SMT M. Anuradha

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IN THE COURT OF PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) ::

RAJAMAHENDRAVARAM

Present : Smt. M. Anuradha

Principal Civil Judge (Senior Division), Rajamahendravaram.

Monday, the 14th day of October, 2024.

A.S. No.101/2018 and A.S.No.102/2018

Parties in A.S.No.101/2018:

Between:

Talasila Subbalakshmi, Wife of Venkata Nageswara Rao @Srinivas, aged 50 years, House wife, Venkatanagaram, Rajamahendravaram JCJC.

… Appellant/Plaintiff.

And

Khandavilli Suryakantham, Wife of Anjaneyulu, aged 65 years, House wife,

D.No.17-13-1, Krishnanagar, Sitampeta, Rajamahendravaram,

Rajamahendravaram JCJC.

… Respondent/Defendant.

On appeal against the Common Judgment and decree passed by I

Additional Junior Civil Judge’s Court, Rajamahendravaram dated

21.02.2018 in O.S.No.608/2008.

O.S.No.608/2008

Between:

Talasila Subbalakshmi. … Plaintiff.

And:

Khandavilli Suryakantham. … Defendant.

Parties in A.S.No.102/2018:

Between:

Talasila Subbalakshmi, Wife of Venkata Nageswara Rao @Srinivas, aged 50 years, House wife, Venkatanagaram, Rajamahendravaram JCJC.

… Appellant/Defendant.

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And

Khandavilli Suryakantham, Wife of Anjaneyulu, aged 65 years, House wife, D.No.17-13-1, Krishnanagar, Sitampeta, Rajamahendravaram, Rajamahendravaram JCJC. … Respondent/Defendant.

On appeal against the Common Judgment and decree passed by I

Additional Junior Civil Judge’s Court, Rajamahendravaram dated

21.02.2018 in O.S.No.109/2008.

O.S.No.109/2008

Between:

Khandavilli Suryakantham. … Plaintiff.

And:

Talasila Subbalakshmi. … Defendant.

This appeal is coming on 18.09.2024 for final hearing upon perusing the grounds of appeal, judgment and decree of the trial court and other connected papers on record and of Sri. K. Bharani Kumar, Advocate for Appellant, Sri. G.S.S. Murali Mohan, Advocate for Respondent in both A.S.No.101/2018 and

A.S.No.102/2018 and the matter having stood over for consideration till this

day this court delivered the following:

C O M M O N J U D G M E N T

1. Originally, this is an appeal made over to the court of Hon’ble X

Additional District Judge, Rajamahendravaram. Later, the same was

transferred to this court for disposal as per the proceedings of Hon’ble

Principal District Judge, E.G. District, Rajamahendravaram in Dis.No.125

dated 04.01.2024.

2. Appellant/Plaintiff filed appeal in A.S.No.101/2018 aggrieved by the decree and judgment in O.S.No.608/2008 on 21.02.2018 delivered by the court of learned I Additional Junior Civil Judge, Rajamahendravaram.

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Appellant/Defendant filed appeal in A.S.No.102/2018 aggrieved by the decree and judgment in O.S.No.109/2008 on 21.02.2018 delivered by the court of learned I Additional Junior Civil Judge, Rajamahendravaram.

3. The Grounds of appeal in A.S.No.101/2018 reads as follows:

 It is averred that the trial court ought not to have dismissed

O.S.No.608/2008 and the trial court went wrong in dismissing the

same;  that the trial court ought to have found that Plaintiff proved his case of Defendant’s encroachment of Plaint schedule property;  Appellant further pleads that the trial court lost sight of an important aspect in the case viz., that the boundary line between S.No.250/4A and S.No.250/4B would be the most significant proof of the case of Plaintiff;  Appellant further pleads that the trial court failed to properly appreciate the report of Advocate Commissioner, that the comments made by trial court over the report of Advocate Commissioner are not correct and they are liable to be ignored;  that the trial court ought to have totally accepted the report of Advocate Commissioner;  Appellant further pleads that Advocate Commissioner with the help of Mandal Surveyor rightly fixed the boundary between S.No.250/4A and S.No.250/4B, that it is admitted case of Defendant that her property is only in S.No.250/4B but not in S.No.250/4A, that the Commissioner after having fixed the boundary between two Survey numbers found that XYZ property of an extent of AC 0.03 cents shown in Green Colour is the Property which is part of S.No.250/4A, that the Commissioner also identified that an extent of AC 0.02 cents out of the same which is marked as XYY1 is in possession of the Defendant and rest of AC 0.01 cents of Property is covered by the road encroachment, that under such circumstances, the Judgment of trial court as though the report of Advocate Commissioner is not clear and categorical in that respect is not correct and against the contents of the report;  that the trial court failed to give any other reason to discredit the report of Advocate commissioner, that the trial court 4 unnecessarily gave credence to the total area of the Property mentioned in Ex.A1, that the trial court ought to have seen that the Commissioner did not conclude about the encroachment on the basis of the area mentioned in Ex.A1, but on the other hand he came to such conclusion on the basis of fixation of boundary in between S.Nos.250/4A and 250/4B;  that the trial court failed to consider the fact that Defendant was not examined as witness and there is no proper explanation for non-examination of the Defendant and hence, the trial court ought to have drawn adverse inference against Defendant;  that the trial court wrongly made a comment about evidence of P.W.2, more particularly, about when Plaintiff came to know of the encroachment made by Defendant, that the trial court failed to see that the date of encroachment is of no legal consequence since possession should follow title as per the judgments of the

Hon’ble Supreme court;

Thereby, Appellant in A.S.No.101/2018 prays to set aside the decree and judgment in O.S.No.608/2008 on 21.02.2018 delivered by the court of learned I Additional Junior Civil Judge, Rajamahendravaram.

4. The Grounds of appeal in A.S.No.102/2018 reads as follows:

 It is averred that the trial court erred in decreeing the suit in

O.S.No.109/2008 and the trial court ought to have dismissed the

same;  that the trial court ought to have placed burden on the Plaintiff to establish her case that she is in lawful possession of the extent covered by her sale deed and that she is not in possession of any part of the land in S.No.250/4A;  Appellant further pleads that the trial court ought to have seen that Plaintiff has not come to this court with clean hands, that the trial court failed to see that the Advocate Commissioner’s report is adverse to the case of the Plaintiff;

Thereby, Appellant in A.S.No.102/2018 prays to set aside the decree and judgment in O.S.No.109/2008 on 21.02.2018 delivered by the court of learned I Additional Junior Civil Judge, Rajamahendravaram.

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5. The Appellant in A.S.No.101/2018 is the Plaintiff in

O.S.No.608/2008 whereas Respondent in A.S.No.101/2018 is the Defendant

in O.S.No.608/2008, Appellant in A.S.No.102/2018 is the Defendant in

O.S.No.109/2008 whereas Respondent in A.S.No.102/2018 is the Plaintiff in

O.S.No.109/2008. It is appropriate to refer the parties herein with their original

status in trial court for better understanding and to avoid confusion if any.

6. Plaintiff/Talasila Subbalakshmi filed suit in O.S.No.608/2008 for recovery of Possession of BCC1 shown in the Plaint plan and for grant of profts from the date of the suit till delivery of Possession. Plaintiff/Khandavilli

Suryakantam filed suit in O.S.No.109/2008 for Permanent Injunction restraining Defendant, her men, agents etc., from ever interfering with the

Plaintiff’s peaceful possession and enjoyment of the Plaint schedule property.

The both suits in O.S.No.608/2008 and O.S.No.109/2008 are clubbed together wherein evidence is led in O.S.No.608/2008 before the trial court.

7. The brief facts of the Plaint in O.S.No.608/2008 reads as follows:

It is averred that Plaintiff/Smt. T. Subbalakshmi filed suit for recovery of Possession of suit schedule property shown as BCC1 in Plaint plan from Khandavilli Suryakantam (Defendant) and for grant of profits from the date of suit till date of delivery of Possession. Plaintiff pleads that she is the owner of ABCD area shown in Plaint sketch by virtue of Registered Gift

Deed dated 10.06.2004, that the Defendant claims to have owned a vacant site to the east of the said property, that Defendant claims property in

S.No.250/4B of Katheru Village whereas Property shown in ABCD is in

S.No.250/4A and recently, Defendant encroached AC 0.02 cents of Plaintiff’s property as described in Plaint sketch depicted as BCC1, that Defendant filed

O.S.No.109/2008 as if she is owner of Property including BCC1 in order to

perpetuate the mischief, that since the Defendant is in unlawful possession of 6 schedule property. Thereby, Plaintiff filed the suit in O.S.No.608/2008 for recovery of Possession of the same.

8. On receipt of suit summons, Defendant filed Written

Statement reads as follows:

a. Defendant denied all the averments of Plaint and contended that she along with one M.V. Venkata Sreenivas purchased Plot

No.4 of an extent of 720 sq. yards in the layout made in respect of the land covered by S.No.250/4 of Katheru from one D.Venkateswara Rao and his son @Rs.16/- per sq. yard as per Registered Sale Deed dated 22.10.1983 and were in possession of the said extent since the date of said sale deed, that earlier it was in possession of the predecessor-in title of the Defendant. It is averred that while in possession and enjoyment of the extent of 720 sq. yards as absolute owners, Defendant and Sreenivas sold away northern 360 sq.

yards under Registered Sale Deed dated 25.02.1986 to one D. Padmavathi, and continued in possession of the remaining extent of 360 sq. yards, while so, the said Sreenivas relinquished his undivided ½ share in the extent of 360 sq. yards in favour of Defendant as per Registered Relinquishment Deed

dated 15.09.2001 and the said Padmavathi who purchased extent of northern

360 sq. yards, sold the same to Defendant as per Registered Sale Deed dated 03.08.2002 and delivered possession to Defendant, that since then,

Defendant is in possession and enjoyment of 720 sq. yards covered by Plot

No.4 in her own title as an absolute owner. It is further averred that seasonal crops like Vegetables and tobacco are being grown in the extent of 720 sq.

yards since time of purchase of the same under Sale deed dated 22.10.1983 and even while Padmavathi was the owner of northern extent of 720 sq. yards and one Gangadharam, has been looking after the extent of 720 sq. yards since the year 1983 on behalf of Defendant and when Padmavathi was owner of 720 sq. yards on her behalf the extent of 360 sq. yards and on behalf of

Defendant, the extent of 360 sq. yards.

7 b. It is averred that schedule property forms part of the site belonging to Defendant, even by the time of purchase of Plot No.4 by

Defendant and another in the year 1983, there is an earthen bund with a kattava thereon, which is situated in Western boundary of 720 sq. yards, that the Plaintiff along with her henchmen attempted to remove the said kattava and burn the same so as to highhandedly encroach into the site of Defendant, but the said attempt was resisted in time by the Defendant and apprehending that the Plaintiff would pursue her attempts and carry out the illegal object of trespassing into the site, Defendant filed suit in O.S.No.109/2008 and that as a counter blast to suit in O.S.No.109/2008 on the next day of filing of this suit,

Plaintiff’s men burnt a part of kattava referred to above, that an extent of AC 0.02 cents is part and parcel of Property belonging to Defendant and the question of any encroachment does not arise and the alleged encroachment is only invented by the Plaintiff to grab the same. Thereby, Defendant prays to dismiss the suit.

9. Basing on the above pleadings, the trial court has settled the following issues in O.S.No.608/2008 for trial:

1. Whether the Plaintiff is entitled to decree of recovery of Possession of the Plaint schedule property and for future profits of the schedule property as sought in the Plaint ?

2. To what relief ?

10. The brief facts of the Plaint in O.S.No.109/2008 reads as follows:

a. It is averred that Plaintiff/Khandavilli Suryakantham filed suit for Permanent Injunction restraining Defendant, her agents, henchmen etc., from ever interfering with the Plaintiff’s peaceful possession and enjoyment of Plaint schedule property, that Plaint schedule property was purchased by Plaintiff and one M.V. Srinivas as per Registered Sale Deed

dated 22.10.1983 executed by one Sri. Dasari Venkateswara Rao for 720 sq.

8 yards, that said M.V. Srinivas and Plaintiff sold away ½ of the joint share to

Smt. D. Padmavathi as per the Registered Sale deed dated 25.02.1986 for 360 sq. yards out of 720 sq. yards, that subsequently M. Srinivas relinquished his joint half share to Plaintiff as per Registered Relinquishment deed dated 15.09.2001 for 180 sq. yards out of 360 sq. yards. It is further averred that D.

Padmavathi again resold away her 360 sq. yards to Plaintiff as per Registered sale deed dated 03.08.2002, that Plaintiff is in peaceful possession and enjoyment of Plaint schedule property, that the entire plaint schedule property of 720 sq. yards has been looking after by one Somu Gangadharam under the instructions of Plaintiff M.V.Srinivas and D. Padmavathi and now and then.

b. It is further averred that there is boundary line (kattava) as shown in red marked A-B line as shown in Plaint plan even prior to purchase of Plaint schedule property i.e., from 22.10.1983 by Plaintiff and M.V. Srinivas, that Defendant who is resident of western side of Plaint schedule property and her agents and henchmen etc., are trying to interfere since week days from the date of suit, by removing kattava high handedly and by burning the kattava shown in Red marked A-B portion in the plaint plan, with intention to encroach the Plaint schedule property with the hectic efforts and with the ulterior motive and the men of Plaintiff, that Plaintiff has been residing in

Rajamahendravaram i.e., far away from Plaint schedule property and

Defendant is residing in adjacent of Plaint schedule property and Plaintiff is unable to protect lawful right hold ship over Plaint schedule property and she will be put to great loss. Thereby, Plaintiff filed the suit for Permanent

Injunction restraining Defendant, her agents, henchmen etc., from ever interfering with the Plaintiff’s peaceful possession and enjoyment of Plaint schedule property.

