Smt. L. Thejovathi

17.04.15 1 OS 188/09

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: AT

MACHILIPATNAM.

Present: Smt L.Thejovathi, Prl.Junior Civil Judge.

FRIDAY, this the 17 th day of APRIL, 2015

O.S. 188/2009

Between:

1. Madireddy Sarojini

2. Abdul Rasheed

3. Smt.Hurunnissa

4. Smt.Haleemunnissa ::: Plaintiffs A N D

1. Yadama Jaganmohanarao (died)

2. Yadama Seetharavamma

3. Yadama Sobhanasamardha

4. Yadama Nagaravi

5. Yadama Anilkumar (defendants 4 and 5 are added as per orders in IA 314/14 dated 17.09.14)

6. Yadama Naganarendra

7. Yadama Nagaramesh

8. Mamidibatlu Saradha (defendants 6 to 8 are added as per orders in IA 919/14 dated 31.10.14) ::: Defendants

This suit came up on 18/02/2015 before me for final hearing in the presence of Sri CBYN.Sastry Advocate for plaintiffs and of Sri M.Srinivas, advocate for D3, D6 to D8 and of Sri K.Mehar Prasad advocate for D4, D5 and D1 died and D2 was set exparte and the matter having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

1. This is a suit filed by the plaintiffs against the defendants 1 to 3 for mandatory injunction, for the removal of construction made by the 3rd defendant and for restoration of passage from north to south starting from 4th plaintiff up to municipal road.

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

The 1st defendant and the 2nd defendant, who are wife and husband 17.04.15 2 OS 188/09 sold the properties to the plaintiffs 2 to 4 under registered sale deed, whereas the 1st plaintiff got the property which was originally purchased by one Intipalli

Venkatasrinivasarao, from the 1st defendant, shown as 'ABCD' in the plaint plan.

The 2nd defendant sold the property to 3rd and 4th plaintiff on 18.06.1985 and the property sold to the 2nd plaintiff by the 1st defendant is on 20.06.1985 i.e. 2 days subsequent to the sale by 2nd defendant, which is shown as 'EFGH' and the property purchased by 3rd plaintiff is shown as 'IJKL' and the property of 4th plaintiff is shown as 'ENOF' and one month after the said transaction by 1st defendant in favour of 2nd plaintiff, 1st defendant sold the property to Intipalli

Venkatasrinivasarao. He in turn sold the same to one Madireddy Subbarao and

Madireddy Ramesh, being minors represented by their mother Sarojini i.e. 1st plaintiff on 17.03.1986 and it was subsequently, gifted to 1st plaintiff by her sons and grand children under a registered gift deed dated 10.01.08. The 2nd and 3rd defendants are the wives of 1st defendant. The 1st defendant out of his love and affection towards his 2nd wife i.e. 3rd defendant executed a gift deed in favour of the 3rd defendant and the 1st and 2nd defendants while executing documents in favour of the plaintiffs left a passage with a width of 7 feet leading from north to south i.e. from the house of Haleemunnissa proceeding towards the passage to the south in between 1st, 2nd, 3rd plaintiffs site and still proceeding further south to the western side of 3rd defendant's site leading to municipal road. The plaintiffs being old age persons, having less financial capacity, the 3rd defendant in active collusion with 1st defendant closed the passage at 'A, I' and raised constructions suddenly. The plaintiffs have no other way to reach the municipal road lying to south of 3rd defendant's site. Though the plaintiffs requested the defendants 1 to 3 for restoration of passage, the 1st defendant prolonged the matter and on 30.06.08 stated that he will not restore the passage and demanded for payment 17.04.15 3 OS 188/09 of additional amount for restoration of passage. The defendants 1 to 3 collusively closed the passage after selling the property to the plaintiffs 1 to 3 and trying to encash the situation from the plaintiffs. The 1st defendant is highly influenced person and he is an ex-councilor and having influence in Machilipatnam town and openly proclaiming that he will not allow the plaintiffs for their ingress and egress to their sites through the passage. Hence the suit.

3. The 1st defendant filed written statement, denying the allegations of the plaint and contending that there is no cause of action for filing the suit and the suit is not maintainable due to misjoinder of cause of actions and suit is barred by limitation and prays to dismiss the suit.

