suit schedule.

The plaintiff converted the suit schedule property to an extent of Ac.3.18 cents into two aquaculture ponds about 23 years back and has been doing aquaculture therein. The coastal aquaculture authority officials were inspected the suit schedule two ponds and they issued a certificate on 4.1.16 in favour of the plaintiff by recognising the aquaculture cultivation in the suit property. His wife also having aquaculture ponds to the eastern side of item No.1 of the suit 3O.S.89/17 schedule property and they both are doing joint aquaculture cultivation. The plaintiff obtained electricity service connection in the name of his wife bearing

S.C.No. 4345201000237.

The defendant is an adjacent aquaculture pond owner and she is also doing aqua cultivation. Disputes arose in between the plaintiff and the defendant in drawing of blackish water through motors and let out the used water from the ponds of the defendant. The defendant is trying to let out waste water from her ponds unlawfully through the suit schedule ponds of the plaintiff to which the plaintiff raised objection. The defendant developed grudge against the plaintiff and the defendant giving out in the village and making proclamation that she will cause obstructions to the plaintiff in enjoying the suit schedule property. Having no other go, the plaintiff is constrained to file the suit for permanent injunction.

3.On receipt of summons, the defendant filed her written statement denying the material averments of the plaint. The defendant contended that infact the defendant is the absolute owner of the suit property for an extent of Ac.1.50 cents situated in S.No.144. The defendant and one Kantamaneni Jyothi has got joint right over an extent of Ac.3.18 cents situated in S.No.147 of Ananthavaram village of Tangutur mandal. On 24.6.2004 the defendant and Kantamaneni

Jyothi executed a registered lease deed in favour of Anjaneya Aqua, represented by its Managing Partner Damacharla Venkata Krishna Rao pertaining to the suit schedule properties. The said lease deed attested by the plaintiff as 1st attestor.

On 12.3.2010 the defendant and Kantamaneni Jyothi executed a registered lease deed in favour of Periyandi Ravi Chadhran pertains to an extent of Ac.1.68 cents in S.No.147. The plaintiff attested the registered lease deed as 2nd attestor.

The plaintiff has no manner of right over the suit schedule properties. The 4O.S.89/17 unregistered WILLS dt. 5.4.1984 and dt. 9.5.1980 are fabricated one. The plaintiff fabricated the suit documents in collusion with revenue authorities basing on fabricated WILLS. Hence, the defendant prays the court to dismiss the suit with costs.

4.On hearing both sides and based on the pleadings of both sides, the following issues were framed for trial by my learned predecessor in the office:

1. Whether an unregistered WILL deed dt. 5.4.1984 executed by Puli

Thotaiah and unregistered WILL deed dt. 9.5.1980 executed by

Brahmanakaka Kotadu @ Kotaiah are true, valid and binding on the defendant ?

2. Whether the plaintiff has been in possession and enjoyment of the suit schedule property as on the date of filing of the suit ?

3. Whether the plaintiff entitled for permanent injunction as prayed for ?

4. To what relief ?

5.During the course of trial, Pw.1 to 3 were examined on plaintiff’s side and

Ex.A.1 to A.22 were got marked. On behalf of the defendant’s side Dw.1 was examined and no documents were got marked.

6.Heard on both sides.

7.Issue Nos. 1 and 2 :

1. Whether an unregistered WILL deed dt. 5.4.1984 executed by Puli

Thotaiah and unregistered WILL deed dt. 9.5.1980 executed by

5O.S.89/17

Brahmanakaka Kotadu @ Kotaiah are true, valid and binding on the

defendant ?

2. Whether the plaintiff has been in possession and enjoyment of

the suit schedule property as on the date of filing of the suit ?

In order to avoid repetition these two issues are discussed together for the sake of convenience. The burden lies upon the plaintiff to prove these two issues.In order to prove the case of the plaintiff, Pw.1 to 3 were examined and

Ex.A.1 to A.22 were got marked. The evidence of Pw.1, who is the plaintiff, almost all re-iterated his plaint averments. It is the specific case of Pw.1 thathe got acquired item No.1 of the suit schedule property as per WILL dt. 5.4.1984 under Ex.A.1 executed by Puli Totaiah. Pw.1 also got acquired item No.2 of the suit schedule property as per Ex.A.2 WILL dt. 9.5.1980 executed by

Brahmanakaka Kotadu @ Kotaiah. Ex.A.3 and Ex.A.4 shows that Brahmanakaka

Kotadu @ Kotaiah died on 4.11.1981 and Puli Totaiah was died on 7.1.1985.

After the death of Puli Totaiah and Brahmanakaka Kotadu @ Kotaiah, the plaintiff became the absolute owner of the properties covered under Ex.A.1 and

A.2 and he has been in possession and enjoyment of the same. The revenue authorities also recognised his possession and enjoyment over the suit schedule properties and issued a Ex.A.5 pattadar pass book. Ex.A.6 to A.8 shows that the name of the plaintiff was entered in revenue records. Ex.A.9 shows that the plaintiff converted the suit schedule property to an extent of Ac.3.18 cents into two aquaculture ponds. The aquaculture authorities got issued a certificate on 4.1.2016 in favour of the plaintiff by recognising his aquaculture cultivation in the suit schedule property. Pw.1 regularly paying revenue taxes as per Ex.A.11 to 6O.S.89/17

A.15. The plaintiff obtained electricity service connection in the name of his wife as per Ex.A.10.

8.It is the specific case of the plaintiff that the defendant, who is an adjacent aquaculture pond owner, doing aqua cultivation. There are disputes arose in between the plaintiff and the defendant in drawing of blackish water through the motors and let out the used water from the ponds of the defendant. The defendant is trying to let out waste water from her ponds unlawfully through the suit schedule ponds of the plaintiff to which the plaintiff raised an objection. Due to that the defendant developed grudge against the plaintiff and proclaiming in the village that he will cause troubles to his aquaculture in enjoying the suit schedule property.

9.It is settled law that in a suit for permanent injunction, the question of deciding title is incidental and the plaintiff must prove his possession over suit property as on the date of suit. In the present suit in order to prove the lawful possession of the plaintiff over the suit schedule property, the plaintiff relied upon

Ex.A.5 to A.8 and A.17 and A.19 i.e., pattadar pass book, 1-B namoona, No.3 adangal stands in the name of plaintiff in respect of S.No. 144 and S.No.147 relating to the plaint schedule property.

10.Pw.2 who is the grand son of one of the attestor of Ex.A.1 and A.2 categorically stated that his paternal grand father by name Mittanosula @

Midasala Rosaiah stood as an attestor in Ex.A.2 executed by Brahmanakaka

Kotadu @ Kotaiah in favour of plaintiff, and also his paternal grand father also stood as an attestor in Ex.A.1 executed by Puli Totaiah in favour of plaintiff and his wife. Pw.2’s maternal grand father’s brother by name Kasukurthy Subbaiah 7O.S.89/17 who stood as 2nd attestor on Ex.A.2. Kasukurthy Subbaiah died about 23 years back. Pw.2 can identify the signatures of his paternal grand father and also maternal grand father on Ex.A.1 and A.2.

In the cross examination of Pw.2 it is elicited that Pw.2’s father was died at about 20 years back. Pw.2 was present at the time of execution of WILL in respect of S.No.147 of Ananthavaram village, at that time he was aged about 14 years. Plaintiff and Rosaiah were present at the time of execution of the WILL.