11. On receipt of suit summons, Defendant filed Written

Statement reads as follows:

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Defendant denied all the averments of Plaint and contended that she owns land in S.No.250/4A to the West of Plaint schedule property whereas, property claimed by Plaintiff is in separate and distinct survey number as S.No.250/4B, that in the Plait schedule, Plaintiff wrongly mentioned as though the schedule property is in S.No.250/4A, that Plaintiff recently encroached an extent of AC 0.02 cents of Defendant’s site and annexed the same to her property, that similarly Government while forming a road on the southern side encroached an extent of AC 0.04 cents in the Defendant’s property and that Defendant is taking separate action against Plaintiff and

Government by filing separate suits for recovery of Possession of the respective properties encroached by them, that Plaintiff filed present suit in order to perpetuate the mischief committed by Plaintiff as though she is the rightful owner of AC 0.02 cents of Properties belonging to Defendant.

Thereby, Defendant prays to dismiss the suit.

12. Basing on the above pleadings, the trial court has settled the following issues in O.S.No.109/2008 for trial:

1. Whether the Plaintiff is entitled to decree of Prohibitory

Permanent Injunction as sought in the Plaint ?

2. To what relief ?

13. Since both O.S.No.608/2008 and O.S.No.109/2008 are clubbed together and evidence is let in O.S.No.608/2008 for convenience and clear understanding, the parties are arrayed as in O.S.No.608/2008. In order to prove the respective contentions, Plaintiff (in O.S.No.608/2008) herself filed

Chief Affidavit and the same is eschewed and husband of P.W.1 examined as

P.W.2 and Ex.A1 and Ex.A2 are marked on her behalf. D.W.1 and D.W.2 are examined on behalf of Defendant. Ex.B1 to Ex.B14 are marked on her behalf.

14. Upon going through impugned decree and judgment dated 21.02.2018 in O.S.No.608/2008 clubbed with O.S.No.109/2008, it is learnt that the trial court has dismissed the suit in O.S.No.608/2008 with costs and 10 decreed the suit in O.S.No.109/2008 with costs granting permanent injunction in favour of Plaintiff restraining the Defendant, her men, agents from interfering with the Plaintiff’s peaceful possession and enjoyment over the schedule property in O.S.No.109/2008. Aggrieved by the said judgment and decree, Appellant/Talasila Subbalakshmi preferred appeals in

A.S.No.101/2018 and A.S.No.102/2018.

15. The learned counsel for Appellant filed Written Arguments in both

Appeal Suits in A.S.No.101/2018 and A.S.No.102/2018. On perusal, the written arguments submitted by Appellant are nothing but replica of the grounds of Appeal.

16. Heard the learned counsel for Respondent.

17. The following points are formulated for determination of this appeal suit :

1. Whether the Plaintiff in O.S.No.608/2008 is entitled to decree of recovery of Possession of Plaint schedule property and for future profits of the schedule property against Defendant therein ?

2. Whether the Plaintiff in O.S.No.109/2008 is in possession and enjoyment of the Plaint schedule property as on the date of filing of the suit ?

3. Whether the Plaintiff in O.S.No.109/2008 is entitled for the relief of Permanent Injunction against the Defendant therein ?

4. Whether the impugned Common Judgment dated 21.02.2018 in

O.S.No.608/2008 and O.S.No.109/2008 of the Trial Court, is

sustainable either factually or legally ?

5. To what relief ?

18. Perused the pleadings and evidence let in by both parties before trial court. Parties are referred herein as arrayed in the suit in

O.S.No.608/2008.

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POINT No.1 to 3:

19. As seen from the trial court record, both the suits in

O.S.No.608/2008 and O.S.No.109/2008 were clubbed and common trial was

conducted in O.S.No.608/2008. Plaintiff in O.S.No.608/2008 filed her chief affidavit as P.W.1 in lieu of her chief examination. However, at later stage, the

Chief Examination affidavit of P.W.1 was eschewed by the trial court. The husband of Plaintiff in O.S.No.608/2008 is examined as P.W.2 and the True copy of Registered Gift deed dated 10.06.2004 and True copy of Pattadhar

Passbook are marked as Ex.A1 and Ex.A2. On the other hand, daughter of

Defendant is examined as D.W.1 and one third party is examined as D.W.2.

Defendant got marked Ex.B1 to Ex.B14.

20. Plaintiff’s contention is that she is the owner of ABCD Plaint

Sketch marked property situated in S.No.250/4A. Plaintiff claims that

Defendant encroached AC 0.02 cents of her property shown as BCCI in the

Plaint sketch. Thereby, Plaintiff filed suit in O.S.No.608/2008 against

Defendant for recovery of Possession of BCCI Plaint sketch marked property.

On the other hand, the plea of Defendant is that she got title over the Plaint schedule property by virtue of Ex.B1, Ex.B4 and Ex.B5 documents, that she has been in possession and enjoyment of the schedule property, that Plaintiff is trying in interfere with her possession and enjoyment and thereby,

Defendant filed suit in O.S.No.109/2008 for grant of Permanent Injunction against the Plaintiff herein. Defendants specifically plead that an extent of AC 0.02 cents is part and parcel of property covered under the documents filed by her under Ex.B1 to Ex.B5.

21. As Plaintiff claims for recovery of Plaint sketch BCCI marked property basing on her title, it is for the Plaintiff to prove that she was in lawful possession of BCCI Plaint sketch marked property prior to filing of the suit and she was dispossessed from her property and thereby, she is entitled to recover such possession. The husband of Plaintiff in his evidence as P.W.2 12 reiterated Plaint averments. Plaint pleadings and the evidence of P.W.2 is that

Plaintiff became absolute owner of ABCD Plaint sketch marked property by virtue of Registered Gift deed dated 10.06.2004. In this regard, Plaintiff filed

Ex.A1/Certified copy of Registered Gift Deed dated 10.06.2004 and

Ex.A2/Certified copy of Pattadhar Passbook stands in the name of Plaintiff.

On perusal, the recitals of Ex.A1 discloses that the donor got property to an extent of AC 1.51 ½ cents in R.S.No.250/4A and executed Gift Deed to an extent of AC 1.53 cents. P.W.2 in the cross-examination admitted the discrepancy in the recitals of Ex.A1 with regard to the extent of AC 1.51 ½ cents got by the donors on Partition and gifted an extent of AC 1.53 cents which is in their possession. Thus, the recitals of Ex.A1 in respect of the extent gifted to the Donee is ambiguous. The schedule of Ex.A1 discloses that

Donors have property to an extent of AC 1.51 ½ cents in R.S.No.250/4A but they have gifted to an extent of AC 1.53 cents to Donee. Ex.A1 is silent as to how the Donors gifted the excess AC 1 ½ cents in R.S.No.250/4A to the

Donee/Plaintiff herein. Though filed Ex.A2, being Pattadhar Passbook, is issued in pursuance of the Gift deed under the original of Ex.A1. Thus, there is ambiguity in Ex.A1/Gift deed in respect of title and possession of the Plaintiff’s

Donors to an extent of AC 1.53 cents or whether to an extent of AC 1.51 1/2 cents.

22. Plaintiff claims that Defendant encroached AC 0.02 cents shown as BCCI in Plaint sketch. On perusal, admittedly neither the Plaintiff nor her husband has measured the property covered under Ex.A1 at any point of time.

P.W.2 admits that till filing of the suit in O.S.No.109/2008 by the Defendant herein for grant of Permanent Injunction, they have no knowledge about the encroachment by the Defendant into AC 0.02 cents of their property. Though

Plaintiff claims that Defendant encroached BCCI Plaint sketch marked portion of her property, Pleadings are silent in respect of the date, month and year on which Defendant encroached the disputed portion. P.W.2 in his cross- examination also pleaded ignorance about the date on which Defendant 13 encroached into the disputed portion. Thus, from the evidence of P.W.2 and from the document under Ex.A1, Plaintiff could not establish that she was in lawful possession over BCCI Plaint sketch marked portion prior to filing of the suit and Defendant encroached into disputed portion.

23. On the other hand, Defendant claims that it is the Plaintiff who is trying to encroach into her property and thereby, at first, she knocked the doors of the court for grant of discretionary relief of Permanent Injunction. In proof of his contention, the daughter of Defendant is examined D.W.1. D.W.1 reiterated the contents of plaint in O.S.No.109/2008 in her chief affidavit. The evidence of D.W.1 is that her mother along with one Mavuri Veera Venkata

Srinivas jointly purchased property under Registered Sale deed executed by one G. Venkateswar Rao. In proof the said oral testimony, Defendant filed

Ex.B1/Original Registered Deed dated 22.10.1983. Defendant also filed

Ex.B3/Duplicate copy of Ex.B1 Sale Deed dated 25.10.1983. The recitals of

Ex.B1 and Ex.B3 disclose that Defendant and one Mavuri Veera Venkata

Srinivas jointly purchased the property in S.No.250/4 in a layout in plot No.4 to an extent of 720 sq. yards. The boundaries of Ex.B1 depict a road on eastern and southern side and western side is shown as Property in S.No.250/4A and northern side is Plot No.3.

24. It is pertinent to mention that P.W.2 in his cross-examination admitted his knowledge about Ex.B1 sale deed. Furthermore, the evidence of

D.W.1 is that out of the property covered under Ex.B1, Defendant and Mavuri

Veera Venkata Srinivas sold away half of the property to one Smt. D.

Padmavathi. With regard to Ex.B2 transaction, P.W.2 pleaded ignorance.

Furthermore, D.W.1 testified that the co-owner of Ex.B1 relinquished his undivided half share in the property covered under Ex.B1 in favour of the

Defendant. In proof of the same, D.W.1 filed Ex.B4/Registered

Relinquishment deed dated 15.09.2001. Furthermore, D.W.1 testifies that the vendee under Ex.B2/Sale Deed has conveyed the property in favour of her mother i.e., Defendant under Registered Sale deed. In proof of the same, 14

D.W.1 filed Ex.B5/Registered Sale deed dated 03.08.2002. With regard to the transactions under Ex.B4 and Ex.B5, P.W.2 pleaded ignorance. On culmination of the transactions under Ex.B1 to Ex.B5, it is understood that the

Defendant got title to an extent of 720 sq. yards in Plot No.4 in the layout in respect of S.No.250/4. The evidence of D.W.1 is that land in S.No.250/4 is subdivided as 250/4A and 250/4B, that Plaint schedule property is part and parcel of the property covered under Ex.B1, that there is earthen bund with

Kattava (Farm land edge lane) therein since 1983, that the Plaintiff is having property towards west beyond kattava. The evidence of D.W.1 is that Plaintiff made attempts to remove kattava and burnt the kattava high handedly and thereby, her mother filed suit in O.S.No.109/2008 for grant of Permanent

Injunction.

25. In proof of existence of kattava as boundary towards west of her mother’s property, D.W.1 filed Photographs and CD and they are marked as

Ex.B6 to Ex.B9 and Ex.B11 to Ex.B13/Three Photographs and Ex.B10 and

Ex.B14/Corresponding 2 C.Ds. On perusal, the three photographs with corresponding CD filed under Ex.B11 to Ex.B14 disclose existence of kattava in between the two lands and further Ex.B6 to Ex.B9/Photographs discloses burnt marks along with line of cement poles. Though P.W.2 in his cross- examination denied removal of trees on the kattava and the poles in between their lands, at later point of time, P.W.2 admits that he cut the trees on the northern kattava and burnt them. Furthermore, Defendant has examined one of the neighbor land owner as D.W.2 by name Somu Gangadharam @Gangadhara Rao. D.W.2 testified that he has been looking after the schedule property subsequent to the date of Ex.B1, that there is kattava in between the properties of Plaintiff and Defendant, that the Plaintiff is trying to interfere with Defendant’s possession and enjoyment over the Plaint schedule property. Though P.W.2 denied the existence of any boundary line (kattava), the admissions brought in his cross-examination support Defendant’s plea about existing kattava(boundary line) in between properties of the Plaintiff and 15

Defendant. Furthermore, the oral testimonies of P.W.1 and P.W.2 and the photographs with Corresponding CD marked under Ex.B6 to Ex.B14 and admissions of P.W.2 support Defendant’s plea that Plaintiff is trying to interfere with Defendant’s possession and enjoyment over the schedule property.

26. As seen from the trial court record, an Advocate Commissioner was appointed as per the orders in I.A.No.682/2015 dated 28.03.2017 by entrusting the warrant for localization of the schedule property with specific direction to note down how the disputed land is localized i.e., the Survey stone is identified and measure the linear measurements of the disputed land with reference to the field measurement sketch of the land in Survey No.250 and with the assistance of Mandal Surveyor. Accordingly, the learned Advocate

Commissioner was entrusted with the warrant and executed the same on 28.10.2017 and filed report. Though not examined, the Advocate

Commissioner’s Report dated 14.11.2017 forms part of the record. The said report discloses that the Advocate Commissioner also filed two sketches along with report. The report further discloses that the said Advocate

Commissioner got measured the land in S.No.250. The report further discloses that part of property in R.S.No.250/4A and 250/4B is merged in southern side road. Written Statement pleadings in O.S.No.109/2008 disclose that the Government while formulating the road on the southern side encroached an extent of AC 0.04 cents in the property of the Plaintiff in

O.S.No.608/2008.