4. The 3rd defendant filed her written statement denying the allegations of the plaint and contending that she is no way concerned with the defendants 1 and 2 and the defendants 1 and 2 colluded with the plaintiffs and fabricated the story and got filed the suit and she purchased the property in the year 1984 and constructed the compound wall as well as building in the year 1985 itself and as per the municipal plan there is no path way on the northern side as alleged by the plaintiffs and the plaintiffs are not the residents of Machavaram and this defendant never sold the property to any of the plaintiffs and previously, she filed a suit in OS 532/06 against the defendants 1 and 2 for permanent injunction and the said suit is still pending on the file of Ist Additional Junior Civil Judge,

Machilipatnam and this defendant has been residing in the schedule property since 1984 onwards and as per the gift deed dated 23.03.1984 there is no path way and though as per the pleadings of the plaintiffs the cause of action has been arisen in the year 2008, they have pleaded in their cause of action para as it arose in June, 2005 and there is no earlier demand from the plaintiffs, prior to the filing of the suit and prays to dismiss the suit.

17.04.15 4 OS 188/09

5. The defendants 4 and 5 reported no written statement and the defendants 6 to 8 did not file any written statement.

6. Basing on the above pleadings the following issues have been framed for trial:-

1. Whether the suit is barred by limitation?

2. Whether plaintiffs are entitled for mandatory injunction as prayed for?

3. To what relief?

7. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and EXs.A1 to A6 are marked. On behalf of the defendants, Dws.1 to 7 were examined and

Ex.B1 and B2 are marked.

8. Heard both sides.

ISSUE No.2:-

9. It is the contention of the plaintiffs 1 to 4 that they purchased their respective properties from D1 and D2 and since then, they have been in possession and enjoyment of their properties and enjoying the disputed passage to go to the main road, situated towards south of their properties. But subsequently, the 3rd defendant in collusion with D1 and D2 closed the passage by constructing a compound wall in the year 2008 and though the plaintiffs requested the 1st defendant for restoration of the passage, he did not heed their request and demanded the plaintiffs for payment of additional amount for restoration of the passage towards north leading to the road on the northern side.

10. On the other hand, it is the contention of the 1st defendant that there is no cause of action for filing the suit and the suit is not maintainable for misjoinder of causes of action and the suit is barred by limitation. Except denying the allegations of the plaint, the 1st defendant did not contend anything in his written statement as to the facts of the case.

17.04.15 5 OS 188/09

11. The 3rd defendant contended that she is no way concerned with the defendants 1 and 2 and the plaintiffs in collusion with the defendants 1 and 2 fabricated the story and filed the suit and in the year 1984 itself she purchased the property and immediately she started construction and only due to personal disputes between herself and the defendants 1 and 2, the defendants 1 and 2 got filed the suit through the plaintiffs.

12. The plaintiffs in order to prove their contentions got examined the 1st plaintiff as Pw.1, 2nd plaintiff as Pw.2, husband of 3rd plaintiff as Pw.3 and the 4th plaintiff as Pw.4 respectively. All the 4 plaintiffs filed their chief affidavits contending the same facts as mentioned in the plaint. Pw.1 got marked Exs.A1 to

A5 the original registered sale deeds dated 20.06.85, 18.06.85, 15.07.85, 17.03.86, 10.01.08 and the registration extracts of sale deed dated 18.06.85 executed in favour of 4th plaintiff respectively.

13. The 1st defendant got himself examined as Dw.1 and filed his chief affidavit wherein, he deposed that he is the absolute owner of the suit schedule property and subsequently, he gifted the properties to his wife, who is the 2nd defendant and later his wife also sold the said properties to the plaintiffs and there is a road to the properties sold to the plaintiffs, to reach the municipal road, leading from north to south with a width of 7 feet and the plaintiffs have been enjoying the said passage since the year 1986 and they are no way concerned with the closure of passage by D3. The 1st defendant got examined third parties by name Arja Venkataratnam, Arja Adiseshu as Dws.2 and 3. They deposed in their chief affidavits that the defendants 1 and 2 sold the properties to plaintiffs 1 to 4 and the plaintiffs have been using the passage towards southern side which is behind the property of 3rd defendant.

14. The 3rd defendant got herself examined as Dw.4 and filed her chief 17.04.15 6 OS 188/09 affidavit contending the same facts as mentioned in her written statement. She also got examined her son by name Naganarendra as Dw.5 and examined third parties by name Suresh and Eswararao as Dws.6 and 7 respectively. The 3rd defendant got marked Ex.B1, the photo, in the cross examination of Dw.2 and also marked Ex.B2 the rough sketch.