Pw.2 was accompanied with his grand father whereever he goes. Pw.2 identified the signature of first attestor of Ex.A.1 and A.2 belongs to his paternal grand father.

11.The evidence of Pw.3 who is the third party to the suit categorically stated that his paternal grand father by name Kasukurthi Jalaiah who stood as 2nd attestor in Ex.A.1 WILL executed by Puli Totaiah in favour of plaintiff and his wife

Bala Nagamma. His paternal grand father died about 4 years back. Pw.3 also identified the signatures of his paternal grand father in Ex.A.1 WILL.

12.As per clause (c) of Section 63 of the Indian Succession Act requires and mandates attestation of a Will by two or more persons as witnesses, even though

Section 68 of the Evidence Act gives concession to those who want to prove and establish a Will in the court of law by examining at least one attesting witness who could prove the execution of the Will viz., attestation by the two witnesses and its execution in the manner contemplated by clause (c) to Section 63 of the

Indian Succession Act.

But in this case the attestors of Ex.A.1 and A.2 were died. The grand sons of attestors were examined and they identified the signatures of their grand 8O.S.89/17 fathers. The plaintiff also proved the WILLS as per Ex.A.1 and A.2 by examining

Pw.2 and 3. After death of Brahmanakaka Kotadu @ Kotaiah and Totaiah, the plaintiff has been in possession and enjoyment of the suit schedule property and revenue authorities also got issued a pattadar pass book and his name was also entered in revenue records. Thereafter, the plaintiff also converted the suit schedule property and doing aquaculture. The evidence of Pw.1 to 3 clearly shows that the plaintiff has been in peaceful possession and enjoyment of the suit schedule property by doing aquaculture cultivation.

13.To prove the case of the defendant, the defendant herself examined as

Dw.1. The evidence of Dw.1 is almost all re-iterated the written statement averments. It is the specific case of the defendant that the alleged WILLS dt.

5.4.1984 and dt.9.5.1980 are fabricated documents. They were brought into existence for the purpose of filing of the suit. The alleged testator Puli Thotaiah had no manner of right over item No.2 of the suit schedule property. Dw.1 further contended that she is the absolute owner of the suit property for an extent of

Ac.1.50 cents situated in S.No.144. Dw.1 and one Kantamaneni Jyothi has got joint right over an extent of Ac.3.18 cents situated in S.No.147 of Ananthavaram village of Tangutur mandal. On 24.6.2004 Dw.1 and Kantamaneni Jyothi executed a registered lease deed in favour of Anjaneya Aqua, represented by its

Managing Partner Damacharla Venkata Krishna Rao pertaining to the suit schedule properties. The said lease deed attested by the plaintiff as 1st attestor.

On 12.3.2010 Dw.1 and Kantamaneni Jyothi executed a registered lease deed in favour of Periyandi Ravi Chadhran pertaining to an extent of Ac.1.68 cents in

S.No.147. The plaintiff attested the registered lease deed as 2nd attestor.

9O.S.89/17

Except the oral statement of the defendant, she did not produce the alleged lease deeds dt. 24.6.2004 and dt. 12.3.2010 to show that Dw.1 and

Jyothi executed a registered lease deeds in respect of Anjaneya Aqua, represented by its Managing Partner Damacharla Venkata Krishna Rao pertaining to the suit schedule properties and in that lease deeds the plaintiff was stood as an attestor. In the absence of any document it cannot be said that the plaintiff stood as attestor of lease deeds dt. 24.6.2004 and 12.3.2010 executed by defendant and Jyothi in respect of their lessee. Moreover, the plea taken by the defendant is that Ex.A.1 and A.2 are fabricated one. Except the evidence of

Dw.1 there is no other material to prove her contention as pleaded in her written statement that Ex.A.1 and A.2 are forged documents.

14.With regard to the possession of the plaintiff this court relied upon a decision reported in between Anathula Sudhakar Vs. P.Buchi Reddy (dead) by L.Rs and others dt. 25.3.2008 wherein the Hon’ble Apex Court held that -

“Where a plaintiff is in lawful or peaceful possession of a

property and such possession is interfered or threatened by the

defendant, a suit for an injunction simpliciter will lie. A person has a

right to protect his possession against any person who does not

prove a better title by seeking a prohibitory injunction.”

12. We may however clarify that a prayer for declaration will be

necessary only if the denial of title by the defendant or challenge to

plaintiff's title raises a cloud on the title of plaintiff to the property. A

cloud is said 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 third

party over it, is made out or shown. An action for declaration, is the

10O.S.89/17

remedy to remove the cloud on the title to the property. On the other

hand, 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 does not 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. Where the plaintiff, believing that defendant is only a

trespasser or a wrongful claimant without title, files a mere suit for

injunction, and in such a suit, the defendant discloses in his defence

the details of the right or title claimed by him, which raises a serious

dispute or cloud over plaintiff's title, then there is a need for the

plaintiff, to amend the plaint and convert the suit into one for

declaration. Alternatively, he may withdraw the suit for bare

injunction, with permission of the court to file a comprehensive suit

for declaration and injunction. He may file the suit for declaration with

consequential relief, even after the suit for injunction is dismissed,

where the suit raised only the issue of possession and not any issue

of title.”

13. 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 the suit he was in lawful possession of

the suit property and defendant tried to interfere or disturb such

lawful possession. “

17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

11O.S.89/17

(a) Where a cloud is raised over plaintiff's title and he does not have

possession, a suit for declaration and possession, with or without a

consequential injunction, is the remedy. Where the plaintiff's title is

not in dispute or under a cloud, but he is out of possession, he has to

sue for possession with a consequential injunction. Where there is

merely an interference with plaintiff's lawful possession or threat of

dispossession, it is sufficient to sue for an injunction simpliciter.

(b) 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 finding on possession. But in cases where de jure

possession has to be established on the basis of title to the property,

as in the case of vacant sites, the issue of title may directly and

substantially arise for consideration, as without a finding thereon, it

will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction,

unless there are necessary pleadings and appropriate issue regarding

title [either specific, or implied as noticed in Annaimuthu Thevar

(supra)]. Where the averments regarding title are absent in a plaint

and where there is no issue relating to title, the court will not

investigate or examine or render a finding on a question of title, in a

suit for injunction. Even where there are necessary pleadings and

issue, if the matter involves complicated questions of fact and law

relating to title, the court will relegate the parties to the remedy by way

12O.S.89/17

of comprehensive suit for declaration of title, instead of deciding the

issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and

appropriate issue relating to title on which parties lead evidence, if the

matter involved is simple and straight-forward, the court may decide

upon the issue regarding title, even in a suit for injunction. But such

cases, are the exception to the normal rule that question of title will

not be decided in suits for injunction. But persons having clear title

and possession suing for injunction, should not be driven to the

costlier and more cumbersome remedy of a suit for declaration,

merely because some meddler vexatiously or wrongfully makes a

claim or tries to encroach upon his property. The court should use its

discretion carefully to identify cases where it will enquire into title and

cases where it will refer to plaintiff to a more comprehensive

declaratory suit, depending upon the facts of the case.”

15.In this suit, after the death of testators of Ex.A.1 and A.2, Pw.1 became the absolute owner of the suit schedule property and he has been in possession and enjoyment of the suit schedule property. Pw.1 also converted the suit schedule properties and doing aquaculture cultivation. Hence, the evidence of Pw.1 to 3 coupled with Ex.A.1 to A.22 shows that Ex.A.1 and A.2 are true, valid and binding on the defendant and the plaintiff has been in peaceful possession and enjoyment of the suit schedule property as on the date of filing of the suit.