27. The Advocate Commissioner report further discloses that the property in S.No.250/4A and 250/4B are adjacent to each other, that the

Mandal Surveyor measured 1441 links to fix the point D as shown in first sketch appended to his report. The report further discloses that Point D was checked by measuring 385 links from Point C to Point D as shown in Sketch

No.1, that the Mandal Surveyor took measurements from the Western side of the Plaintiff’s property and fixed the points without taking G-lines 16 measurements as noted in F.M.B. In this regard, the learned counsel for the

Defendant has contended that the Advocate Commissioner not took the measurements from eastern side so as to cross check the points fixed by him.

28. On the report filed by Advocate Commissioner, Defendant filed memo of objections before the trial court that the Advocate Commissioner has not given the extent of land merged in the southern road in the said

S.No.240/4A and S.No.240/4B, that the Commissioner report suffers from irregularities, that Advocate Commissioner while fixing the points for taking measurements had not taken G-lines as per F.M.B but took measurements only from Western side and fixed the points and thereby, no weight can be given to Commissioner’s report. On perusal of the Advocate Commissioner report, though Advocate Commissioner found that some part of extent belonging to Plaintiff and Defendant merged in southern road, failed to give the extents of the merged property. The said report is silent in respect of extent of the property of both the parties merged into southern side road.

29. Plaintiff filed her written statement in O.S.No.109/2008 admitted about encroachment of AC 0.04 cents by the Government while formulating southern side road. Without furnishing measurements of the extent merged in the southern side road, the claim of the Plaintiff basing on GREEN marked portion shown as XYY1 shown in Sketch No.1 as part of R.S.No.250/4A is vague and cannot be allowed. Furthermore, Plaintiff failed to explain as to how the executants of Ex.A1 came into possession and enjoyment of AC 1.53 cents though an extent of AC 1.51 cents is situated in R.S.No.250/4A as per the recitals of Ex.A1. Admittedly, Plaintiff never got measured her land and laid stones since date of acquiring property under Ex.A1. Considering the objections raised by the Defendant, the Advocate Commissioner report cannot be accepted unless Plaintiff adduce evidence to prove the same.

30. Furthermore, in the cross-examination, P.W.2 admits that Ex.A1 not disclose lenient measurements. On perusal, the Plaint sketch filed in 17

O.S.No.608/2008 discloses that the schedule property is a rectangle bit with

AB and CD Parallel lines. However, Plaint sketch measurements of A and B is shown as 432 and whereas the parallel D to C is shown as 472. Both AB and

CD, though shown as parallel lines, their measurements are not shown equally. Thus, the plaint sketch in O.S.No.608/2008 not support the Plaintiff’s plea in respect of encroachment of AC 0.02 cents by Defendant, who is eastern side boundarydhar to the said property.

31. From the aforesaid evidence, Plaintiff failed to prove her entitlement to an extent of AC 1.53 cents under Ex.A1 and also failed to prove her prior possession over BCCI Plaint sketch marked portion and consequently, failed to prove that the Defendant encroached AC 0.02 cents depicted as BCCI in Plaint sketch. Thereby, Plaintiff is not entitled for recovery of BCCI Plaint sketch portion from the Defendant. On the other hand

Defendant proved existence of Kattava in between their properties and also proved that Plaintiff is trying to encroach into her property. Thereby,

Defendant is entitled for grant of Permanent Injunction against Plaintiff.

32. In view of the aforesaid discussion, Plaintiff in O.S.No.608/2008 is not entitled for the relief of recovery of Possession over schedule property shown as BCCI Plaint sketch against the Defendant. Point No.1 is answered against the Plaintiff in O.S.No.608/2008. On the other hand, Plaintiff in

O.S.No.109/2008 is entitled for grant of Permanent Injunction restraining

Defendant, her men and agents from every interfering with Plaintiff’s possession and enjoyment over the schedule property in O.S.No.109/2008.

Point Nos.2 and 3 are answered in favour of Plaintiff in O.S.No.109/2008.

POINT No.4:

33. In view of the discussion and findings given supra for Point Nos.1 to 3, it is held that the trial court has rightly discussed the oral and documentary evidence and arrived at just conclusion by dismissing the suit 18 with costs in O.S.No.608/2008 and decreeing the suit with costs in

O.S.No.109/2008. There is no need to interfere with the Common Judgment of

the trial court in the suit in O.S.No.608/2008 and in the suit in

O.S.No.109/2008 dated 21.02.2018. Point No.4 is answered against

Appellant.

POINT No.5:

34. In the result, both the Appeal suits in A.S.No.101/2018 and

A.S.No.102/2018 are dismissed without costs by confirming the decree and

Common Judgment dated 21.02.2018 in the suit in O.S.No.608/2008 and in the suit in O.S.No.109/2008 on the file of I Additional Junior Civil Judge’s court, Rajamahendravaram.

Dictated to the Stenographer Gr.III, transcribed by him, corrected and

pronounced by me in the open Court, this the 14 th day of October, 2024.

Principal Civil Judge (Senior Division),

Rajamahendravaram.

APPENDIX OF EVIDENCE

No additional Oral or Documentary evidence adduced on either side.

-FAIR- PCJ (SD)

Copy to I Additional Junior Civil Judge’s court, Rajamahendravaram.

1

IN THE COURT OF PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) ::

RAJAMAHENDRAVARAM

Present : Smt. M. Anuradha

Principal Civil Judge (Senior Division), Rajamahendravaram.

Monday, the 14th day of October, 2024.

A.S. No.101/2018 and A.S.No.102/2018

Parties in A.S.No.101/2018:

Between:

Talasila Subbalakshmi, Wife of Venkata Nageswara Rao @Srinivas, aged 50 years, House wife, Venkatanagaram, Rajamahendravaram JCJC.

… Appellant/Plaintiff.

And

Khandavilli Suryakantham, Wife of Anjaneyulu, aged 65 years, House wife,

D.No.17-13-1, Krishnanagar, Sitampeta, Rajamahendravaram,

Rajamahendravaram JCJC.

… Respondent/Defendant.

On appeal against the Common Judgment and decree passed by I

Additional Junior Civil Judge’s Court, Rajamahendravaram dated

21.02.2018 in O.S.No.608/2008.

O.S.No.608/2008

Between:

Talasila Subbalakshmi. … Plaintiff.

And:

Khandavilli Suryakantham. … Defendant.

Parties in A.S.No.102/2018:

Between:

Talasila Subbalakshmi, Wife of Venkata Nageswara Rao @Srinivas, aged 50 years, House wife, Venkatanagaram, Rajamahendravaram JCJC.

… Appellant/Defendant.

2

And

Khandavilli Suryakantham, Wife of Anjaneyulu, aged 65 years, House wife, D.No.17-13-1, Krishnanagar, Sitampeta, Rajamahendravaram, Rajamahendravaram JCJC. … Respondent/Defendant.

On appeal against the Common Judgment and decree passed by I

Additional Junior Civil Judge’s Court, Rajamahendravaram dated

21.02.2018 in O.S.No.109/2008.

O.S.No.109/2008

Between:

Khandavilli Suryakantham. … Plaintiff.

And:

Talasila Subbalakshmi. … Defendant.

This appeal is coming on 18.09.2024 for final hearing upon perusing the grounds of appeal, judgment and decree of the trial court and other connected papers on record and of Sri. K. Bharani Kumar, Advocate for Appellant, Sri. G.S.S. Murali Mohan, Advocate for Respondent in both A.S.No.101/2018 and

A.S.No.102/2018 and the matter having stood over for consideration till this

day this court delivered the following:

C O M M O N J U D G M E N T

1. Originally, this is an appeal made over to the court of Hon’ble X

Additional District Judge, Rajamahendravaram. Later, the same was

transferred to this court for disposal as per the proceedings of Hon’ble

Principal District Judge, E.G. District, Rajamahendravaram in Dis.No.125

dated 04.01.2024.

2. Appellant/Plaintiff filed appeal in A.S.No.101/2018 aggrieved by the decree and judgment in O.S.No.608/2008 on 21.02.2018 delivered by the court of learned I Additional Junior Civil Judge, Rajamahendravaram.

3

Appellant/Defendant filed appeal in A.S.No.102/2018 aggrieved by the decree and judgment in O.S.No.109/2008 on 21.02.2018 delivered by the court of learned I Additional Junior Civil Judge, Rajamahendravaram.

3. The Grounds of appeal in A.S.No.101/2018 reads as follows:

 It is averred that the trial court ought not to have dismissed

O.S.No.608/2008 and the trial court went wrong in dismissing the

same;  that the trial court ought to have found that Plaintiff proved his case of Defendant’s encroachment of Plaint schedule property;  Appellant further pleads that the trial court lost sight of an important aspect in the case viz., that the boundary line between S.No.250/4A and S.No.250/4B would be the most significant proof of the case of Plaintiff;  Appellant further pleads that the trial court failed to properly appreciate the report of Advocate Commissioner, that the comments made by trial court over the report of Advocate Commissioner are not correct and they are liable to be ignored;  that the trial court ought to have totally accepted the report of Advocate Commissioner;  Appellant further pleads that Advocate Commissioner with the help of Mandal Surveyor rightly fixed the boundary between S.No.250/4A and S.No.250/4B, that it is admitted case of Defendant that her property is only in S.No.250/4B but not in S.No.250/4A, that the Commissioner after having fixed the boundary between two Survey numbers found that XYZ property of an extent of AC 0.03 cents shown in Green Colour is the Property which is part of S.No.250/4A, that the Commissioner also identified that an extent of AC 0.02 cents out of the same which is marked as XYY1 is in possession of the Defendant and rest of AC 0.01 cents of Property is covered by the road encroachment, that under such circumstances, the Judgment of trial court as though the report of Advocate Commissioner is not clear and categorical in that respect is not correct and against the contents of the report;  that the trial court failed to give any other reason to discredit the report of Advocate commissioner, that the trial court 4 unnecessarily gave credence to the total area of the Property mentioned in Ex.A1, that the trial court ought to have seen that the Commissioner did not conclude about the encroachment on the basis of the area mentioned in Ex.A1, but on the other hand he came to such conclusion on the basis of fixation of boundary in between S.Nos.250/4A and 250/4B;  that the trial court failed to consider the fact that Defendant was not examined as witness and there is no proper explanation for non-examination of the Defendant and hence, the trial court ought to have drawn adverse inference against Defendant;  that the trial court wrongly made a comment about evidence of P.W.2, more particularly, about when Plaintiff came to know of the encroachment made by Defendant, that the trial court failed to see that the date of encroachment is of no legal consequence since possession should follow title as per the judgments of the

Hon’ble Supreme court;

Thereby, Appellant in A.S.No.101/2018 prays to set aside the decree and judgment in O.S.No.608/2008 on 21.02.2018 delivered by the court of learned I Additional Junior Civil Judge, Rajamahendravaram.

4. The Grounds of appeal in A.S.No.102/2018 reads as follows:

 It is averred that the trial court erred in decreeing the suit in

O.S.No.109/2008 and the trial court ought to have dismissed the

same;  that the trial court ought to have placed burden on the Plaintiff to establish her case that she is in lawful possession of the extent covered by her sale deed and that she is not in possession of any part of the land in S.No.250/4A;  Appellant further pleads that the trial court ought to have seen that Plaintiff has not come to this court with clean hands, that the trial court failed to see that the Advocate Commissioner’s report is adverse to the case of the Plaintiff;

Thereby, Appellant in A.S.No.102/2018 prays to set aside the decree and judgment in O.S.No.109/2008 on 21.02.2018 delivered by the court of learned I Additional Junior Civil Judge, Rajamahendravaram.

5

5. The Appellant in A.S.No.101/2018 is the Plaintiff in

O.S.No.608/2008 whereas Respondent in A.S.No.101/2018 is the Defendant

in O.S.No.608/2008, Appellant in A.S.No.102/2018 is the Defendant in

O.S.No.109/2008 whereas Respondent in A.S.No.102/2018 is the Plaintiff in

O.S.No.109/2008. It is appropriate to refer the parties herein with their original

status in trial court for better understanding and to avoid confusion if any.

6. Plaintiff/Talasila Subbalakshmi filed suit in O.S.No.608/2008 for recovery of Possession of BCC1 shown in the Plaint plan and for grant of profts from the date of the suit till delivery of Possession. Plaintiff/Khandavilli

Suryakantam filed suit in O.S.No.109/2008 for Permanent Injunction restraining Defendant, her men, agents etc., from ever interfering with the

Plaintiff’s peaceful possession and enjoyment of the Plaint schedule property.

The both suits in O.S.No.608/2008 and O.S.No.109/2008 are clubbed together wherein evidence is led in O.S.No.608/2008 before the trial court.