15. According to the plaintiffs, the defendants 1 and 2 left the passage to reach the municipal road towards south through the property of D3. But the 3rd defendant contends that the defendants 1 and 2 have no right to provide any passage to the plaintiffs through her property, since, the said property was already gifted to her by D1, prior to the purchase of the properties by the plaintiffs 1 to 4. She further contended that the properties, towards the north of the properties purchased by the plaintiffs also belonged to the defendants 1 and 2 and they can provide passage to the plaintiffs through their own site, to reach the main road situated towards north of their properties.

16. The learned counsel for the plaintiffs argued that in all the sale deeds of the plaintiffs there is mention about the existence of passage and Dw.1 stated that he will not allow the plaintiffs to pass through his property and though a notice was issued to D3 to produce municipal plan, she did not file the plan and so, adverse inference has to be taken. He further argued that the 1st defendant admitted the path way and no reason was assigned to depose against the 3rd defendant, who is his own wife and D1 admitted that the 3rd defendant closed the passage and so, the plaintiffs are entitled for mandatory injunction for removal of said passage.

17. The learned counsel for the defendants argued that the plaintiffs did not file any document to show the passage through the property of D3 and no prior notice was issued to the defendants. He further argued that since the 17.04.15 7 OS 188/09 defendants 1 and 2 sold the property to the plaintiffs subsequent to the gift in favour of D3, they have to provide way to the plaintiffs through their own site, but not through the property of D3 and Pws.1 and 2 also admitted in their cross examination that they did not inform D3 while they were purchasing the property and there is no mention in the plaint plan as to the date, month or year when D3 closed the way. He further argued that though the plaintiffs did not examine any of the neighbours, the 1st defendant examined 2 witnesses as if to prove the case of the plaintiffs, which shows collusion between plaintiff and D1 and D2.

18. As could be seen from the documents i.e. Exs.A1 to A6, Ex.A1 is the original registered sale deed dated 20.06.85, under which the 1st defendant sold the property to the 2nd plaintiff. Exs.A2 and A6 are the original registered sale deeds dated 18.06.85 executed by D2 in favour of 3rd and 4th plaintiffs respectively. Ex.A3 is the original registered sale deed under which the 1st defendant sold the property to one Intipalli Srinivasarao and the said Srinivasarao in turn sold the property under Ex.A4 to the sons of 1st plaintiff, who are minors represented by the 1st plaintiff as guardian. Subsequently, one of the son of the 1st plaintiff died and thus another son, and, the wife and children of the deceased son of the 1st plaintiff executed a gift deed under Ex.A5 in favour of the 1st plaintiff. Exs.A1 and A3 are the original registered sale deeds executed by D1 in favour of 2nd plaintiff and vendor of 1st plaintiff respectively. For other properties and Ex.A1 under which D1 sold the property to the vendor of 1st plaintiff, the western boundary is shown as the property of Bandaru Ramamohanarao. But the said western side property was sold by the 1st defendant to the 2nd plaintiff on 20.06.85 itself under Ex.A1. So, the said boundary in both the documents is not tallying.

19. Exs.A2 and A6 are the sale deeds executed by D2 in favour of 3rd 17.04.15 8 OS 188/09 and 4th plaintiffs respectively on the same day. In Ex.A2 the eastern boundary is shown as 7 feet passage. The southern boundary is shown as the site of

Muniswamy and the northern boundary is shown as the property sold by them to the 4th plaintiff. But in Ex.A6 under which the 2nd defendant sold the property to the 4th plaintiff, which is adjacent to the property sold to the 3rd plaintiff on the same day, the eastern boundary is mentioned as the property of Yadama

Sitaravamma. The southern boundary is shown as 7 feet passage to some extent and the property of 3rd plaintiff to some extent. Western boundary is shown as the compound wall of Yadama Sitaravamma i.e. D2 and the northern boundary is shown as the site of Yadama Nagabhushanam. The boundaries mentioned in Ex.A6 are not at all tallying with the features shown in the plaint plan. They are also not tallying with Ex.A2 under which the 2nd defendant sold the property to the 3rd plaintiff.

20. Pws.1 to 4 admitted in their cross examination that by the date of their purchase, the house of D3 was in existence. Pw.1 stated in her cross examination, that she did not know when the disputed passage was closed.