Accordingly, issue Nos.1 and 2 are answered in favour of the plaintiff and

as against the defendant.

13O.S.89/17

16.Issue No.3 :

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

As per Section 38 of Specific Relief Act – Permanent Injunction can be granted only to the person who is in actual possession of the property. The burden of proof lies upon the plaintiff to prove that he is in actual and physical possession of the property as on the date of filing of the suit.

While granting permanent injunction the following principles to be followed or complied. They are -

1.It is the plaintiff who must establish his legal right and also his exclusive possession on the date of the suit to have the relief of perpetual injunction.

2.Since injunction is an equitable and discretionary remedy, persons seeking injunction must have personal interest in the subject matter.

3.Person seeking the relief of injunction must show the violation of his right by the act complained and if the act is carried into effect, it must be result in the infringement of his legal right.

4.The question of title may also have to be gone into incidentally.

Section 38 of Specific Relief Act, 1963 deals with circumstances in which the relief of permanent injunction can be granted. Section 41 of Specific Relief

Act, 1963 specifies the cases where injunction must not be granted. So far as the burden of proof is concerned it is the plaintiff who comes to equity, must come with clear case without any ambiguity and prove the same by preponderance of probabilities. Further the plaintiff should not take any weakness if any on the part of the defendant as advantage to succeed his case.

14O.S.89/17

17.It is an undisputed fact that the plaintiff is the absolute owner of the plaint schedule property as per Ex.A.1 to A.22. The evidence of Pw.2 & 3 also supported to that extent. The plaintiff has been in possession and enjoyment of the schedule property as on the date of filing of the suit. Hence, the plaintiff is entitled for permanent injunction as prayed for. Accordingly, the issue No.3 is answered in favour of the plaintiff and as against the defendant.

18.Issue No.4 :

To what relief ?

In view of findings in issue No.1 to 3, this court holds that the plaintiff is entitled for permanent injunction.

19.In the result, suit is decreed with costs by granting permanent injunction restraining the defendant and her men, associates, legal heirs from causing any obstructions in enjoying the suit schedule property by the plaintiff.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in Open Court, this the 3 rd day of April, 2024

Sd/- K.Satyakumari

Prl. Senior Civil Judge,

Ongole

// APPENDIX OF EVIDENCE //

Witnesses Examined

For Plaintiff : For Defendant :

Pw.1 : Kasukurthy Bala KotaiahDw.1 : Khaja Umadevi

Pw.2 : Midasala @ Mittanosula Yesurathnam

Pw.3 : Kasukurthy Ajay Kumar 15O.S.89/17

Documents Marked

For Plaintiff :

Ex.A.1 :Unregistered WILL dt.5.4.1984

Ex.A.2 : Unregistered WILL dt.9.5.1980

Ex.A.3 : True copy of death certificate of Brahmanakaka Kotadu @ Kotaiah

Ex.A.4 : True copy of death certificate of Puli Thotaiah

Ex.A.5 :Original pattadar pass book stands in the name of plaintiff relating to khata No. 603 of Ananthavaram village

Ex.A.6 : 1-B namoona stands in the name of the plaintiff obtained through mee seva relating to khata No. 603 of Ananthavaram village

Ex.A.7 : No.3 adangal stands in the name of the plaintiff obtained through mee seva relating to S.No.144

Ex.A.8 : No.3 adangal stands in the name of the plaintiff obtained through mee seva relating to S.No.147

Ex.A.9 : Certificate of registration of Costal Aqua Culture farm dt. 4.1.16 in respect of S.No.144 and 147 of Ananthavaram village.

Ex.A.10 : Electricity bills 12 in number stands in the name of Bala Nagamma who is the wife of the plaintiff

Ex.A.11 : Land cist receipt dt. 10.2.1988 for the year fasli 1404 to 1407

Ex.A.12 : Land cist receipt dt. 5.2.2004 for the year fasli 1410 to 1412

Ex.A.13 : Land cist receipt dt. 7.8.2006 for the year fasli 1413 to 1415

Ex.A.14 : Land cist receipt dt. 4.2.2008 for the year fasli 1416 to 1417

Ex.A.15 : Land cist receipt dt. 29.6.2015 for the year fasli 1418 to 1419

Ex.A.16 : Photos four in number along with CD

Ex.A.17 : True copy of RSR in suit S.No.144 and 147 of Ananthavaram village under RTI Act issue by MRO, Tangutur

Ex.A.18 : Original No.3 adangal copy dt. 12.11.98 stands in the name of the plaintiff in respect of S.No.144 and 147

Ex.A.19 : Certified copy of 1-B namoona (RoR) stands in the name of the defendant in khata No. 634 obtained through mee seva

Ex.A.20 : Certified copy of adangal stands in the name of the defendant in S.No.173/3 of Ananthavaram village obtained through mee seva 16O.S.89/17

Ex.A.21 : Certified copy of adangal stands in the name of defendant in S.No.173/4 of Ananthavaram village obtained through mee seva.

Ex.A.22 : Certified copy of adangal stands in the name of defendant in S.No.145 of Ananthavaram village obtained through mee seva.

For Defendant :

- Nil -

Prl. S.C.J.

1

CALENDAR AND JUDGMENT

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE :: MARKAPUR

SESSIONS CASE No. 285 of 2017

Complainant:STATE represented by it’s Inspector of Police, Markapur.

Description of the Accused :Yeruva Madhava Rao, S/o. Kesavarao, aged 29 years, Pamula by caste, Driver of mini lorry bearing No.AP27 TU 2898 (Ashok Leyland Goods Carriage), Rompicherla Village and Mandal, Guntur District, R/o.Akklareddypalli Village, Giddalur Mandal.

Charges:Under sections 304-II IPC and Section 134 (a) &

(b) r/w section 187, Section 196 of M.V Act

Plea of the Accused:Not guilty

Finding of the Court:Found not guilty

Sentence or Order:In the result, the accused is found not guilty of the charges indicted against him for the offences punishable under Sections 304-II of

I.P.C and Sections 187 and 196 of M.V Act as such he is acquitted under section 235 (1) of

Cr.P.C. The bail bonds of accused shall remain in force for a period of six months as contemplated under section 437-A Cr.P.C. The

Interim Custody of crime vehicle lorry bearing

Registration No.AP27 TU 2898 with it’s registered owner is made absolute.

DATES OF

Occurrence:24-07-2017 Complaint:24-07-2017 Committal Order:20-10-2017 Appearance :19-11-2021 Commencement of trial:22-08-2022 Closure of trial:15-11-2022 Sentence or Order:18-08-2023

Explanation for the delay:

The entire case record was received from the Hon'ble District & Sessions

Judge's Court, Ongole. Charges were framed against the accused on 19.11.2021

and summons were issued to the listed witnesses, fixing the schedule for trial.