7. The brief facts of the Plaint in O.S.No.608/2008 reads as follows:

It is averred that Plaintiff/Smt. T. Subbalakshmi filed suit for recovery of Possession of suit schedule property shown as BCC1 in Plaint plan from Khandavilli Suryakantam (Defendant) and for grant of profits from the date of suit till date of delivery of Possession. Plaintiff pleads that she is the owner of ABCD area shown in Plaint sketch by virtue of Registered Gift

Deed dated 10.06.2004, that the Defendant claims to have owned a vacant site to the east of the said property, that Defendant claims property in

S.No.250/4B of Katheru Village whereas Property shown in ABCD is in

S.No.250/4A and recently, Defendant encroached AC 0.02 cents of Plaintiff’s property as described in Plaint sketch depicted as BCC1, that Defendant filed

O.S.No.109/2008 as if she is owner of Property including BCC1 in order to

perpetuate the mischief, that since the Defendant is in unlawful possession of 6 schedule property. Thereby, Plaintiff filed the suit in O.S.No.608/2008 for recovery of Possession of the same.

8. On receipt of suit summons, Defendant filed Written

Statement reads as follows:

a. Defendant denied all the averments of Plaint and contended that she along with one M.V. Venkata Sreenivas purchased Plot

No.4 of an extent of 720 sq. yards in the layout made in respect of the land covered by S.No.250/4 of Katheru from one D.Venkateswara Rao and his son @Rs.16/- per sq. yard as per Registered Sale Deed dated 22.10.1983 and were in possession of the said extent since the date of said sale deed, that earlier it was in possession of the predecessor-in title of the Defendant. It is averred that while in possession and enjoyment of the extent of 720 sq. yards as absolute owners, Defendant and Sreenivas sold away northern 360 sq.

yards under Registered Sale Deed dated 25.02.1986 to one D. Padmavathi, and continued in possession of the remaining extent of 360 sq. yards, while so, the said Sreenivas relinquished his undivided ½ share in the extent of 360 sq. yards in favour of Defendant as per Registered Relinquishment Deed

dated 15.09.2001 and the said Padmavathi who purchased extent of northern

360 sq. yards, sold the same to Defendant as per Registered Sale Deed dated 03.08.2002 and delivered possession to Defendant, that since then,

Defendant is in possession and enjoyment of 720 sq. yards covered by Plot

No.4 in her own title as an absolute owner. It is further averred that seasonal crops like Vegetables and tobacco are being grown in the extent of 720 sq.

yards since time of purchase of the same under Sale deed dated 22.10.1983 and even while Padmavathi was the owner of northern extent of 720 sq. yards and one Gangadharam, has been looking after the extent of 720 sq. yards since the year 1983 on behalf of Defendant and when Padmavathi was owner of 720 sq. yards on her behalf the extent of 360 sq. yards and on behalf of

Defendant, the extent of 360 sq. yards.

7 b. It is averred that schedule property forms part of the site belonging to Defendant, even by the time of purchase of Plot No.4 by

Defendant and another in the year 1983, there is an earthen bund with a kattava thereon, which is situated in Western boundary of 720 sq. yards, that the Plaintiff along with her henchmen attempted to remove the said kattava and burn the same so as to highhandedly encroach into the site of Defendant, but the said attempt was resisted in time by the Defendant and apprehending that the Plaintiff would pursue her attempts and carry out the illegal object of trespassing into the site, Defendant filed suit in O.S.No.109/2008 and that as a counter blast to suit in O.S.No.109/2008 on the next day of filing of this suit,

Plaintiff’s men burnt a part of kattava referred to above, that an extent of AC 0.02 cents is part and parcel of Property belonging to Defendant and the question of any encroachment does not arise and the alleged encroachment is only invented by the Plaintiff to grab the same. Thereby, Defendant prays to dismiss the suit.

9. Basing on the above pleadings, the trial court has settled the following issues in O.S.No.608/2008 for trial:

1. Whether the Plaintiff is entitled to decree of recovery of Possession of the Plaint schedule property and for future profits of the schedule property as sought in the Plaint ?

2. To what relief ?

10. The brief facts of the Plaint in O.S.No.109/2008 reads as follows:

a. It is averred that Plaintiff/Khandavilli Suryakantham filed suit for Permanent Injunction restraining Defendant, her agents, henchmen etc., from ever interfering with the Plaintiff’s peaceful possession and enjoyment of Plaint schedule property, that Plaint schedule property was purchased by Plaintiff and one M.V. Srinivas as per Registered Sale Deed

dated 22.10.1983 executed by one Sri. Dasari Venkateswara Rao for 720 sq.

8 yards, that said M.V. Srinivas and Plaintiff sold away ½ of the joint share to

Smt. D. Padmavathi as per the Registered Sale deed dated 25.02.1986 for 360 sq. yards out of 720 sq. yards, that subsequently M. Srinivas relinquished his joint half share to Plaintiff as per Registered Relinquishment deed dated 15.09.2001 for 180 sq. yards out of 360 sq. yards. It is further averred that D.

Padmavathi again resold away her 360 sq. yards to Plaintiff as per Registered sale deed dated 03.08.2002, that Plaintiff is in peaceful possession and enjoyment of Plaint schedule property, that the entire plaint schedule property of 720 sq. yards has been looking after by one Somu Gangadharam under the instructions of Plaintiff M.V.Srinivas and D. Padmavathi and now and then.

b. It is further averred that there is boundary line (kattava) as shown in red marked A-B line as shown in Plaint plan even prior to purchase of Plaint schedule property i.e., from 22.10.1983 by Plaintiff and M.V. Srinivas, that Defendant who is resident of western side of Plaint schedule property and her agents and henchmen etc., are trying to interfere since week days from the date of suit, by removing kattava high handedly and by burning the kattava shown in Red marked A-B portion in the plaint plan, with intention to encroach the Plaint schedule property with the hectic efforts and with the ulterior motive and the men of Plaintiff, that Plaintiff has been residing in

Rajamahendravaram i.e., far away from Plaint schedule property and

Defendant is residing in adjacent of Plaint schedule property and Plaintiff is unable to protect lawful right hold ship over Plaint schedule property and she will be put to great loss. Thereby, Plaintiff filed the suit for Permanent

Injunction restraining Defendant, her agents, henchmen etc., from ever interfering with the Plaintiff’s peaceful possession and enjoyment of Plaint schedule property.

11. On receipt of suit summons, Defendant filed Written

Statement reads as follows:

9

Defendant denied all the averments of Plaint and contended that she owns land in S.No.250/4A to the West of Plaint schedule property whereas, property claimed by Plaintiff is in separate and distinct survey number as S.No.250/4B, that in the Plait schedule, Plaintiff wrongly mentioned as though the schedule property is in S.No.250/4A, that Plaintiff recently encroached an extent of AC 0.02 cents of Defendant’s site and annexed the same to her property, that similarly Government while forming a road on the southern side encroached an extent of AC 0.04 cents in the Defendant’s property and that Defendant is taking separate action against Plaintiff and

Government by filing separate suits for recovery of Possession of the respective properties encroached by them, that Plaintiff filed present suit in order to perpetuate the mischief committed by Plaintiff as though she is the rightful owner of AC 0.02 cents of Properties belonging to Defendant.

Thereby, Defendant prays to dismiss the suit.

12. Basing on the above pleadings, the trial court has settled the following issues in O.S.No.109/2008 for trial:

1. Whether the Plaintiff is entitled to decree of Prohibitory

Permanent Injunction as sought in the Plaint ?

2. To what relief ?

13. Since both O.S.No.608/2008 and O.S.No.109/2008 are clubbed together and evidence is let in O.S.No.608/2008 for convenience and clear understanding, the parties are arrayed as in O.S.No.608/2008. In order to prove the respective contentions, Plaintiff (in O.S.No.608/2008) herself filed

Chief Affidavit and the same is eschewed and husband of P.W.1 examined as

P.W.2 and Ex.A1 and Ex.A2 are marked on her behalf. D.W.1 and D.W.2 are examined on behalf of Defendant. Ex.B1 to Ex.B14 are marked on her behalf.

14. Upon going through impugned decree and judgment dated 21.02.2018 in O.S.No.608/2008 clubbed with O.S.No.109/2008, it is learnt that the trial court has dismissed the suit in O.S.No.608/2008 with costs and 10 decreed the suit in O.S.No.109/2008 with costs granting permanent injunction in favour of Plaintiff restraining the Defendant, her men, agents from interfering with the Plaintiff’s peaceful possession and enjoyment over the schedule property in O.S.No.109/2008. Aggrieved by the said judgment and decree, Appellant/Talasila Subbalakshmi preferred appeals in

A.S.No.101/2018 and A.S.No.102/2018.

15. The learned counsel for Appellant filed Written Arguments in both

Appeal Suits in A.S.No.101/2018 and A.S.No.102/2018. On perusal, the written arguments submitted by Appellant are nothing but replica of the grounds of Appeal.

16. Heard the learned counsel for Respondent.

17. The following points are formulated for determination of this appeal suit :

1. Whether the Plaintiff in O.S.No.608/2008 is entitled to decree of recovery of Possession of Plaint schedule property and for future profits of the schedule property against Defendant therein ?

2. Whether the Plaintiff in O.S.No.109/2008 is in possession and enjoyment of the Plaint schedule property as on the date of filing of the suit ?

3. Whether the Plaintiff in O.S.No.109/2008 is entitled for the relief of Permanent Injunction against the Defendant therein ?

4. Whether the impugned Common Judgment dated 21.02.2018 in

O.S.No.608/2008 and O.S.No.109/2008 of the Trial Court, is

sustainable either factually or legally ?

5. To what relief ?

18. Perused the pleadings and evidence let in by both parties before trial court. Parties are referred herein as arrayed in the suit in

O.S.No.608/2008.

11

POINT No.1 to 3:

19. As seen from the trial court record, both the suits in

O.S.No.608/2008 and O.S.No.109/2008 were clubbed and common trial was

conducted in O.S.No.608/2008. Plaintiff in O.S.No.608/2008 filed her chief affidavit as P.W.1 in lieu of her chief examination. However, at later stage, the

Chief Examination affidavit of P.W.1 was eschewed by the trial court. The husband of Plaintiff in O.S.No.608/2008 is examined as P.W.2 and the True copy of Registered Gift deed dated 10.06.2004 and True copy of Pattadhar

Passbook are marked as Ex.A1 and Ex.A2. On the other hand, daughter of

Defendant is examined as D.W.1 and one third party is examined as D.W.2.

Defendant got marked Ex.B1 to Ex.B14.

20. Plaintiff’s contention is that she is the owner of ABCD Plaint

Sketch marked property situated in S.No.250/4A. Plaintiff claims that

Defendant encroached AC 0.02 cents of her property shown as BCCI in the

Plaint sketch. Thereby, Plaintiff filed suit in O.S.No.608/2008 against

Defendant for recovery of Possession of BCCI Plaint sketch marked property.

On the other hand, the plea of Defendant is that she got title over the Plaint schedule property by virtue of Ex.B1, Ex.B4 and Ex.B5 documents, that she has been in possession and enjoyment of the schedule property, that Plaintiff is trying in interfere with her possession and enjoyment and thereby,

Defendant filed suit in O.S.No.109/2008 for grant of Permanent Injunction against the Plaintiff herein. Defendants specifically plead that an extent of AC 0.02 cents is part and parcel of property covered under the documents filed by her under Ex.B1 to Ex.B5.

21. As Plaintiff claims for recovery of Plaint sketch BCCI marked property basing on her title, it is for the Plaintiff to prove that she was in lawful possession of BCCI Plaint sketch marked property prior to filing of the suit and she was dispossessed from her property and thereby, she is entitled to recover such possession. The husband of Plaintiff in his evidence as P.W.2 12 reiterated Plaint averments. Plaint pleadings and the evidence of P.W.2 is that

Plaintiff became absolute owner of ABCD Plaint sketch marked property by virtue of Registered Gift deed dated 10.06.2004. In this regard, Plaintiff filed

Ex.A1/Certified copy of Registered Gift Deed dated 10.06.2004 and

Ex.A2/Certified copy of Pattadhar Passbook stands in the name of Plaintiff.

On perusal, the recitals of Ex.A1 discloses that the donor got property to an extent of AC 1.51 ½ cents in R.S.No.250/4A and executed Gift Deed to an extent of AC 1.53 cents. P.W.2 in the cross-examination admitted the discrepancy in the recitals of Ex.A1 with regard to the extent of AC 1.51 ½ cents got by the donors on Partition and gifted an extent of AC 1.53 cents which is in their possession. Thus, the recitals of Ex.A1 in respect of the extent gifted to the Donee is ambiguous. The schedule of Ex.A1 discloses that

Donors have property to an extent of AC 1.51 ½ cents in R.S.No.250/4A but they have gifted to an extent of AC 1.53 cents to Donee. Ex.A1 is silent as to how the Donors gifted the excess AC 1 ½ cents in R.S.No.250/4A to the

Donee/Plaintiff herein. Though filed Ex.A2, being Pattadhar Passbook, is issued in pursuance of the Gift deed under the original of Ex.A1. Thus, there is ambiguity in Ex.A1/Gift deed in respect of title and possession of the Plaintiff’s

Donors to an extent of AC 1.53 cents or whether to an extent of AC 1.51 1/2 cents.

22. Plaintiff claims that Defendant encroached AC 0.02 cents shown as BCCI in Plaint sketch. On perusal, admittedly neither the Plaintiff nor her husband has measured the property covered under Ex.A1 at any point of time.