Admittedly, D3 was present at the time of sale made by D1 and D2 in favour of plaintiffs 1 to 4. Pw.2 stated in her cross examination that after purchase, she saw the property one year ago from the date of his evidence. So, after the purchase he did not even visit the property till the year 2009. Admittedly, there are no talking terms between D1, D2 on one hand and D3 on the other hand, who is the 2nd wife of D1. Dw.1 in his cross examination stated that for all the 4 plots he left the passage of 7 feet through the site of D3 and he gifted the property to D3 through which the said passage was given. But he admitted that there are no cordial relations between him and D3 even prior to the date of suit.

Dw.1 further admitted in his cross examination that he gifted the property to D3 in 17.04.15 9 OS 188/09 the year 1984 and the construction of the house was also started in the year 1984. He further admitted that in 1989 or 1990 D3 constructed the compound wall on all 4 sides. So, when the compound wall was also constructed by D3 for her house in the year 1990 itself, the plaintiffs, saying that, D3 suddenly closed the passage in the year 2008 or just before filing the suit, is not believable and tenable.

21. Dw.1 further stated in his cross examination that he left the passage out of the 15 cents settled in favour of D3, but the same is not mentioned in the settlement deed. Dw.2 admitted in his cross examination that he knows

Narendra, son of D3 very well, he also attended the function on the occasion of birthday of son of Narendra 10 years ago. He also admitted Ex.B1 photo confronted to him, where the wall attaching which he is standing in the photo is the back side wall of house of D3. So, Ex.B1 photo is on the occasion of birthday function of grand son of D3 about 10 years ago, by which time the compound wall was there, which may be in the year 2002.

22. The 3rd defendant as Dw.4, denied the suggestion that he constructed the compound wall just before filing the suit. Nothing could be elicited from the evidence of Dws.4 to7, to disprove the contention of the 3rd defendant that D3 constructed compound wall immediately after the property was gifted to her.

Apart from it, 4th plaintiff as Pw.4 admitted in her cross examination that the house of D1 is situated abutting the site purchased by her and presently, she is using the path way which is in front of the house of D1 and the said passage was in existence by the time of her purchase. She further admitted that neither of the plaintiffs enquired with D3 that there was suit path way. She also admitted that herself and D3 and other plaintiffs never disputed after purchase till today. The said admission of Pw.4 shows that she has been using the passage in front of the 17.04.15 10 OS 188/09 house of D1, but not through the property of D3.

23. Pw.4 further admitted in her cross examination that the dead body of her deceased son was brought to the house through the path way, which she was previously using, which is about 5 years ago and by that time D3's house was already there, in the same position as it is presently. Admittedly, the compound wall was constructed by D3 at present. So, when the property of D3 was in tact even about 5 years ago also, as it is at present, the compound wall should be there about 5 years back also, which is in the year 2006 or so. So, the contentions of the plaintiffs that there is a passage through the property of D3 and they have been using the same to reach the main road to the southern side of their property is proved to be false.

24. Apart from it, by the date the defendants 1 and 2 sold the properties to the plaintiffs 1 to 4, D1 already gifted the property to the 3rd defendant. There are also no talking terms between D1 and D3. When that is so, selling the properties to the plaintiffs, providing passage to them, through the property of D3, that too, without her knowledge and consent is meaningless. Nowhere the plaintiffs or the defendants 1 and 2 stated that they informed the 3rd defendant or obtained her consent for providing any passage to the plaintiffs 1 to 4 through her property. Moreover, even in Exs.A1 to A6, there is no such recital on any of the boundaries, that the passage in between the properties of plaintiffs 1 to 4, leads to the main road towards south of their properties, or through the property of D3, since, already the property was gifted to D3. Except the sale deeds there are no other documents filed by the plaintiffs, to show that they have got passage through the property of D3.

25. As could be seen from the plaint filed by the plaintiffs the passage shown in between the properties of plaintiffs 1 to 4 extended up to the main road 17.04.15 11 OS 188/09 not adjacent to the property of D3, but it is through the property of D3. There is some more site to the further west of the said passage, in the property of D3, even as shown in the plaint plan. But in the sale deed of 3rd plaintiff, i.e. Ex.A2, there is no mention about the property of D3 on the southern boundary. No one will allow the 3rd parties to pass through their site without any understanding or agreement in between them. Here it is not the contention of the plaintiffs that there was any understanding or any agreement in between the plaintiffs and the 3rd defendant about the said passage through the property of D3.