2

The evidence of prosecution commenced on 22-08-2022 and closed by 15-11- 2022. The prosecution examined on it’s behalf PWs1 to 12 and got marked

Exs.P1 to Ex.P20. The accused was examined on 25-11-2022 under section 313 Cr.P.C, explaining the incriminating circumstances appearing against him in the evidence of prosecution, for which he denied and reported to have no evidence. Consequently evidence of defence was closed. The case was posted for arguments to 30.11.2022 and on that day this Court issued NBW against the accused for his absence and no representation. On 19.12.2022 this court has issued notices to the sureties. On 23-06-2023 the NBW against the accused is recalled on condition and the case is posted for arguments to `14.07.2023. the arguments of both sides were completed on 11.08.2023. On 18.08.2023 the

Judgment is pronounced The delay in disposal of case is mainly on account of out break of Covid-19.

Sd/- Smt. K.S.K

Principal Assistant Sessions Judge, Ongole

FAC: Assistant Sessions Judge, Markapur

Copies submitted to:-

1. The Hon’ble Prl. District & Sessions Judge, Ongole Copies to:-

2. The District Collector, Prakasam District, Ongole

3. The Superintendent of Police, Ongole

4. The Addl. Judl. Magistrate of I Class, Markapur

5. The Addl. Public Prosecutor, Markapur // True Copy //

Principal Assistant Sessions Judge, Ongole

FAC: Assistant Sessions Judge, Markapur 3

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE :: MARKAPUR

Present:- Smt. K. Satya Kumari,

Principal Assistant Sessions Judge, Ongole

FAC: Assistant Sessions Judge, Markapur

Friday, this the Eighteenth day of August, 2023

SESSIONS CASE No. 285 of 2017

(P.R.C.No.33/2017 of Addl. Judicial Magistrate of I Class Court, Markapur in Cr.No.65/2017 of Peddaraveedu Police Station)

State: represented by it’s Inspector of Police, Markapur..Complainant

Vs

Yeruva Madhava Rao, S/o. Kesavarao, aged 29 years, Pamula by caste, Driver of mini lorry bearing No.AP27 TU 2898 (Ashok Leyland Goods Carriage), Rompicherla Village

and Mandal, Guntur District, R/o.Akklareddypalli Village,...Accused

Giddalur Mandal.

This Sessions Case coming up before me on 11th day of August, 2023 for arguments in the presence of the Assistant Public Prosecutor for the State/

Complainant and of Sri K. Narendranath, Advocate for the accused and on perusal of the material on record and after hearing the arguments of both sides and the matter having stood over for consideration, till this day, this Court, delivered the following:-

// J U D G M E N T //

1.The State represented by it’s Inspector of Police of Markapur Circle has laid down charge-sheet against the accused for the offences punishable under Sections 304-II of I.P.C & Section 187 and 196 of Motor Vehicles

Act.

2.The quintessence of prosecution case is that on 24.07.2017 morning the deceased after collecting the vegetables coming on his motor cycle bearing No.AP27 AF 8845 from Markapur and when he reached KITS

Engineering College the accuse being the driver of Ashok Leyland Mini

Lorry bearing Registration No.AP27 TU 2898 proceeding to Markapur 4 from Devarajugattu side drove the vehicle in a rash and negligent manner at a high speed dashed against the motor cycle of the deceased due to which he fell down on the road and sustained fatal bleeding injuries on his body and lost conscious. The accused fled away from the spot. LW5/

Shaik Noor Ahammad, LW6/Shaik Jainullabdin, LW7/Shaik Mastan and

LW8/Syed Rafi after coming to know about the incident shifted the deceased to Government Area Hospital, Markapur in 108 ambulance, while under going treatment the deceased died. Basing on the report of

LW1/Shaik Mallikabi, LW17/I.V. srinivasa Rao, HC 1870 registered the case in Cr.No.65 of 2017 under section 304-II of IPC and Sections 187 of

M.V Act. During the course of investigation LW18/D. Mallikarjuna Rao,

Inspector of Police observed the scene of accident in the presence of

LW12/Singareddy Lakshmaiah and LW13/Katikala Yacob and prepared the observation report duly attested by them, photographed the scene of accident, drafted the rough sketch, held inquest over the corpus of deceased in the presence of elders LW12/Singareddy lakshmaiah, LW13/

Katikala Yacob and LW14/Annem Venkata Subbareddy and got prepared the Inquest report; recorded the statements of LW1/Shaik Mallikabi,

LW2/Shaik Fakhoor Miya, LW3/Shaik Khasim Peera and LW4/Shaik Vali, seized the crime vehicle, sent requisition to M.V.I, arrested the accused on 29.07.2017 and sent him for judicial remand; added section 196 of

M.V Act as the accused drove the crime vehicle without any valid insurance; LW15 conducted autopsy over the corpse of deceased and issued P.M certificate; after receipt of M.V.I report issued by LW16 and after completion of Investigation chargesheet has been laid down against the accused, holding him guilty of the offences punishable under sections 304-II of I.P.C & Sections 187 and 196 of Motor Vehicles Act.

5

4.The Learned Addl. Judicial Magistrate of First Class, Markapur, having taken cognizance of the offences, punishable under Sections 304-II of

I.P.C & Section 134 (a) & (b) r/w section 187 and 196 of M.V Act, has registered the crime as Preliminary Registered Case in P.R.C No.33/2017 and committed the case to the Sessions Court, Sessions Division of

Ongole, from where it was made over to this (Assistant Sessions Judge's)

Court of Markapur and registered as Sessions Case No.285 of 2017.

5.The accused, pursuant to summons have appeared before Court, reported means to defend him in the course of trial as such charges under sections 304-II of I.P.C & Section 134 (a) & (b) r/w section 187 and 196 of M.V

Act, have been framed, read over and explained to him in his regional dialect, whereupon he pleaded not guilty and claimed to be tried and that therefore he was put on his trial.

6.The theory of defence is one of total denial.

7.During the course of trial, PWs1 to 12 have been examined for the prosecution and got marked on it's behalf Exs.P1 to P20.

8.Thereafter, the accused has been examined under section 313 of Cr.P.C, explaining the incriminating circumstances appearing against him in the evidence of prosecution, who having heard, denied the incriminating evidence and reported to have no defence evidence, resulting closure of defence evidence and heard arguments of prosecution and defence.

9.Now the Points that arise for determination in the sessions case on hand are:-

1. Whether the accused being the driver of offending Mini lorry drove it in a rash and negligent manner at high speed with the knowledge that it endangers human life, dashed against the motor cycle of the deceased , that claimed his precious life?

2. Whether the the accused has failed to take all reasonable steps to secure medical attention of the injured/deceased and report to the police occurrence of accident?

6

3. Whether the accused drove the offending tractor without having effective police of insurance?

4. Whether the prosecution bring home the guilt of accused beyond a shadow of doubt?

10. Points 1 to 4: The specific case of Prosecution is that the accused, being the driver of offending mini lorry drove it in a rash and negligent manner at high speed with the knowledge that it endangers human life, dashed against the motor cycle of the deceased that claimed his precious life.

Whereas, the accused denied to have driven the offending vehicle.

Therefore, the burden of proof, as in the case of adversarial system rests upon the shoulders of prosecution, to bring home the guilt of accused beyond a reasonable doubt.

11. The Prosecution, so as to substantiate it's charges leveled against the accused has examined the informant-cum-wife of deceased as PW1/Sk.

Mallika Bee, who deposed to have not known the manner of accident.

However, she is said to have received information that her husband while reached KITS College, Devarajugattu met with an accident, whereupon she is said to have proceeded to the Government Hospital, Markapur and found her husband is no more.

12.The Prosecution has examined Pws2 to 6, who deposed to have not known the manner of accident. However, they are came to know that the deceased is met with an accident at KITS College, Devarajugattu and all of them reached the Government Hospital, Markapur and found he is no more.