P.W.2 admits that till filing of the suit in O.S.No.109/2008 by the Defendant herein for grant of Permanent Injunction, they have no knowledge about the encroachment by the Defendant into AC 0.02 cents of their property. Though

Plaintiff claims that Defendant encroached BCCI Plaint sketch marked portion of her property, Pleadings are silent in respect of the date, month and year on which Defendant encroached the disputed portion. P.W.2 in his cross- examination also pleaded ignorance about the date on which Defendant 13 encroached into the disputed portion. Thus, from the evidence of P.W.2 and from the document under Ex.A1, Plaintiff could not establish that she was in lawful possession over BCCI Plaint sketch marked portion prior to filing of the suit and Defendant encroached into disputed portion.

23. On the other hand, Defendant claims that it is the Plaintiff who is trying to encroach into her property and thereby, at first, she knocked the doors of the court for grant of discretionary relief of Permanent Injunction. In proof of his contention, the daughter of Defendant is examined D.W.1. D.W.1 reiterated the contents of plaint in O.S.No.109/2008 in her chief affidavit. The evidence of D.W.1 is that her mother along with one Mavuri Veera Venkata

Srinivas jointly purchased property under Registered Sale deed executed by one G. Venkateswar Rao. In proof the said oral testimony, Defendant filed

Ex.B1/Original Registered Deed dated 22.10.1983. Defendant also filed

Ex.B3/Duplicate copy of Ex.B1 Sale Deed dated 25.10.1983. The recitals of

Ex.B1 and Ex.B3 disclose that Defendant and one Mavuri Veera Venkata

Srinivas jointly purchased the property in S.No.250/4 in a layout in plot No.4 to an extent of 720 sq. yards. The boundaries of Ex.B1 depict a road on eastern and southern side and western side is shown as Property in S.No.250/4A and northern side is Plot No.3.

24. It is pertinent to mention that P.W.2 in his cross-examination admitted his knowledge about Ex.B1 sale deed. Furthermore, the evidence of

D.W.1 is that out of the property covered under Ex.B1, Defendant and Mavuri

Veera Venkata Srinivas sold away half of the property to one Smt. D.

Padmavathi. With regard to Ex.B2 transaction, P.W.2 pleaded ignorance.

Furthermore, D.W.1 testified that the co-owner of Ex.B1 relinquished his undivided half share in the property covered under Ex.B1 in favour of the

Defendant. In proof of the same, D.W.1 filed Ex.B4/Registered

Relinquishment deed dated 15.09.2001. Furthermore, D.W.1 testifies that the vendee under Ex.B2/Sale Deed has conveyed the property in favour of her mother i.e., Defendant under Registered Sale deed. In proof of the same, 14

D.W.1 filed Ex.B5/Registered Sale deed dated 03.08.2002. With regard to the transactions under Ex.B4 and Ex.B5, P.W.2 pleaded ignorance. On culmination of the transactions under Ex.B1 to Ex.B5, it is understood that the

Defendant got title to an extent of 720 sq. yards in Plot No.4 in the layout in respect of S.No.250/4. The evidence of D.W.1 is that land in S.No.250/4 is subdivided as 250/4A and 250/4B, that Plaint schedule property is part and parcel of the property covered under Ex.B1, that there is earthen bund with

Kattava (Farm land edge lane) therein since 1983, that the Plaintiff is having property towards west beyond kattava. The evidence of D.W.1 is that Plaintiff made attempts to remove kattava and burnt the kattava high handedly and thereby, her mother filed suit in O.S.No.109/2008 for grant of Permanent

Injunction.

25. In proof of existence of kattava as boundary towards west of her mother’s property, D.W.1 filed Photographs and CD and they are marked as

Ex.B6 to Ex.B9 and Ex.B11 to Ex.B13/Three Photographs and Ex.B10 and

Ex.B14/Corresponding 2 C.Ds. On perusal, the three photographs with corresponding CD filed under Ex.B11 to Ex.B14 disclose existence of kattava in between the two lands and further Ex.B6 to Ex.B9/Photographs discloses burnt marks along with line of cement poles. Though P.W.2 in his cross- examination denied removal of trees on the kattava and the poles in between their lands, at later point of time, P.W.2 admits that he cut the trees on the northern kattava and burnt them. Furthermore, Defendant has examined one of the neighbor land owner as D.W.2 by name Somu Gangadharam @Gangadhara Rao. D.W.2 testified that he has been looking after the schedule property subsequent to the date of Ex.B1, that there is kattava in between the properties of Plaintiff and Defendant, that the Plaintiff is trying to interfere with Defendant’s possession and enjoyment over the Plaint schedule property. Though P.W.2 denied the existence of any boundary line (kattava), the admissions brought in his cross-examination support Defendant’s plea about existing kattava(boundary line) in between properties of the Plaintiff and 15

Defendant. Furthermore, the oral testimonies of P.W.1 and P.W.2 and the photographs with Corresponding CD marked under Ex.B6 to Ex.B14 and admissions of P.W.2 support Defendant’s plea that Plaintiff is trying to interfere with Defendant’s possession and enjoyment over the schedule property.

26. As seen from the trial court record, an Advocate Commissioner was appointed as per the orders in I.A.No.682/2015 dated 28.03.2017 by entrusting the warrant for localization of the schedule property with specific direction to note down how the disputed land is localized i.e., the Survey stone is identified and measure the linear measurements of the disputed land with reference to the field measurement sketch of the land in Survey No.250 and with the assistance of Mandal Surveyor. Accordingly, the learned Advocate

Commissioner was entrusted with the warrant and executed the same on 28.10.2017 and filed report. Though not examined, the Advocate

Commissioner’s Report dated 14.11.2017 forms part of the record. The said report discloses that the Advocate Commissioner also filed two sketches along with report. The report further discloses that the said Advocate

Commissioner got measured the land in S.No.250. The report further discloses that part of property in R.S.No.250/4A and 250/4B is merged in southern side road. Written Statement pleadings in O.S.No.109/2008 disclose that the Government while formulating the road on the southern side encroached an extent of AC 0.04 cents in the property of the Plaintiff in

O.S.No.608/2008.

27. The Advocate Commissioner report further discloses that the property in S.No.250/4A and 250/4B are adjacent to each other, that the

Mandal Surveyor measured 1441 links to fix the point D as shown in first sketch appended to his report. The report further discloses that Point D was checked by measuring 385 links from Point C to Point D as shown in Sketch

No.1, that the Mandal Surveyor took measurements from the Western side of the Plaintiff’s property and fixed the points without taking G-lines 16 measurements as noted in F.M.B. In this regard, the learned counsel for the

Defendant has contended that the Advocate Commissioner not took the measurements from eastern side so as to cross check the points fixed by him.

28. On the report filed by Advocate Commissioner, Defendant filed memo of objections before the trial court that the Advocate Commissioner has not given the extent of land merged in the southern road in the said

S.No.240/4A and S.No.240/4B, that the Commissioner report suffers from irregularities, that Advocate Commissioner while fixing the points for taking measurements had not taken G-lines as per F.M.B but took measurements only from Western side and fixed the points and thereby, no weight can be given to Commissioner’s report. On perusal of the Advocate Commissioner report, though Advocate Commissioner found that some part of extent belonging to Plaintiff and Defendant merged in southern road, failed to give the extents of the merged property. The said report is silent in respect of extent of the property of both the parties merged into southern side road.

29. Plaintiff filed her written statement in O.S.No.109/2008 admitted about encroachment of AC 0.04 cents by the Government while formulating southern side road. Without furnishing measurements of the extent merged in the southern side road, the claim of the Plaintiff basing on GREEN marked portion shown as XYY1 shown in Sketch No.1 as part of R.S.No.250/4A is vague and cannot be allowed. Furthermore, Plaintiff failed to explain as to how the executants of Ex.A1 came into possession and enjoyment of AC 1.53 cents though an extent of AC 1.51 cents is situated in R.S.No.250/4A as per the recitals of Ex.A1. Admittedly, Plaintiff never got measured her land and laid stones since date of acquiring property under Ex.A1. Considering the objections raised by the Defendant, the Advocate Commissioner report cannot be accepted unless Plaintiff adduce evidence to prove the same.

30. Furthermore, in the cross-examination, P.W.2 admits that Ex.A1 not disclose lenient measurements. On perusal, the Plaint sketch filed in 17

O.S.No.608/2008 discloses that the schedule property is a rectangle bit with

AB and CD Parallel lines. However, Plaint sketch measurements of A and B is shown as 432 and whereas the parallel D to C is shown as 472. Both AB and

CD, though shown as parallel lines, their measurements are not shown equally. Thus, the plaint sketch in O.S.No.608/2008 not support the Plaintiff’s plea in respect of encroachment of AC 0.02 cents by Defendant, who is eastern side boundarydhar to the said property.

31. From the aforesaid evidence, Plaintiff failed to prove her entitlement to an extent of AC 1.53 cents under Ex.A1 and also failed to prove her prior possession over BCCI Plaint sketch marked portion and consequently, failed to prove that the Defendant encroached AC 0.02 cents depicted as BCCI in Plaint sketch. Thereby, Plaintiff is not entitled for recovery of BCCI Plaint sketch portion from the Defendant. On the other hand

Defendant proved existence of Kattava in between their properties and also proved that Plaintiff is trying to encroach into her property. Thereby,

Defendant is entitled for grant of Permanent Injunction against Plaintiff.

32. In view of the aforesaid discussion, Plaintiff in O.S.No.608/2008 is not entitled for the relief of recovery of Possession over schedule property shown as BCCI Plaint sketch against the Defendant. Point No.1 is answered against the Plaintiff in O.S.No.608/2008. On the other hand, Plaintiff in

O.S.No.109/2008 is entitled for grant of Permanent Injunction restraining

Defendant, her men and agents from every interfering with Plaintiff’s possession and enjoyment over the schedule property in O.S.No.109/2008.

Point Nos.2 and 3 are answered in favour of Plaintiff in O.S.No.109/2008.

POINT No.4:

33. In view of the discussion and findings given supra for Point Nos.1 to 3, it is held that the trial court has rightly discussed the oral and documentary evidence and arrived at just conclusion by dismissing the suit 18 with costs in O.S.No.608/2008 and decreeing the suit with costs in

O.S.No.109/2008. There is no need to interfere with the Common Judgment of

the trial court in the suit in O.S.No.608/2008 and in the suit in

O.S.No.109/2008 dated 21.02.2018. Point No.4 is answered against

Appellant.

POINT No.5:

34. In the result, both the Appeal suits in A.S.No.101/2018 and

A.S.No.102/2018 are dismissed without costs by confirming the decree and

Common Judgment dated 21.02.2018 in the suit in O.S.No.608/2008 and in the suit in O.S.No.109/2008 on the file of I Additional Junior Civil Judge’s court, Rajamahendravaram.

Dictated to the Stenographer Gr.III, transcribed by him, corrected and

pronounced by me in the open Court, this the 14 th day of October, 2024.

Principal Civil Judge (Senior Division),

Rajamahendravaram.

APPENDIX OF EVIDENCE

No additional Oral or Documentary evidence adduced on either side.

-FAIR- PCJ (SD)

Copy to I Additional Junior Civil Judge’s court, Rajamahendravaram.

1

IN THE COURT OF PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) ::

RAJAMAHENDRAVARAM

Present : Smt. M. Anuradha

Principal Civil Judge (Senior Division), Rajamahendravaram.

Monday, the 14th day of October, 2024.

A.S. No.252/2018

Between:

1. Mamidisetti Anasuya, W/o. Satyanarayana, aged 59 years, House wife, R/o. Vemagiri Village, Kadiyam Mandal, East Godavari District. (died)

2. Chitturi Nagamani, W/o. Krishna, aged 55 years, R/o. D.No.3-140, Vemagirigattu, Kadiyam, Vemagiri, Kadiyam Mandal, East Godavari District.

(Appellant No.2 impleaded as per orders in I.A.No.177/2023 dated 02.02.2023)

… Appellants.

And

1. Pampana Venkateswara Rao, S/o. late Pampana Veerraju, aged 50 years, Lorry Driver, Door No.3-139, Subrahmanya Nagar, Vemagiri Village, Kadiyam Mandal, East Godavari District.

2. Pithani Ramana, W/o. Dhana Raja, aged 51 years, Door No.4-27, Bokkapakala, H/o. Tapeswaram Village, Mandapeta Mandal, East Godavari District.

3. Mamidisetti Srinivas, S/o. Satyanarayana, aged 43 years, Lorry Driver, Someswaram, Near Ramachandrapuram.

(Respondent No.3 impleaded as per orders in I.A.No.177/2023 dated 02.02.2023.)

… Respondents.

On appeal against the Judgment and Decree passed by I Additional

Junior Civil Judge’s Court, Rajamahendravaram dated 17.09.2018 in

O.S.No.87/2014.

O.S.No.87/2014

Between:

Mamidisetti Anasuya … Plaintiff.

2

And:

1. Pampana Venkateswara Rao.

2. Pithani Ramana. … Defendants.

This appeal is coming on 03.10.2024 for final hearing upon perusing the grounds of appeal, judgment and decree of the trial court and other connected papers on record and of Sri. D.V.K. Ramesh, Advocate for Appellants, Sri. S.L.V. Prasada Rao and K.V.S.S. Prabhakar Rao, Advocates for Respondent Nos.1 and 2, Respondent No.3 remained ex-parte, 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. Originally, this is an appeal made over to the court of Hon’ble IX

Additional District Judge cum Family Court, Rajamahendravaram. Later, the

same was transferred to this court for disposal as per the proceedings of

Hon’ble Principal District Judge, E.G. District, Rajamahendravaram in

Dis.No.125 dated 04.01.2024.