26. Apart from it, it is the defendants 1 and 2, who sold the properties to the plaintiffs 1 to 4. When they are selling the property to the plaintiffs, it is their responsibility to provide passage to the plaintiff's to reach the main road through their site. Here, since the property of D3, with whom the defendants 1 and 2 have no talking terms, is there to the south of the properties of plaintiffs, the defendants 1 and 2 would have shown the passage to the plaintiffs, towards further north of their properties, to reach the main road or the school, since the sites towards north, also belonged to defendants 1 and 2. If they want to provide passage through the property of D3, they would have obtained permission or agreement from the 3rd defendant.

27. Admittedly, there is no understanding or agreement and there is also no recital in any of the sale deeds of the plaintiffs, showing in the passage through the property of D3. So, it cannot be said that the plaintiffs have got passage to reach the main road situated on the south of their properties, through the property of D3. Except the recital that there is 7 feet passage as one of the boundary in Exs.A1 to A6, no recital is there that the said passage extends to the main road towards south or through the property of D3. So, the plaintiffs are not entitled for mandatory injunction for restoration of the passage from west to east, 17.04.15 12 OS 188/09 starting from 4th plaintiff 'M, M-1' up to municipal road on western side as prayed by the plaintiffs. Apart from it, the said relief sought by the plaintiff is also not correct since the said passage claimed by the plaintiff, will not be on western side, but it is on eastern side passing through the site of D3. If it is on the western side, it should be through the sites of D1 and D2. This issue is answered accordingly.

ISSUE No.1:-

28. According to the plaintiffs, the 3rd defendant closed the passage at 'AI' by constructing a compound wall. But nowhere in the plaint, the plaintiffs mentioned the date when the 3rd defendant raised the said construction. But in the cause of action, the plaintiffs mentioned that the 3rd defendant closed the passage about one year back. But there is no such recital in the plaint. Apart from it, as per the admissions of Pws.1 to 4 and Dws.1 and 2, the compound wall was in existence long back, i.e. in the year 1990 as per the evidence of Dw.1, and 2002 as per the admissions of Dw.2. Since, the relief claimed by the plaintiffs is for mandatory injunction they have to file the suit within 3 years from the date of cause of action. But the plaintiffs filed the suit in the year 2009 which is absolutely barred by limitation. This issue is answered accordingly.

ISSUE No.3:-

29. In the result, the suit is dismissed without costs.

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

by me in the open Court, this the 17th day of April, 2015.

PRL.JUNIOR CIVIL JUDGE,

MACHILIPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS:

Pw.1: M.Sarojini Dw.1: Y.Jaganmohanrao 17.04.15 13 OS 188/09

Pw.2: Abdul Rasheed Dw.2: A.Venkataratnam

Pw.3: Jainulladdeen Dw.3: A.Adiseshu

Pw.4: Haleemunnissa Dw.4: Y.Sobhanasamardha

Dw.5: Y.Naganarendra

Dw.6: M.Suresh

Dw.7: P.Eswararao

DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:

Ex.A1: Sale deed in favour of Abdul Rasheed, dated 20.06.1985

Ex.A2: Sale deed in favour of Hurunnissa, dated 10.06.1985

Ex.A3: Sale deed in favour of Intipalli Venkatasrinivasarao, dated 15.07.1985

Ex.A4: Sale deed executed in favour of Madireddy Subbarao and others, dated 17.03.1986

Ex.A5: Gift deed in favour of 1st plaintiff, dated 10.01.2008

Ex.A6: Certified copy of sale deed in favour of Haleemunnissa, dated 18.06.1985

DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:

Ex.B1: 1 photo

Ex.B2: Rough sketch/plan

PRL.JUNIOR CIVIL JUDGE,

MACHILIPATNAM.

05.02.15 1 OS 153/13

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: AT

MACHILIPATNAM.

Present: Smt L.Thejovathi Prl.Junior Civil Judge.

THURSDAY, this the 5th day of FEBRUARY, 2015

OS 153/13

Between:

Rekapalli Pullaiah ::: Plaintiff A N D

Nalluri Venkata Subbarao ::: Defendant

This suit came up on 30.01.2015 before me for final hearing in the presence of Sri YUSVV.Subba Rao, Advocate for plaintiff and of Sri K.Ravi Kiran Kumar advocate for defendant and the matter having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

1.This is a suit filed by the plaintiff against the defendant for recovery of suit amount of Rs.97,800/- basing on the promissory note executed by the defendant in favour of the plaintiff.