13. Thus, PWs1 to 6, the kith and kin of the deceased have given a big jolt and death blow to the case of prosecution and have laid a path for 7 successful escape of the accused from the clutches of Law. Despite the fact that the learned Prosecutor has declared PWs1 to 6 hostile and cross examined them with the permission of the Court, suggesting them to have been won over by the accused after effecting compromise although the negligent driving of accused led to cause accident. Barring few suggestions, nothing substantial and useful to the case of prosecution has been elicited from the witnesses.

14.The Prosecution has examined one G. Naga Sundara Narahari as PW7, who deposed that he do not remember whether or not he shot photographs of scene of accident and he can say whether or not he has taken such photographs. He further deposed that he has received tweleve photographs from the S.I of Peddaraveedu P.S through whats app.

15. The Prosecution has examined one S. Lakshmaiah, V.R.O as PW8, who is said to be mediator for scene observation report, inquest and also seizure of crime vehicle. He deposed that the police has observed the scene of accident in his presence on 24.07.2017 at 11.15 A.M, prepared rough sketch, got shot photographs, prepared scene observation report. He further deposed that on the same day at about 12.30 P.m the police hold inquest over the corpse of deceased and at about 4.00 P.M police seized

AP27 TU 2898 crime vehicle from the scene of accident under Ex.P13 seizure report.

16. PW8 was subjected to cross examination. PW8, during the course of his cross examination, has failed to divulge the name and designation of the person the scene observation report had been drafted. He was unable 8 to remember the crime number of the case in which he acted as a mediator Neither in his chief examination nor cross examination PW8 was unable to disclosed the registration number of the offending lorry or the company made the offending lorry or the colour of lorry or any other details or descriptions of offending lorry without which disclosure of details the evidence of PW8 that he stood as a witness for the seized of crime vehicle under Ex.P13 does not strike or inspire the confidence of the court.

17. The Prosecution has examined one K.S.Dayanidhi, C.A.S as PW9, who deposed that on 24.07.2017 at 3.15 P.M he conducted Postmortem over the corpse of deceased and issued P.M certificate opining that the deceased would appear to have died of Hypovolemic shock due to multiple fractures caused in a road traffic accident and he issued Ex.P14

P.M certificate.

18.The Prosecution has examined one Ch. Rambabu, M.V.I as PW10, who deposed that he has received requisition from S.I of Police Markapur on 02.08.2017, then he inspected the Light Goods Vehicle bearing

Registration No.AP21 TU 2898 at 5.00 P.M and found bumper right side bent, wind screen glass broken and right head light broken. Then he conducted road test and found it’s breaks are in good working condition and even action. He further deposed that he opined that the accident is not due to any mechanical defects of the crime vehicle accordingly issued

Ex.P15 accident report. The accused did not choose to dispute the evidence of PW10. The unchallenged evidence of P.W.10 thus 9 establishes that the offending lorry met with an accident sustaining damages on it’s front right side.

19. The Prosecution has examined one I.V. Srinivasa Rao, Head constable as

PW11, who deposed that on 24.07.2017 at 10.50 A.M PW1 presented a report, basing on it he registered it as a case in Cr.No.65/2017 under section 304-II, Section 134 (a) & (b) r/w Sec.187 of M.V Act and then transmitted the FIR to AJMFC, Markapur and the further investigation has been handed over to LW8/D. Mallikarjuna Rao, Inspector of Police.

20. The Prosecution has examined one D. Mallikarjuna Rao, Inspector of

Police as PW12, who deposed that That on 24.7.2017 having received investigation from PW11, proceeded to the scene of accident, where scene of accident has been observed in the presence of mediators PW8 and LW13/K. Yacob, got shot photographs through PW7, drew rough sketch, proceeded to Government Hospital, Markapur hold inquest over the corpse of deceased/Sk. Mahaboob Peera in the presence of PW8,

LW13 and LW14/A. Venkata Subbareddy, recorded the statements of

Pws1 to 4, got conducted autopsy, proceeded to Peddaraveedu, secured

Pws5,6, LW7/Sk. Masthan and LW8/Sk. Rafee and recorded their statements, seized offending vehicle bearing No.AP27 TU 2898 at R.R fruit market in the presence of PW8 and LW13/K. Yacob under the cover of mediator report, isued requisition to M.V.I, who inspected the crime vehicle and issued opinion. On 25.07.2017 he examined and recorded the statement of LW9/Sk.Raffee and 29.07.2017 at 11.00 A.M he apprehended the accused at Hanuman Junction/Kunta of Peddaraveedu

Mandal and seized from his original sale agreement, R.C and photocopy 10 of driving license, produced the accused for judicial custody, filed alteration memo adding section under M.V Act, for not holding effective insurance policy and one B. Srinivasa Rao, Inspector of Police filed chargesheet.

21. The Prosecution, as a last ditch effort, has examined the then

Investigation Officers as PW11 and PW12, whom deposed the way in which they carried out investigation. But, PW11 and PW12 are not an eye witnesses. The only material witness available in the record is PW8, who is a mediator for Ex.P10, Ex.P12 and Ex.P13 reports. During his cross examination he failed to depose the person who scribed Ex.P10 Scene

Obse13rvation Report and also the details of the crime number. In the light of hostility of the main witnesses, the evidence of I.Os that the accused, being the driver of offending lorry drove it in a rash and negligent manner at high speed with the knowledge that it endangers human life, dashed the opposite coming motor cycle of the deceased, that claimed his precious life, does not suffice. None of the prosecution witnesses have spoken to that it is the accused, who drove the offending crime vehicle at the relevant time of accident. What all the evidence of family members of deceased is that the deceased met with an accident at

KITS College, Devarajugattu . So, the evidence of PW12 does not elevate the case of prosecution.

22. The prosecution has thus miserable failed to establish that it was the accused, who drove the offending tractor at the relevant time of accident.

The accused, not being established to be the driver of offending crime vehicle, his providing immediate medical attention to the injured-cum- 11 deceased and provide accident intimation to the police does not crop up.

The prosecution, thus, failed to establish the culpable driving of accused.

Thus, none of the charges leveled against the accused are proved beyond a pale of doubt and that the accused is the best person entitled to receive benefit of doubt.

23.In the result, the accused is found not guilty of the charges indicted against him for the offences punishable under Sections 304-II of I.P.C and

Sections 187 and 196 of M.V Act as such he is acquitted under section 235 (1) of Cr.P.C. The bail bonds of accused shall remain in force for a period of six months as contemplated under section 437-A Cr.P.C. The

Interim Custody of crime vehicle lorry bearing Registration No.AP27 TU 2898 with it’s registered owner is made absolute.

Typed to my dictation to the Personal Assistant, corrected and pronounced by me in the open court, this the 18th day of August, 2023.