2. Appellant No.1/Plaintiff filed the present appeal aggrieved by the decree and judgment in O.S.No.87/2014 on 17.09.2018 delivered by the court of learned I Additional Junior Civil Judge, Rajamahendravaram.

3. The Grounds of appeal reads as follows:

 It is averred that the trial court ought not to have dismissed the suit in view of the documents filed by the Appellants under Ex.A1 to Ex.A9 as the name of the Defendants is not correct and the decree cannot be executed against them;  that the trial court ought not to have dismissed the suit since Appellant No.1/Plaintiff proved her title and possession over the property;  that the trial court ought not to have believed the version of D.W.1 to D.W.4 and failed to appreciate the evidence of their cross- examination; 3  that the trial court failed to consider the evidence of P.W.1 which clearly establishes the fact that the suit schedule property is covered by Ex.A1 Settlement deed dated 10.04.1987 and that R and B site is also there apart from the property covered by the Settlement deed;  that the trial court fails to consider Appellant’s plea as she discharged her initial burden for grant of the relief of Permanent Injunction, that the trial court wrongly came to the conclusion that the plaint pleadings did not disclose the specific date as to when the Respondents made attempt to forcible possession of the schedule property and wrongly observed that the Plaintiff failed to lodge police complaint against Respondent;  The trial court ought not to have come to the conclusion that Plaintiff failed to establish the cause of action to file the suit;

Thereby, Appellants pray to allow the Appeal with costs and to set aside the decree and judgment dated 17.09.2018 in O.S.No.87/2014 delivered by the court of learned I Additional Junior Civil Judge, Rajamahendravaram. It is appropriate to refer the parties herein with their original status in trial court for better understanding and to avoid confusion if any. Thus, the Appellant No.1 herein is the Plaintiff whereas the Respondent Nos.1 and 2 herein are the

Defendants.

4. The brief facts of the Plaint are reads as follows:

It is averred that Defendant No.1 is the brother of Defendant No.2 and they are the children of the junior Maternal Aunt of the Plaintiff. Plaintiff further pleads that she acquired Plaint schedule property under Registered

Settlement Deed dated 10.04.1987 under Document No.2721/1987, SRO,

Rajamahendravaram, that subsequently, she constructed a RCC building in part of the Plaint schedule property which is shown as ABCD marked property of the Plaint plan, leaving vacant site on the eastern side of the house which is shown as CDEF marked property of the Plaint plan. Plaintiff further pleads that

Defendant No.1 is also having property on the northern side of the Plaint schedule property, that he is residing in the tiled house situated therein, that 4

Defendant No.1 also left vacant space on the eastern side of the house parallel to the vacant site of the Plaintiff. It is further averred that in the recent past, Defendant Nos.1 and 2 in collusion with each other are trying to interfere with the rights of the Plaintiff in the CDEF marked property of the Plaint plan with a view to take forcible possession with a desire to provide a house site to the Defendant No.2 for her residence. Thereby, Plaintiff filed the present suit for grant of Permanent Injunction restraining the Defendants and their men from ever interfering with the rights of the Plaintiff in the Plaint schedule property and to award costs of the suit.

5. Written Statement filed by Defendant Nos.1 and 2 reads as follows:

Defendant Nos.1 and 2 denied the plaint averments. Defendant

Nos.1 and 2 also denied the Registered Settlement deed dated 10.04.1987 and took the plea that the said document was obtained by forging the signatures or thumb impressions, that their father never executed any such settlement deed in favour of the Plaintiff during his life time. Defendant Nos.1 and 2 further plead that originally Plaint schedule property belongs to their grandfather by name Venkanna, that father of Defendants by name Veeraju is the only son of Venkanna. Defendant Nos.1 and 2 further plead that after the demise of their grandfather Venkanna, father of the Defendants became

Manager and Karta of joint Hindu Family. It is averred that on the date of the alleged settlement deed dated 10.04.1987, Defendants were born and the succession opens immediately after the birth of Defendants as they being coparceners of Hindu Joint Family. Defendant Nos.1 and 2 further plead that the settlement deed filed by the Plaintiff is not valid, that it is not binding on the

Defendants. Defendants also claim their right and title over the Plaint schedule property, being members of the Hindu Joint Family. Defendant Nos.1 and 2 further plead that there is a vacant site in eastern side to RCC building parallel to Plaint schedule property exclusively belongs to the Defendants, that Plaintiff 5 with a view to grab CDEF marked property as shown in the plaint plan filed the present false suit. Defendant Nos.1 and 2 plead that under the guise of injunction, Plaintiff is trying to occupy the vacant site of the Defendants.

Defendant Nos.1 and 2 plead that the measurements and boundaries shown by Plaintiff are not correct, that Plaintiff has no right, title and interest over the

Plaint schedule property as well as vacant site appended the building of the

Plaintiff, that there is no cause of action arose for the suit, that the suit is not maintainable. Thereby, Defendant Nos.1 and 2 pray to dismiss the suit.

6. Basing on the above pleadings, the trial court has settled the following issues for trial:

1. Whether the Plaintiff has been in juridical possession and

enjoyment of the Plaint schedule property ?

2. If so, Whether is any unjustifiable interference by the

Defendant with such possession of the Plaintiff ?

3. Whether the Plaintiff is entitled for the relief of Permanent Injunction as prayed for ?

4. To what relief ?

7. During the course of enquiry, the trial court recorded the evidence of P.W.1 to P.W.5 and got marked Ex.A1 to Ex.A9 on behalf of Plaintiffs. As per docket order dated 17.07.2017, the chief affidavits of P.W.3 and P.W.4 are eschewed and as per docket order dated 27.11.2017, the chief affidavit of

P.W.6 is eschewed. The trial court further recorded the evidence of D.W.1 to

D.W.4 and no documents are marked on behalf of Defendants.

8. Upon going through the impugned decree and judgment dated 17.09.2018 in O.S.No.87/2014, it is learnt that the trial court has dismissed the suit without costs. Aggrieved by the said judgment and decree, Appellant

No.1/Plaintiff preferred present appeal. Pending Appeal Suit, Appellant

No.1/Plaintiff died. Appellant No.2 and Respondent No.3 are impleaded as 6

L.Rs of deceased Appellant No.1/Plaintiff vide orders in I.A.No.177/2023

dated 02.02.2023.

9. Heard both sides. Perused the material on record.

10. The learned counsel for the Appellants has contended that

Plaintiff has discharged her burden by adducing sufficient oral and documentary evidence, that Defendants though disputed Ex.A1, not adduced any documents in proof of their right or possession over the Plaint schedule property. The learned counsel for the Appellants further contended that Plaint schedule is vacant site and it is abutting to Plaintiffs RCC building and it is in possession and enjoyment of Plaintiff as seen from the evidence brought on record and thereby, prays to allow the appeal.

11. On the other hand, the learned counsel for Respondent Nos.1 and 2 in the written arguments contended that Plaintiff failed to prove

Ex.A1/Settlement deed, that Plaintiff has not examined any of the attestors to prove the due examination of Ex.A1 by the Donor. The learned counsel for

Respondent Nos.1 and 2 relied upon the judgment in K. Laxmanan Vs.

Thekkayili Padmini reported in AIR 2009 SC 951 and in the case in

Govindbhai Chhotabhai Patel Vs. Patel Ramanbhai Mathurbhai reported in AIR 2019 SC 4822, wherein their lordships held that Section 68 of Indian

Evidence Act makes it mandatory to examine one of the attesting witness.

12. The learned counsel for Respondent Nos.1 and 2 further contended that mere suit for injunction without seeking declaration more particularly when the Defendants disputed Plaintiff’s title is not maintainable.

In this regard, the learned counsel for Respondent Nos.1 and 2 has relied on the observations of their lordships in the judgment in the case in Ananthula

Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs and others reported in AIR 2008 SC 2033. The learned counsel for Respondent Nos.1 and 2 further contended that the Plaintiff failed to establish her lawful possession and 7 enjoyment over the suit schedule property and failed to establish illegal interference by the Defendants. The learned counsel for Respondent Nos.1 and 2 further contended that the suit for injunction is not maintainable against

Defendants as their co-sharers. Thereby, the learned counsel for Respondent

Nos.1 and 2 prays to dismiss the Appeal.

13. The following points are formulated for determination of this appeal suit :

1. Whether the Plaintiff has been in juridical possession and enjoyment of the Plaint schedule property by the date of filing of the suit ?

2. If so, Whether is any unjustifiable interference by the

Defendant with such possession of the Plaintiff ?

3. Whether the Plaintiff is entitled for the relief of Permanent Injunction as prayed for ?

4. Whether the impugned decree and judgment dated 17.09.2018 in O.S.No.87/2014 of the Trial Court is sustainable either factually or legally ?

5. To what relief ?

14. Perused the pleadings and evidence let in by both parties before trial court.

POINT Nos.1 to 3 :

15. As Point Nos.1 to 3 are interlinked, they are discussed together.

This being suit for injunction, Plaintiff has to prove her possession and enjoyment over plaint schedule property on the date of filing of the suit.

Plaintiff claims her possession and enjoyment over the suit schedule property by virtue of Ex.A1/Registered Settlement Deed dated 10.04.1987.

16. Plaintiff in her evidence as P.W.1 testified that the father of the

Defendants by name Pampana Veerraju executed Ex.A1/Settlement Deed

dated 10.04.1987 in her favour in respect of Plaint schedule property i.e.,

8 vacant site to an extent of AC 0.02 cents. The evidence of P.W.1 is that she constructed RCC building in part of the Plaint schedule property shown as

ABCD marked property in the plaint plan and left vacant site on eastern side which is shown as CDEF marked property of the plaint plan. The recitals of

Ex.A1 discloses that the father of Defendants by name Pampana Veerraju developed love and affection towards P.W.1, settled the schedule property in her favour. For the first time, P.W.1 in her cross-examination, tried to establish that father of the Defendant Pampana Veerraju intended to foster her and by that time, Defendant Nos.1 and 2 were not born, that father of the Defendant acquired the schedule property through his mother who encroached the same.

This part of evidence of P.W.1 is not averred in the plaint pleadings. As per the settled law, any sort of evidence without the basis of pleadings is not admissible.

17. Even otherwise, except her oral testimony, P.W.1 has not adduced evidence that she was brought up as fostered daughter by the father of Defendants. Though marked, to prove the contents of Ex.A1 and to prove due execution of the transaction covered under Ex.A1/Settlement Deed,

Plaintiff has not examined any of the witnesses/attestors. The written statement pleadings and the evidence of Defendant Nos.1 and 2 examined as

D.W.1 and D.W.4 clearly disclose that Defendants have denied execution of

Ex.A1 transaction and settlement of the schedule property by their father in favour of Plaintiff. A gift deed is required to be compulsory attested in terms of

Section 123 of Transfer of Property Act, 1882. Section 68 of Indian Evidence

Act makes it mandatory to examine one of the attesting witnesses at the proof of suit document if execution is specifically denied. As legality of execution of

Ex.A1/Settlement deed is in dispute, Section 68 of Indian Evidence Act would have some relevance which reads as under:

"Section 68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there 9 be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

18.In the present case on hand, Defendants have denied execution of Ex.A1/Settlement deed and took the plea that it was forged document and they also specifically denied the said documents in their evidence as D.W.1 and D.W.4. Thus, the legality and the validity of Ex.A1 Deed of Settlement was under Challenge. Therefore in the present case on hand, the proviso to Section 68 of the Act does not become operative and functional. In such case, the document has to be proved in terms of Section 68 of the Act. In this regard, it may appropriate to refer to the Judgment in Rosammal

Issetheenammal Fernandez (Dead) by Lrs. And Ors. v. Joosa Mariyan

Fernandez and Ors. [(2000) 7 SCC 189], wherein their lordships held as under:- “7..........In considering this question, whether there is any denial or not, it should not be casually considered as such finding has very important bearing on the admissibility of a document which has important bearing on the rights of both the parties.....It must also take into consideration the pleadings of the parties which has not been done in this case. Pleading is the first stage where a party takes up its stand in respect of facts which they plead.........

x x x x x

11. Under the proviso to Section 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered, is not specifically denied. Therefore, everything hinges on the recording of this fact of such denial. If there is no specific denial, 10 the proviso comes into play but if there is denial, the proviso will not apply. ......."

19. In K. Laxmanan’s case cited supra, their lordships held that there was specific denial of execution of Gift deed and unless any one of the attestor are examined, the gift deed is not proved.

20. In the present case on hand, Plaintiff has filed chief examination affidavits of one Geddada Venkata Lakshmi, Mattaparthi Gowramma and

Appari Ganeswara Rao as P.W.3, P.W.4 and P.W.6. However, the reasons best known to her, the said witnesses not turned up, for which the chief affidavits of P.W.3, P.W.4 and P.W.6 are eschewed by the trial court.