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

The defendant borrowed an amount of Rs.60,000/- from the plaintiff on 15.06.10 for the purpose of his business and executed a promissory note in favour of the plaintiff, agreeing to repay the same with compound interest at Rs.2/- p.m., but the defendant did not choose to repay the amount covered by the promissory note inspite of repeated demands made by the plaintiff. Hence the suit.

3. The defendant filed his written statement denying the allegations of the plaint and contending that he shifted his family from 05.02.15 2 OS 153/13

Machilipatnam to Hyderabad about 10 years back and it is highly impossible to execute any promissory note in favour of the plaintiff without any facial acquaintance with the plaintiff and he never borrowed any amount from the plaintiff and never executed any promissory note in favour of the plaintiff and the revenue stamp affixed on the promissory note is not pertains to the year 2010 and the suit promissory note must have been fabricated and impersonated and hence the suit is liable to be dismissed.

4. Basing on the above pleadings the following issues have been framed for trial:-

1. Whether the suit pronote is true and valid?

2. Whether plaintiff is entitled to suit claim?

3. To what relief?

5. The plaintiff got examined himself as P.W.1 and got marked

Exs.A1 to A3 and also examined the scribe and attestor of Ex.A1 as

Pws.2 and 3. The defendant got himself examined as Dw.1 and no exhibit was marked.

6. Heard arguments of both the counsel.

ISSUE Nos.1 and 2:-

7. It is the contention of the plaintiff that the defendant borrowed an amount of Rs.60,000/- from him on 15.06.10 and executed a promissory note in favour of the plaintiff, but inspite of repeated demands made by the plaintiff, the defendant did not choose to pay any amount due under the promissory note.

8. On the other hand, it is the contention of the defendant that he never borrowed any amount from the plaintiff and never executed any promissory note in favour of the plaintiff and he has no 05.02.15 3 OS 153/13 facial acquaintance with the plaintiff and the plaintiff fabricated the suit promissory note.

9. The plaintiff in order to prove his contention got himself examined as Pw.1 and filed his chief affidavit reiterating the same facts as mentioned in the plaint. He further deposed that one

R.Venkateswararao and SLL.Kumar attested the promissory note and one B.Satyanarayana scribed the suit promissory note and after payment of the consideration to the defendant, he signed on the revenue stamp and underneath the revenue stamp. He got marked

Exs.A1 to A3, the suit promissory note, office copy of legal notice and unserved notice. The plaintiff also got examined one of the attestor and scribe of Ex.A1 as Pws.2 and 3. The evidence of Pws.2 and 3 also supports the version of the plaintiff that the defendant borrowed an amount of Rs.60,000/- from the plaintiff and executed Ex.A1 promissory note in favour of the plaintiff.

10. Nothing could be elicited from the cross examination of

Pws.2 and 3 to disprove their contention. In the cross examination of

Pw.1, it was suggested that the defendant was not in Machilipatnam on the date of Ex.A1 and the defendant went and settled at Hyderabad about 10 years back. Pw.1 also denied the suggestion that he had no facial acquaintance with the defendant and the signature on the pronote does not belong to the defendant and he created the promissory note by forging the signature of the defendant with the help of attestors and scribe.

11. The defendant on his behalf got examined himself as Dw.1 and filed his chief affidavit contending the same facts as mentioned in his written statement. The defendant in his cross examination 05.02.15 4 OS 153/13 admitted that he received summons from the court along with xerox copy of promissory note.

12. As could be seen from the summons sent through court there is an endorsement that the addressee is not residing in the said address. But the summons sent through RP to the same address was received by one N.Rajyalakshmi for the defendant. The defendant admitted that he received the summons from the court. The summons sent through court which was received, by the defendant, contains the address of the defendant in Machilipatnam, which is mentioned in the office copy of legal notice as well as the plaint. The same address is mentioned in the promissory note, but without door number. It shows that the contention of the defendant that he left for Hyderabad and settled at Hyderabad at about 10 years is not correct. It is also not his contention that his family members are residing in the same house, but he alone left for Hyderabad.