Sd/- Smt. K.S.K

Principal Assistant Sessions Judge, Ongole

FAC: Assistant Sessions Judge, Markapur

// APPENDIX OF EVIDENCE //

Witnesses Examined For Prosecution: PW1:Shaik Mallikbi PW2:Shaik Fakhoor Miya PW3:Shaik Khasim Peera PW4:Shaik vali PW5:Shaik Noor Ahammad PW6:Shaik Jainullabdin PW7:Gopaluni Naga Sundhara Narahari PW8:Singareddy Lakshmaiah PW9:Dr.K.S. Dayanidhi PW10:Chandra Rambabu PW11:I.V Srinivasa Rao PW12:D. Mallikarjuna Rao, Inspector of Police For Defence : NIL 12

Documents Marked

For Prosecution:

Ex.P1:Section 161 Cr.P.C statement of PW1 Ex.P2:Section 161 Cr.P.C statement of PW2 Ex.P3:Section 161 Cr.P.C statement of PW3 Ex.P4:Section 161 Cr.P.C statement of PW4 Ex.P5:Section 161 Cr.P.C statement of PW5 Ex.P6:Section 161 Cr.P.C statement of PW6 Ex.P7:Eight photographs Ex.P8:12 photographs Ex.P9:C.D Ex.P10:Scene Observation report Ex.P11:Rough sketch Ex.P12:Inquest report Ex.P13:Seizure report of vehicle. Ex.P14:Post-mortem report Ex.P15:Accident report Ex.P16:Report of PW1 Ex.P17:First Information Report Ex.P18:Alteration memo Ex.P19:Sale agreement Ex.P20:Certified copy of R.C

Material Objects marked

NIL

Sd/- Smt. K.S.K

Principal Assistant Sessions Judge, Ongole

FAC: Assistant Sessions Judge, Markapur // True Copy //

Principal Assistant Sessions Judge, Ongole

FAC: Assistant Sessions Judge, Markapur

1

IN THE COURT OF SENIOR CIVIL JUDGE :: MARKAPUR ::

PRESENT : SMT K. SATHYA KUMARI,

PRINCIPAL SENIOR CIVIL JUDGE, ONGOLE.

FAC SENIOR CIVIL JUDGE, MARKAPUR.

Friday, this the Eleventh day of August, 2023

Original Suit No. 27 of 2022

Between:

SSS Chit Funds Pvt. Ltd., Markapur Branch, Rep. By its Branch Manager K. Praneeth Present Manager Shambhugari Mahesh, S/o. Vijay Singh, aged 27 years, Hindu, Office Address: D.No.7-472, 2nd Floor, Venakta Ramana Studio Line, Opp. Balaji Hospital, Nehru Bazar, Markapur Town and Mandal, Prakasam District. … Plaintiff

Vs.,

1. Muthyala Subba Rami Reddy, S/o. Venkata Subba Reddy, aged 85 years, Hindu, Cultivation, R/o.D.No.4053, Ayyavaripalli Village, Nallaguntla Post, Komarole Mandal, Prakasam District.

2. Boyilla Venkata Lakshmamma, W/o. Sankar Reddy, aged 50 years, Hindu, House Wife, R/o. D.No.2-20, Gadikota Post & Village, Giddalur Mandal, Prakasam District.

… Defendants

This suit is coming on 14.07.2023 for final hearing in the presence of Sri K. Atchi Reddy, Learned Advocate for Plaintiffs and defendants remained exparte; upon perusing the material available on record and having stood over for consideration till this day, this Court delivered the following :-

// J U D G M E N T \\

01. This is a suit filed by the Plaintiff against the defendants to pass a Judgment and decree for the recovery of the suit amount of Rs.36,96,000/- with costs of the suit and for future interest under a mortgage deed by way of preliminary decree.

2

02. The averments of the Plaint, in nutshell, are as follows:

The defendants 1 and 2 had borrowed a sum of Rs. 18,00,000/- from the plaintiff company ie, Siva Sai Sangameswara Chi Funds Pvt. Ltd,

Markapur, under name and style SSS Chit Funds Pvt. Ltd, Markapur on 09.02.2018 at Markapur for their family necessity agreeing to repay the said amount with interest @ 24% P.A on demand and further agreed they would keep the plaint schedule properties as security for the said debt, that they will be in possession and enjoyment of the plaint schedule properties, that they will not alienate schedule properties till the plaintiff's company debt in full discharged and had executed Registered Mortgage Deed on 09.02.2018 itself under Registered Document No. 899/2018 of S.R.O,

Giddalur in favour of the plaintiff company in corporating the said terms.

The defendants 1 and 2 are in joint possession and enjoyment of the said plaint schedule mortgaged property and on 09.02.2018 the defendants together jointly executed Registered mortgage deed in favour of the plaintiff company under Document No.899/2018 by retaining the possession of the said plaint schedule mortgaged property with them and thus the defendants 1 & 2 together executed a registered mortgage deed in favour of the plaintiff company by mortgaging the hypothec and mortgaged the plaint schedule property in favour of the plaintiff company with encumbrances and thus the defendants are jointly and severally liable to discharge the said mortgaged debt incurred by them. The plaint schedule property which is the 1st item is the self acquired property executed by Uriya Pullaiah in favour of 1st defendant dated.21.06.2007 with Doc.No.1691/2007 and another registered executed by Vemireddy Lakshmamma in favour of 1st defendant

dated 23.10.1999 with Doc.No. 1784/1999, both registered at S.R.O.

Giddalur. The said property issued by the Tahsildar, Komarole entitled the name of 1st defendant in Pattadar Pass book bearing Pass book No.113021 and also issued title deed in favour of the 1st defendant. The plaint schedule 3 property which is the 2nd item is the self acquired property executed by

Mukkara Subbamma, Mukkara Pandu Ranga Reddy in favour of 2nd defendant dated 21.07.2011 with Doc.No.4014/2011 and another registered executed by Mukkara Pedda Chenna Reddy, Mukkara Swamy Ranga Reddy,

Mukkara Ramana Reddy in favour of 2nd defendant dated 17.10.2011 with

Doc.No.5497/2011, both registered at S.R.O, Giddalur. The said property issued by the Tahsildar, Komarole entitled the name of 2nd defendant in E.P

Pattadar Pass book bearing Pass book No. 08Q37M004000053 with Patta

No.582 in favour of the 2nd defendant. Inspite of several demands made by the plaintiff company the defendants 1 and 2 did not discharge the said mortgaged debt jointly incurred by them and finally on 09.11.2020 the plaintiff company got issued a registered legal notice to the defendants 1 and 2 demanding for the discharge of the said mortgaged debt with interest and the defendants 1 and 2 duly received the said registered legal notice issued by the plaintiff company advocate and neither replied nor discharge the said mortgaged debt incurred by them. It is submitted that Registered

Mortgage Deed dated.09.02.2018, the defendants 1 and 2 executed

Registered simple mortgage deed with Doc.No.899/2018 in respect an extent of Ac.5-71 cents in Sy.Nos.150/1, 116/1, 121/1, 160/1, 161/1, 163, 105/2D, 106/1A1, 107/1B, 110/14, and 110/15 of land situated Nallaguntla

Gram Panchayat and Nallaguntla village of Komarole Mandal as a collateral security with respective plaint schedule properties item no.1 and 2. The amount due and payable by the defendants 1 and 2 with joint and several liabilities as on 26.06.2022 is Rs. 36,92,400/-. In spite of several notices and reminders issued by the plaintiff company to the defendants 1 and 2 both the defendants did not pay any amount to the plaintiff company towards the suit debt. Hence the plaintiff company is constrained to file this suit to recover the said mortgaged debt amount incurred by the defendants 1 and 2 with interest of the mortgage deed dated.09.02.2018. Hence this suit.

4

3. Defendants are served with the suit summons, but failed to file written statement within the stipulated period of 90 days, hence the defendants are called absent and set exparte.