Furthermore, Plaintiff has examined he relative as P.W.2 and her son in law as P.W.5. Though examined P.W.2 and P.W.5, they are neither the witnesses nor attestors of the transaction under Ex.A1. Admittedly, P.W.2 and P.W.5 have no direct knowledge about execution of Ex.A1 by the father of

Defendants in favour of Plaintiff under Ex.A1.

21. On the other hand, Defendant Nos.1 and 2 in their evidence as

D.W.1 and D.W.4 testified that the Plaint schedule property originally belongs to their grandfather by name Venkanna and after the death of their grandfather, the said property was inherited by their father Veerraju being

Kartha of the Joint Hindu Family. D.W.1 and D.W.2 testified that they were born by the date of Ex.A1 and thereby, they being coparceners have got right over the Plaint schedule property, that their father has no exclusive right to execute any such Settlement deed in respect of Plaint schedule property in favour of the Plaintiff.

22. There is no dispute to the fact that one Venkanna is the grandfather and Veerraju who is the executant of Ex.A1 is the father of

Defendant Nos.1 and 2. The recitals of Ex.A1 are silent as to how the Donor got the property. The evidence of P.W.1 is that the mother of the Donor of 11

Ex.A1 encroached the property and after her death, the Donor inherited the said property and thereafter, executed Ex.A1 in favour of P.W.1. Except their self serving statements, both the Plaintiff and Defendant Nos.1 and 2 not adduced any documentary evidence in respect of the nature of the property and the source of the property covered under Ex.A1 to the Donor. When particularly Defendants denied execution of Ex.A1 by their father, it is for the

Plaintiff to prove the said document by examining atleast one of the attesting witnesses as contemplated under Section 68 of the Indian Evidence Act.

Plaintiff in order to prove execution of Ex.A1, has not examined any of the attesting witnesses. Thereby, the transaction under Ex.A1 on which Plaintiff claimed her title and lawful possession over the schedule property is not proved.

23. The next contention of the Defendants is that the measurements of the Plaint schedule property are incorrect. In this regard, the evidence of

P.W.1 is that, she constructed RCC building in the Plaint schedule property by leaving vacant site on further east. Plaintiff also filed plaint plan showing RCC building as ABCD and vacant site as CDEF. Admittedly, Defendant No.1 is northern boundarydhar of Plaint schedule property. For the first time, P.W.1 in her cross-examination testifies that, she constructed her house in part of

Government Poramboku site and in part of Plaint schedule property. P.W.1 failed to depose the extent in which she constructed house and the extent she left vacant site in the Plaint schedule property. P.W.1 admits that she cannot depose the total extent of the property in which she constructed her house in 130 sq. yards. The evidence of P.W.1 is uncertain whether the schedule property is self-acquired property or the ancestral property of the father of the

Defendants. Plaintiff has not took any plea in the plaint pleadings that she constructed house in Government Poramboku site and in part of the Plaint schedule property. As per the Plaint pleadings, Plaintiff claims that she got

AC 0.02 cents of vacant site under Ex.A1 wherein, she constructed RCC building shown as ABCD by leaving vacant site on eastern side of the said 12 building shown as CDEF. There is nothing in the plaint pleadings that the extent in which either ABCD or CDEF plaint plan marked properties covered by Government Poramboku site.

24. P.W.2, one of the relative of P.W.1, also testifies that Plaintiff has constructed house in Government Poramboku Site by occupying the same.

P.W.2 pleaded ignorance about the boundaries of the schedule property.

Thus, the evidence of P.W.1 and P.W.2 in respect of construction of RCC building shown as ABCD in the plaint plan in Government Poramboku site is not supported by plaint pleadings. It seems that Plaintiff by suppressing true facts came to this court for grant of discretionary relief of Permanent

Injunction.

25. The son-in-law of Plaintiff is examined as P.W.5. In his chief examination. P.W.5 testifies that P.W.1 constructed ABCD plaint plan RCC building in part of Plaint schedule property by leaving vacant site on eastern side. In his cross-examination, P.W.5 testified that Plaintiff did not construct her house in the said AC 0.02 cents covered under Ex.A1. This part of evidence of P.W.5 is inconsistent with that of the evidence affirmed by P.W.5 in his chief affidavit filed in lieu of his chief examination.

26. In order to place the ground position of the Plaint schedule property, an Advocate Commissioner by name D. Pallavi was appointed as per orders in I.A.No.81/2014 dated 15.07.2014 to note down the physical features of the Plaint schedule property. The report filed by Advocate

Commissioner discloses that she visited the Plaint schedule property on 05.08.2014 on due service of notices to both counsels on record for the

Plaintiff and for the Defendants. The report filed by the said Advocate

Commissioner discloses about existence of unfinished RCC building with two portions containing three rooms in each portion and there is an existing wall in between ABCD and CDEF plaint plan properties. To prove the physical features of the Plaint schedule property, Plaintiff filed Ex.A3 to 13

Ex.A8/Photographs and Ex.A9/CD. However from the report of Advocate

Commissioner or the photographs marked under Ex.A4 to Ex.A8, the measurements of ABCD and CDEF plaint plan marked properties are not proved. Ex.A4 to Ex.A8/Photographs cannot be considered as the documents in proof of Plaintiff’s possession over the Plaint schedule properties.

Furthermore, Plaintiff has filed Ex.A2 and Ex.A3/House Tax receipts for the years 2013-14 and 2011-12 respectively. Ex.A2 and Ex.A3 discloses that

Plaintiff has paid house tax in the relevant years for the property situated in

Assessment No.230, but it cannot be adduced from Ex.A2 and Ex.A3 that

Plaintiff is in possession and enjoyment of the vacant site abutting to ABCD plaint plan RCC building.

27. The contention of the learned counsel for the Appellants is that

Defendants though disputed Plaintiff’s title, they failed to produce any documents in proof of their title and possession and thereby, Plaintiff is entitled for grant of Injunction. On perusal, Defendant Nos.1 and 2 are examined as D.W.1 and D.W.4 and also got examined third parties as D.W.2 and D.W.3. D.W.2 is a distant relative of Defendant No.1. D.W.2 pleaded ignorance of the boundaries of the schedule property. The evidence of D.W.2 is that he cannot say whether Plaintiff is in possession of RCC building or not, but he testified that Plaintiff got one tiled house in schedule property and after removal of the same, Plaintiff constructed RCC building. The evidence of

D.W.3 and D.W.4 is that Plaintiff constructed house in an extent of AC 0.02 cents belongs to Defendants, that Defendant No.2 constructed thatched house in vacant site i.e., CDEF and left there, that thatched house was collapsed in rains and since then, the site became vacant and kept ideal.

However, there is no such pleadings in the written statement that Defendant

No.2 constructed thatched house in CDEF vacant site, that the said thatched house was collapsed during cyclones and it became vacant site. In the absence of any such pleadings, the evidence of D.W.3 and D.W.4 is not admissible in respect of construction of any thatched house in CDEF plaint 14 plan vacant site and subsequent collapse during cyclone. In the cross- examination of D.W.3, it is elicited that the vacant site situated on eastern side to the building to RCC building belongs to Plaintiff. However, this admission brought in the cross-examination of D.W.3 not entitles the Plaintiff to claim title over CDEF Plaint plan vacant site without there being producing documentary evidence.

28. In respect of Plaintiff’s possession and enjoyment over ABCD

RCC plaint plan building, there is no dispute between the parties. D.W.4 also admits that in the cross-examination that Plaintiff has been residing in her building from past 15 years. The only dispute is in respect of CDEF vacant site abutting on the eastern side of the RCC building of the Plaintiff. As admitted by P.W.1, ABCD and CDEF plaint plan schedule property includes

Government Poramboku site. However, Plaintiff failed to give measurements and the extent of such encroached Government Poramboku site. The evidence of Plaintiff is vague and inconsistent in respect of her right over

Plaint schedule property to an extent of AC 0.02 cents Whether it is the vacant site covered under Ex.A1/Settlement deed or covered under Government

Poramboku site. Simply because Defendants failed to establish their right over the Plaint schedule property, the suit cannot be decreed in favour of Plaintiff.

Furthermore, in the judgment in Chandra and Others Vs. G. Krishnappa reported in 2023 LIVE LAW KAR 323, their lordships held:

“In a suit for Bare Injunction, it is for the person who approaches the court to prove his lawful possession for the suit schedule property”

29. Furthermore, in the judgment in The Tehsildar, Urban

Improvement Trust and Anr. Vs. Ganga Bai Menariya (dead) through

L.Rs and others reported in 2024 Livelaw (SC) 153, their lordships held:

“A suit simpliciter for injunction may not be maintainable as the title of the property of Plaintiff/Respondent was disputed by the Appellants/Defendants. In such a situation, it was required for the 15

Respondent/Plaintiff to prove the title of the Property while praying for injunction”

30. In the landmark judgment in Ananthula Sudhakar Vs. P. Buchi

Reddy (dead) by LRs and others reported in AIR 2008 SC 2033, their lordships held:

“The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled.

We may refer to them briefly.

1) 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. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

31. In the present case on hand, P.W.1 not filed any link document to show that as to how the executants of Ex.A1 acquired the schedule property.

Furthermore, the plaint pleadings also not depict about the extent of the 16

Government Poramboku site in which Plaintiff constructed house. The evidence of P.W.1 and Plaint pleadings not reveal the extent of Government

Poramboku site and the extent covered under Ex.A1 in ABCD, CDEF marked properties. Thus, the plaint pleadings are vague in respect of extent of ABCD

Plaint plan marked property and the nature of the said property. Furthermore, the Advocate Commissioner’s report dated 12.08.2014 also not disclose the measurements of ABCD and CDEF marked properties. The report further disclose that in between ABCD RCC building and CDEF vacant site, there is a wall in existence on eastern side. Though filed EX.A2 to A9, are not helpful to the Plaintiff to prove her possession over the schedule property. Adding to this, as discussed supra, Plaintiff failed to prove Ex.A1/Settlement Deed on which she claims her right of possession over Plaint schedule property.

32. From the aforesaid discussion, Plaintiff failed to prove her right of possession over Plaint schedule property. Plaintiff also failed to allege and prove the day or at least month and year from which Defendants allegedly interfered and tried to dispossess Plaintiff from the schedule property. In the absence of proof of lawful possession or in the absence of proof of alleged threat of dispossession and in view of the inconsistent pleadings and evidence adduced by the Plaintiff and in the absence of proof of Ex.A1, Plaintiff is not entitled for grant of Permanent Injunction against the suit schedule property.

Point Nos.1 to 3 are answered against Plaintiff.

POINT No.4:

33. In view of the discussion and findings given supra for Point Nos.1 to 3, it is held that the trial court has rightly discussed the oral and documentary evidence and arrived at just conclusion by dismissing the suit.

There is no need to interfere with the trial court judgment and decree dated 17.09.2018 in O.S.No.87/2014. Point No.4 is answered against Appellants.

17

POINT No.4:

34. In the result, the appeal is dismissed without costs by confirming the decree and judgment dated 17.09.2018 in O.S.No.87/2014 on the file of I

Additional Junior Civil Judge’s court, Rajamahendravaram.

Dictated to the Stenographer Gr.III, transcribed by him, corrected and

pronounced by me in the open Court, this the 14 th day of October, 2024.

Principal Civil Judge (Senior Division),

Rajamahendravaram.

APPENDIX OF EVIDENCE

No additional Oral or Documentary evidence adduced on either side.

-FAIR- PCJ (SD)

Copy to I Additional Junior Civil Judge’s court, Rajamahendravaram.

IN THE COURT OF PRINCIPAL ASSISTANT SESSIONS JUDGE :: EAST

GODAVARI DISTRICT AT RAJAMAHENDRAVARAM.

Present: Smt. M. Anuradha,

Principal Assistant Sessions Judge, Rajamahendravaram

Friday, the 18th day of October, 2024.

SESSIONS CASE No.171 of 2024

(PRC.No.27/2022 on the file of the court of II Additional Judicial Magistrate of

First Class, Rajamahendravaram connected with Cr.No.466/2021 of S.H.O.,

Prakash Nagar P.S.)

Between:

State – Sub-Inspector of Police, Prakash Nagar P.S., Rajamahendravaram. … Complainant.

And:

1. Gurrala Surya Teja, S/o. Suresh, aged 27 years, D.No.64-26-18, Indira Nagar, Rajamahendravaram. Now at P & T Colony, Near Libarti School, Rajamahendravaram.

2. Karri Nukaraju, S/o. Gangaraju, aged 20 years, D.No.4-46, Kedarlanka Village, Anjyaneya Temple, Kapileswarapuram Mandal, East Godavari District. Now at D.No.13-12/1, Radham Gate Street, Kotilingala Peta, Rajamahendravaram, Cell: 62816 63523. … Accused.

This case is coming on 17.10.2024for final hearing before me in the presence of Additional Public Prosecutor for the State-Complainant; and

Sri. P. Rama Raju, M. Satya Padmini and Associates, Advocates for A1

and A2, and on perusal of material available on record, upon hearing the arguments of both sides and having stood over for consideration till this day, this court delivered the following:

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

1. The Sub-Inspector of Police, Prakash Nagar Police Station filed charge sheet against Accused Nos.1 and 2 for the offence punishable under

Section 307 r/w 34 of Indian Penal Code (herein after referred as I.P.C) in

Crime No.466/2021 of Prakash Nagar Police Station.