13. The contention of the defendant is that he has no facial acquaintance with the plaintiff in order to borrow any amount from him and the plaintiff created Ex.A1 by forging his signature. When the plaintiff has no facial acquaintance at all with the defendant, there is no possibility for the plaintiff, to have the signatures of the defendant with him or atleast to have any knowledge as to the address and other particulars of the defendant to create the promissory note. It is also not the contention of the defendant that he got any acquaintance with the attestors or scribe of Ex.A1 to say that the plaintiff created Ex.A1 with the help of attestors and scribe. So, the contention of the defendant that the plaintiff created Ex.A1 is not at all believable.

14. The evidence of Pw.1 is also supported by the evidence 05.02.15 5 OS 153/13 of Pws.2 and 3, one of the attestors and scribe of Ex.A1, who deposed that the defendant borrowed an amount of Rs.60,000/- from the plaintiff and executed Ex.A1 in favour of the plaintiff. The plaintiff by his own evidence and by the evidence of Pws.2 and 3 and by marking

Ex.A1 proved the execution of Ex.A1 by the defendant. But the defendant though contended that the signature on Ex.A1 does not belong to him and the plaintiff created Ex.A1 by forging his signature, did not adduce any evidence in order to prove his contention, except his oral evidence.

15. As could be seen from Ex.A1, the promissory note and the vakalat and the written statement of Dw.1 which contains the admitted signatures of the defendant, the signatures on the promissory note and the signatures of the defendant on his vakalat and written statement are similar and identical. So, the contention of the defendant that the plaintiff created Ex.A1 by forging his signature is not tenable.

16. The evidence of Pw.1 coupled with the evidence of Pws.2 and 3 and the documents i.e. Exs.A1 to A3 clearly shows that the defendant borrowed an amount of Rs.60,000/- from the plaintiff and executed Ex.A1, but failed to discharge the amount due under the said promissory note. Hence the plaintiff is entitled to recover the suit amount from the defendant as prayed by him. These 2 issues are answered accordingly.

ISSUE No.3:

17. In the result, the suit is decreed with costs against the defendant for a sum of Rs.97,800/- (Rupees ninety seven thousand eight hundred only) with interest at the rate of 12% p.a. from the date of suit till the date of decree and thereafter at 6% p.a. from the date 05.02.15 6 OS 153/13 of decree till the date of realization on the principal amount of

Rs.60,000/- (Rupees sixty Thousand only).

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

pronounced by me in the open Court, this the 5th day of February, 2015.

PRL.JUNIOR CIVIL JUDGE,

MACHILIPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF FOR DEFENDANT

Pw.1: R.Pullaiah Dw.1: N.Venkatasubbarao

Pw.2: B.Satyanarayana

Pw.3: SLL.Kumar

DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:

Ex.A1: Suit promissory note executed by defendant in favour of plaintiff, dated 15.06.2010

Ex.A2: Office copy of legal notice got issued by the plaintiff, dated 04.07.2012

Ex.A3: Unserved notice

DOCUMENTS MARKED ON BEHALF OF DEFENDANT: NIL

PRL.JUNIOR CIVIL JUDGE,

MACHILIPATNAM.

In the Court of :Principal Junior Civil Judge, Machilipatnam

Case No. :OS/0000250/2012 Maragani Ramanjamma Vs K Balasubrahmanyam

Date  : 19-01-2015

Business: In view of the orders of the Honourable District Court, Krishna in Transfer O.P.No.84/2013, the office is directed to send the entire record to the Additional Senior Civil Judge Court, Machilipatnam after indexing the same. Nature of Disposal: TRANSFERRED Disposal Date: 19-01-2015

Principal Junior Civil Judge, Machilipatnam

In the Court of :Principal Junior Civil Judge, Machilipatnam

Case No. :OS/0000245/2012 K Uma Vs V Durga

Date  : 22-08-2014

Business: Plaintiff called absent even today. No representation till 1.20 p.m. Hence, the suit is dismissed for default. Nature of Disposal: DISMISSED FOR DEFAULT Disposal Date: 22-08-2014

Principal Junior Civil Judge, Machilipatnam

In the Court of :Principal Junior Civil Judge, Machilipatnam

Case No. :EP/0000016/2015 Thota Pothayya Vs Kothwal Afzal Ali

Date  : 08-05-2015

Business: J.Dr. called absent. No representation. Set exparte. Attachment made absolute. E.P. is closed. Nature of Disposal: CLOSED Disposal Date: 08-05-2015

Principal Junior Civil Judge, Machilipatnam