4. The plaintiff company examined its Branch Manager as PW.1 and

Ex.A.1 to A.3 are marked on behalf of the plaintiff. Heard the counsel for plaintiff.

5. Now the point for determination is :

Whether the plaintiff company is entitled for recovery of the suit amount as prayed for ?

6. POINT : As per the evidence of PW.1 it goes to show that the defendants 1 and 2 have borrowed a sum of Rs.18,00,000/- from their company on 09.02.2018 at Markapur for their family necessities agreeing to repay the same with interest @ 24% p.a., on demand and further agreed they would keep the plaint schedule properties as security for the said debt, that they will be in possession and enjoyment of the plaint schedule properties, that they will not alienate the schedule properties till the discharge of the debt and both the defendants have executed Registered

Mortgage deed, on 09.02.2018 itself under Registered document

No.899/2018 of SRO, Markapur in favour of plaintiff company incorporating the said terms and conditions, which is marked as Ex.A.1 and the defendants 1 and 2 are in joint possession and enjoyment of the said plaint schedule mortgaged property. Subsequently inspite of their requests number of times the defendants 1 and 2 did not repay the Registered mortgage deed debt. Then they got issue legal notice dt: 09.11.2020 to the defendants 1 and 2 and the same is marked as Ex.A.2 by demanding them to discharge the debt covered under Registered Mortgage deed. Having received the same by the defendants 1 and 2 under postal acknowledgment which is marked as Ex.A.3, but the defendants 1 and 2 neither give reply 5 nor paid any amount. It is also evident from the chief affidavit of PW.1 that the defendants 1 and 2 did not choose to pay the amount in spite of demands made by the plaintiff company though they agreed to pay the amount under Ex.A.1. The evidence of PW.1 coupled with Ex.A.1 to A.3 remained unchallenged and as such the plaintiff proved the claim.

Accordingly, the point is answered.

7. In the result, the suit is preliminarily decreed with costs in favour of plaintiffs and against the defendant for an amount of Rs.36,96,000/- with interest at the rate of 12% p.a., from the date of filing of the suit till the date of decree upon the principal amount of Rs.18,00,000/- and thereafter at the rate of 6% p.a., from the date of decree till the date of realization upon the same principal amount. The time of redemption is three months.

Typed to my dictation to the personal Assistant, corrected and

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

Sd/- Smt. K.S.K

Principal Senior Civil Judge, Ongole.

FAC Senior Civil Judge, Markapur.

// APPENDIX OF EVIDENCE // Witnesses Examined For Plaintiff: For Defendants PW1 : S. Mahesh None

Documents Marked

For Plaintiff : Ex.A.1 : Original Registered Mortgage deed dt: 09.02.2018 executed by the defendants 1 and 2 in favour of plaintiff company vide document No. 899/2018 along with 1B adangals and E.Cs. Ex.A.2 : Office copy of lawyer notice dt: 09.11.2020. Ex.A.3 : Postal Acknowledgment duly signed by the D.1 and D.2.

For Defendants : NIL

Sd/- Smt. K.S.K

Principal Senior Civil Judge, Ongole.

FAC Senior Civil Judge, Markapur.

// True Copy //

P.S.C.J, Ongole FAC: S.C.J, Markapur

1S.A.O.P.6/23

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE :: ONGOLE

Present: Smt K.Satyakumari

Prl. Senior Civil Judge, Ongole

Thursday, this the 4th day of April, 2024

S.A.O.P. 6 of 2023

Between :

1.Pathan Tahera, w/o late Asi Babu, aged about 44 years, house wife, r/o D.No. 37-1-160-55 A, Islampeta - 2, Ongole, Prakasam District.

2.Shaik Nageena, w/o Shaik Iqbal, aged about 30 years, r/o D.No. 39-8-34, Gopal nagar, 1st lane, near Putta Chettu, Ongole, Prakasam District.

3.Shaik Fathima, w/o Ateek Ahamad, aged about 28 years, r/o D.No. 46-1-24, Rajarajeswari pet, behind big mosque, Ongole, Prakasam District.

... Petitioners

And

1.Shaik Bibijohn, w/o late Shaik Mahaboob, aged about 69 years, r/o 4th lane, Islampet, Ongole town, Prakasam District.

2.Shaik Ibrahim, s/o late shaik Mahaboob, aged about 48 years, r/o Gujjanagundla, hair company distributor, Guntur, Guntur district.

3.Shaik Halima Bee, aged about 49 years, w/o Shaik Davud, r/o Gopal nagar, 4th lane extension, near Gowthami school, Ongole, Prakasam District.

4.The Branch Manager, City Union Bank, Ongole, Prakasam District.

… Respondents

This petition coming on 3.4.2024 before me for final hearing in the presence of Sri S.V.Rangaiah, Advocate for Petitioners; Respondents remained set exparte and upon perusing the material on record, and having stood over for consideration till this day, this Court delivered the following :- 2S.A.O.P.6/23

O R D E R

1.This is a petition filed by the Petitioners under section 372 of Indian

Succession Act, 1925 praying to issue Succession Certificate in favour of petitioners 1 to 3 each for an amount of Rs.1,46,467.88 ps and in favour of respondents 1 to 3 in respect of the securities and benefits which are lying with the 4th respondent which are shown in the schedule, and for costs.

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

Shaik Mahaboob is the Kartha of the family. Shaik Mahaboob is having two wives. 1st respondent herein is the first wife. 1st wife having one son i.e., 2nd respondent and one daughter i.e., 3rd respondent. 2nd wife of Shaik Mahaboob by name Shaik Fazulun died intestate on 31.7.2018. 2nd wife is having one son by name P.Asi Babu died intestate on 1.5.2017. The 1st petitioner is the wife of P.Asi

Babu. Petitioners 2 and 3 are daughters of 1st petitioner and P.Asi Babu. The kartha of the family Shaik Mahaboob borrowed amount by pledging the property with the 4th respondent herein. Shaik Mahaboob failed to discharge the said amount to the 4th respondent. The 4th respondent auctioned the property mortgaged to the bank. After adjusting the said amount the remaining amount of

Rs.8,78,807.33 ps lying with the bank. The 4th respondent failed to return the amount which is lying with the bank to the petitioners 1 to 3 and respondents 1 to

3. The petitioners 1 to 3 and respondents 1 to 3 are having equal shares in the said amount lying in the bank. The respondents 1 to 3 are not cooperated in getting the amounts of the deceased Shaik Mahaboob. Shaik Mahaboob died intestate on 2.11.2018. 4th respondent required to submit the succession certificate for release of the amounts lying in the bank. The petitioners 1 to 3 are the legal heirs of deceased Shaik Mahaboob and they are entitled to get the 3S.A.O.P.6/23 amounts lying in the bank of the respondent. Hence, the petitioners are constrained to file the petition.

3. The respondents remained set exparte and no objections are received from the public in pursuance of public notice.

4. During the enquiry of the petition, on behalf of the petitioners, the 1st petitioner herself examined as Pw.1 and Ex.P.1 to P.6 got marked.

5.Now the point for consideration is “whether the petitioners are entitled for Succession Certificate as Prayed for?

6.Point :

On Perusal of the evidence of Pw.1, it reveals that Shaik Mahaboob is having two wives i.e., 1st respondent and one Shaik Fazulun. Respondents 2 and 3 are children of 1st respondent. Shaik Mahaboob died intestate on 2.11.2018 as per Ex.P.2. Shaik Fazulun/2nd wife died intestate on 31.7.2018 as per Ex.P.3. 2nd wife i.e., deceased Shaik Fazulun is having one son by name

P.Asi Babu, who died intestate on 1.5.2017 as per Ex.P.4. The 1st petitioner is the wife of P.Asi Babu. Petitioners 2 and 3 are daughters of 1st petitioner and

P.Asi Babu. The kartha of the family Shaik Mahaboob borrowed amount by pledging the property with the 4th respondent herein. Shaik Mahaboob failed to discharge the said amount to the 4th respondent. The 4th respondent auctioned the property mortgaged to the bank. After adjusting the said amount the remaining amount of Rs.8,78,807.33 ps lying with the bank as per Ex.P.1. The 4th respondent failed to return the amount which is lying with the bank to the petitioners 1 to 3 and respondents 1 to 3. The petitioners 1 to 3 and respondents 4S.A.O.P.6/23 1 to 3 are having equal shares in the said amount lying in the bank. The respondents 1 to 3 are not cooperated in getting the amounts of the deceased

Shaik Mahaboob.

7. The respondents remained set exparte. In pursuance of the public notice ordered by this court, no objections were received from the public. Therefore, in view of the above facts and circumstances, the petitioners proved their case and as such, petitioners are entitled for Succession Certificate as prayed for.

Accordingly, this point is answered in favour of petitioners.

8. In the result, the petition is allowed without costs and it is ordered to issue

Succession Certificate in favour of the petitioners 1 to 3 and respondents 1 to 3 for only limited purpose that is to receive the petition schedule amount equally which is lying in the hands of 4th respondent.

Typed to my dictation on the computer by Stenographer, corrected and

pronounced by me in open Court, this the 4th day of April, 2024

Sd/- K.Satyakumari

Prl. Senior Civil Judge,

Ongole

// APPENDIX OF EVIDENCE //

Witnesses Examined

For Petitioners : For Respondents :

Pw.1 : Pathan Tahera- exparte-

Documents Marked

For Petitioners :

Ex. P.1 : Original bank statement regarding the account copy of the deceased Shaik Mahaboob in 4th respondent bank

Ex. P.2 : Original death certificate of the deceased Shaik Mahaboob

Ex.P.3 :Original death certificate of Shaik Fazulun 5S.A.O.P.6/23

Ex.P.4 : Original death certificate of Asi Babu, s/o Sk. Mahaboob

Ex.P.5 : Original family member certificate of Syed Asi Babu

Ex.P.6 : Original family member certificate of Shaik Fuzulun

For Respondents :

NIL

Prl. S.C.J.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE :: MARKAPUR

Present : Smt. K. Satya Kumari,

Principal Senior Civil Judge, Ongole

FAC: Senior Civil Judge, Markapur

Friday, this the Twenty Second day of September, 2023

Original Suit No. 17 of 2023

Kolli Bala Rangaiah, S/o. Yallaiah, aged 54 years, employee,

Prasanthi Nagar, Giddalur, Prakasam District....Plaintiff

Vs

Shaik Munthaj, W/o.Shaik Khasimsab, aged 56 years, employee, Gonapalli Village, Komarole Mandal, Prakasam District; presently working as Community Medical Officer, Primary Health Centre, Kristamsettypalli Village, Giddalur

Mandal, Prakasam District. ...Defendant

This suit coming up before me on 15th day of September, 2023 for hearing in the presence of Sri P. Balaranga Reddy, Advocate for the Plaintiff and the defendant remained exparte and having stood over for consideration, till this day, this court, delivered the following:

// J U D G M E N T //

1.The plaintiff claims for a money decree to realize a sum of Rs.23,53,293/- being the amount payable on the foot of suit promissory note for

Rs.13,60,000/- - together with subsequent interest and costs.

2.The defendant remained exparte.

3.The case of plaintiff, as can be seen from the factual matrix projected in the plaint is that the defendant has borrowed a sum of Rs.13,60,000/- - from him for her needs, while executing in his favour the suit promissory note for Rs.13,60,000/- on 05-04-2020 , promising to repay the debt there under together with interest @ 24% per annum, either to him or his order on demand to the holder in due course. In spite of repeated demands made by him the defendant paid an amount of Rs.50,000/- on 19-03-2023 towards part payment. Later she did not discharge the remaining debt due under 2 the suit promissory note. Therefore, the Plaintiff constrained to file the suit.

4. During the course of proceedings, the plaintiff having been examined as

PW1, got marked on her behalf Exs.A1 and A2.

5. Now the Point that arises for determination is:-

Whether the plaintiff is entitled to recover from the defendant the suit amount?

6.Heard and perused the suit record.

7.POINT: The specific case of plaintiff is that the defendant has borrowed from him a sum of Rs.13,60,000/- to expenses, while executing in his favour the suit promissory note, promising to repay the debt there under together with interest @ 24% per annum, either to him or his order on demand to the holder in due course.

8. The plaintiff, in order to substantiate his contention, has produced the suit promissory note covered by Ex.A1, the contents thereunder do suggest that the defendant has borrowed a sum of Rs.13,60,000/- - from him to her necessities, while executing in his favour the suit promissory note, promising to repay the debt there under together with interest @ 24% per annum, either to him or his order on demand to the holder in due course.

It is the further evidence of PW1 that inspite of repeated demands the defendant made part payment of Rs.50,000/- on 19-03-2023 cover under

Ex.A2. The version and veracity of plaintiff as PW1 that the defendant has borrowed a sum total of Rs.13,60,000/- - on 05-04-2020 from him for her necessities, while executing in his favour the suit promissory note promising to repay the debt there under together with interest @ 24% per annum, either to him or his order on demand to the holder in due course, remained absolute and unchallenged.

3

9.The Plaintiff, on being examined as P.W.1 read in conjunction with the contents of suit instrument and part payment endorsement covered under

Exs.A1 and A2 has successfully established execution of suit instrument.

The evidenced of PW1 clearly establishes that the defendant failed to discharge the debt due under Ex.A1 in spite of repeated demands made by the him, ensuing the plaintiff to recover from the defendant the suit debt together with agreed rate of interest.

10. The point under discussion is answered accordingly.

11. In the result, the suit is decreed with costs for Rs.23,53,293/- (Rupees

Twenty Three Lakhs Fifty Three Thousand Two Hundred and Ninety Three

Only), recoverable from the defendant together with interest @ 12% per annum from the date of filing suit till the date of decree on the principal sum adjudged and thereafter @ 6% per annum till realization.

Typed to my dictation to Stenographer Grade II, corrected and pronounced by me in the open Court, this the 22nd day of September, 2023.

Sd/- Smt. K.S.K

Principal Senior Civil Judge, Ongole

FAC: Senior Civil Judge, Markapur // Appendix of Evidence // Witnesses Examined For Plaintiff: For Defendant : Exparte PW-1 : Kolli Bala Rangaiah Documents Marked For Plaintiff: Ex.A1 : Suit promissory note for Rs.13,60,000/- dt.05-04-2020. Ex.A2 : Part payment endorsement for Rs.50,000/- made on 19-03-2023 on the back side of Ex.A1 For Defendant: NIL.

Sd/- Smt. K.S.K

Principal Senior Civil Judge, Ongole

FAC: Senior Civil Judge, Markapur // True Copy //

P.S.C.J, Ongole FAC: S.C.J, Markapur