2. The brief facts of the Prosecution case reads as follows:

It is averred that on 21.11.2021 at about 6.20 P.M., L.W.1/Kadithi

Lakshmi Narayana and his cousin brother i.e., L.W.2/Bottu Siva Kumar went to Menaka Bar situated at Opposite RTO Office, Rajamahendravaram and while they were having alcohol, A1 and A2 along with L.W.6/Kudipudi

Venkatesh @Bandla Ganesh @Bandla Venkatesh picked up quarrel with

L.W.1/Kadithi Lakshmi Narayana. It is further averred that A1 became furious in drunken state and assaulted L.W.1/Kadithi Lakshmi Narayana by hitting a blow on his face and also proclaimed to kill L.W.1/Kadithi Lakshmi Narayana and subsequently, A1 also assaulted on the head of L.W.1/Kadithi Lakshmi

Narayana with beer bottle with an intention to kill him and A2 also hit on his head with Glass soda by shouting to kill him. It is further averred that L.W.1 deceived severe bleeding injuries on his head and forehead and thereafter, A1 and A2 together beat L.W.1/Kadithi Lakshmi Narayana and left from the scene of offence. Subsequently, L.W.2/Bottu Siva Kumar shifted the injured to

Government Hospital, Rajamahendravaram for treatment. Outpost Police of

Government General Hospital (GGH), Rajamahendravaram recorded the statement of L.W.1/Kadithi Lakshmi Narayana and forwarded the same to

S.H.O., Prakash Nagar Police Station. On receipt of the same, L.W.11/P.

Prema Raju, the then Sub-Inspector of Police, Prakash Nagar P.S., registered a case in Crime No.466/2021 under Section 324 r/w 34 of IPC and issued

FIR. During the course of investigation, L.W.11/P. Prema Raju examined

L.W.1/Kadithi Lakshmi Narayana and L.W.2/Bottu Siva Kumar and proceeded to scene of offence and prepared rough sketch and prepared Scene

Observation Report and seized broken glass bottles and soda bottles. The

Investigation Officer also examined listed Prosecution witnesses and photographed scene of offence. As the Investigation discloses the intention of

Accused to kill the injured, the Section of law was altered from Section 324 r/w 34 of IPC to Section 307 r/w 34 of IPC by Investigation Officer by filing memo to that affect. The Investigation Officer also deleted the name of Bandla

Ganesh, the alleged Accused No.3 from the FIR and shown him as one of the listed Prosecution Witnesses by recording his statement under Section 161

Cr.P.C. The Investigation Officer arrested A2 on 24.11.2021 and arrested A1 on 25.11.2021 and produced them before II Additional Judicial Magistrate of

First Class, Rajamahendravaram for his remand. On receipt of information,

L.W.11/P. Prema Raju obtained Wound Certificates in respect of L.W.1/Kadithi

Lakshmi Narayana from L.W.9/Kandhula Vijaya Lakshmi with an opinion that the injuries are grievous in nature. Thereby, L.W.11/P. Prema Raju filed charge sheet against A1 and A2 for the offence punishable under Section 307 r/w 34 of IPC.

3. The learned II Additional Judicial Magistrate of First Class,

Rajamahendravaram has taken cognizance for the offence punishable under

Section 307 r/w 34 of I.P.C against A1 and A2 vide PRC.No.27/2022 in

Cr.No.466/2021 of Prakash Nagar Police Station and committed the same to the Hon’ble Court of District and Sessions, Rajamahendravaram as the offence involved in this case under Section 307 I.P.C is exclusively triable by the court of Sessions.

4. After committal to the Hon’ble Court of Sessions,

Rajamahendravaram, this case is assigned with Sessions Case No.171/2024 and made over to this court i.e., Principal Assistant Sessions Judge,

Rajamahendravaram for disposal according to law.

5. On receipt of the record, summons were issued to A1 and A2. On appearance of A1 and A2, heard the learned Additional Public Prosecutor on charges. A1 and A2 are examined under Sec.228 (1) (b) Cr.P.C. Charges framed against A1 and A2 for the offence punishable under Section 307 r/w 34 of I.P.C, read over and explained to them in Telugu. A1 and A2 having understood the charges, pleaded not guilty and claimed for trial.

6. To prove the guilt of the Accused, Prosecution has examined

P.W.1 to P.W.3 and got marked Exs.P1 to P11 and M.O.1.

7. After closure of prosecution evidence, A1 and A2 are examined under Section 313 Cr.P.C by explaining the incriminating evidence brought in the evidence of prosecution witnesses. Having understood the said evidence,

A1 and A2 denied the same and reported no defence evidence.

8. Heard the learned Additional Public Prosecutor and the learned counsels appeared for A1 and A2.

9. Perused the material placed on record.

10. Now the point for determination is :

Whether the Prosecution is able to prove the guilt of A1 and A2 for the offence punishable under Section 307 r/w 34 of I.P.C beyond all reasonable doubt ?

POINT:

11. The de-facto complainant and injured is examined as P.W.1.

P.W.1 testified that on 21.11.2021, he along with L.W.2/Bottu Siva Kumar went to Menaka Bar situated near RTO Office, Rajamahendravaram at about 6.30

P.M. to 7.00 P.M., that while they were having alcohol, some Galata took place in the said bar. The evidence of P.W.1 is that some unknown persons throw beer bottles and tables and thereby, he received head injuries in the said

Galata. P.W.1 testified that he became unconscious and was shifted to

Government Hospital, Rajamahendravaram by L.W.2/Bottu Siva Kumar and

Police obtained signatures on Statement. P.W.1 admitted his signature on

Statement dated 21.11.2021 but denied the contents of the said statement for which the signature of P.W.1 on the statement dated 21.11.2021 is marked as

Ex.P1. As P.W.1 resiled from his previous Section 161 Cr.P.C Statement, he was declared as hostile witness to the Prosecution.

12. In the cross-examination conducted by learned Additional Public

Prosecutor, P.W.1 denied previous Section 161 Cr.P.C Statement and same is marked as Ex.P2. Thus, there is no incriminating evidence brought on record in the testimony of P.W.1 against A1 and A2.

13. The Prosecution further examined one of the eye witnesses as

P.W.2. The evidence of P.W.2 is that about three years back, there was some

Galata took place on Menaka Bar, Rajamahendravaram at about 6.30 P.M., and some unknown offenders hurled beer bottles and thrown tables. On that

P.W.1 received head injury and P.W.2 shifted P.W.1 to Government Hospital,

Rajamahendravaram. As P.W.2 also resiled from his previous Section 161

Cr.P.C Statement, he was declared as hostile witness to the Prosecution.

14. In the cross-examination conducted by learned Additional Public

Prosecutor, P.W.2 denied the previous Section 161 Cr.P.C Statements and the same is marked as Ex.P3. Thus, from the evidence of P.W.2 also, Prosecution failed to elicit any incriminating evidence against A1 and A2.

15. The Investigation Officer is examined as P.W.3. The evidence of

P.W.3 is that it was on 21.11.2021 at about 10.30 P.M., he received

Ex.P4/Hospital Intimation along with Ex.P6/Statement of P.W.1 from the

Outpost Constable of Government Hospital, Rajamahendravaram and registered it as case in Crime No.466/2021 under Section 324 r/w 34 of IPC and issued Ex.P5/Original FIR. The evidence of P.W.3 is that he visited scene of offence in the presence of Mediators and observed it and prepared

Ex.P8/Scene Observation Report and Ex.P7/Rough Sketch and also photographed Scene of Offence in Ex.P9/CD with 6 Photographs. The evidence of P.W.3 is that he seized M.O.1/Broken Glass beer bottle and Soda bottle from the scene of offence in the presence of mediators. P.W.3 testified that after recording the statement of the injured and eye witness, he has altered Section of law from Section 324 r/w 34 of IPC to Section 307 r/w 34 of

IPC by submitting Ex.A10/Alteration memo to that effect. There is no dispute to the fact that P.W.3 arrested A1 on 25.11.2021 and A2 on 24.11.2021 and produced them before II Additional Judicial Magistrate of First Class,

Rajamahendravaram for remand.

16. The evidence of P.W.3 is that initially, P.W.1 stated that one

Kudipudi Venkatesh @Bandla Ganesh @Bandla Venkatesh is also involved in this offence and as such, the said Bandla Ganesh is arrayed as A3 in the FIR.

P.W.3 testified that after verifying the CC TV footage collected from the scene of offence, the presence of A3 by name Bandla Ganesh is not proved and thereby, he deleted the name of A3 from FIR. From this witness, the

Prosecution has exhibited Wound Certificate of P.W.1 and the same is marked as Ex.P11.

17. There is no dispute to the fact that P.W.1 and P.W.2 were present at the scene of offence i.e., Menaka Bar, Rajamahendravaram on 21.11.2021 in between 6.30 P.M. to 7.00 P.M. There is also no dispute to the fact that

P.W.1 received head injury on 21.11.2021. However, from the evidence of

P.W.1 and P.W.2, Prosecution failed to elicit any incriminating evidence against Accused Nos.1 and 2. There is no whisper in the testimonies of P.W.1 and P.W.2 that A1 and A2 in furtherance of common intention beat P.W.1 with beer bottle and soda bottle on his head with an intention to kill him. As

Material witnesses turned hostile to the Prosecution case, the evidence of

P.W.3, who is the Investigation Officer, is not helpful to the Prosecution to prove the guilt of the Accused for the offence charged. Thus, from the aforesaid evidence, Prosecution failed to prove the guilt of the Accused Nos.1 and 2 for the offence punishable under Section 307 r/w 34 of IPC. Thus, considering the facts and evidence brought on record, it is concluded that the

Prosecution failed to prove the guilt of A1 and A2 beyond all reasonable doubt. Point is answered against the Prosecution.

18. In the result, A1 and A2 are found not guilty for the offence punishable under Section 307 r/w 34 of I.P.C and they are acquitted under

Section 235 (1) of Cr.P.C for the said offences. Bail bonds of Accused Nos.1 and 2, shall stand cancelled after lapse of six (6) months as contemplated

Under Section 437-A Cr.P.C. M.O.1 shall be destroyed after expiry of appeal time.

Dictated to Stenographer (Grade III), transcribed by him, corrected and

pronounced by me in open Court, on this the 18 th day of October, 2024.

Principal Assistant Sessions Judge,

Rajamahendravaram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution:

P.W.1/Kadithi Lakshmi Narayana.

P.W.2/Bottu Siva Kumar.

P.W.3/P. Prema Raju.

For Defence: None.

EXHIBITS MARKED

For Prosecution:

Ex P1: Signature of P.W.1 on the Statement dated 21.11.2021.

Ex.P2: Section 161 Cr.P.C Statement of P.W.1 dated 21.11.2021.

Ex.P3: Section 161 Cr.P.C Statement of P.W.2 dated 21.11.2021.

Ex.P4: Hospital Intimation dated 21.11.2021.

Ex.P5: Original F.I.R in Crime No.466/2021 of Prakash Nagar P.S dated 21.11.2021.

Ex.P6: Statement of P.W.1 dated 21.11.2021.

Ex.P7: Rough Sketch.

Ex.P8: Scene Observation Report dated 22.11.2021.

Ex.P9: CD with 6 photographs.

Ex.P10: Alteration Memo.

Ex.P11: Wound Certificate of P.W.1.

For Defence: Nil.

MATERIAL OBJECTS:

MO.1/Broken Glass Beer bottle and Soda Bottle.

PASJ -FAIR-

CALANDER

IN THE COURT OF PRINCIPAL ASSISTANT SESSIONS JUDGE :: EAST

GODAVARI DISTRICT AT RAJAMAHENDRAVARAM.

Present: Smt. M. Anuradha,

Principal Assistant Sessions Judge, Rajamahendravaram

Friday, the 18th day of October, 2024.

SESSIONS CASE No.171 of 2024

(PRC.No.27/2022 on the file of the court of II Additional Judicial Magistrate of

First Class, Rajamahendravaram connected with Cr.No.466/2021 of S.H.O.,

Prakash Nagar P.S.)

Complainant: Accused:

State – Sub-Inspector of Police, 1. Gurrala Surya Teja, S/o. Suresh, Prakash Nagar P.S., aged 27 years, D.No.64-26-18, Rajamahendravaram. Indira Nagar, Rajamahendravaram. Now at P & T Colony, Near Libarti School, Rajamahendravaram.

2. Karri Nukaraju, S/o. Gangaraju, aged 20 years, D.No.4-46, Kedarlanka Village, Anjyaneya Temple, Kapileswarapuram Mandal, East Godavari District. Now at D.No.13-12/1, Radham Gate Street, Kotilingala Peta, Rajamahendravaram, Cell: 62816 63523.

Prosecution conducted by: Accused defended by:

Additional Public Prosecutor, Sri. P. Rama Raju, M. Satya Padmini

Rajamahendravaram. and Associates, Advocates for A1 and A2.

Offence:307 r/w 34 of IPC.

Plea of the accused:Not guilty

Finding of the Judge: In the result, A1 and A2 are found not guilty for the offence punishable under Section 307 r/w 34 of I.P.C and they are acquitted under

Section 235 (1) of Cr.P.C for the said offences. Bail bonds of Accused

Nos.1 and 2, shall stand cancelled after lapse of six (6) months as contemplated Under Section 437-A

Cr.P.C. M.O.1 shall be destroyed after expiry of appeal time.

DATES OF

Offence : 21.11.2021. Complaint : 21.11.2021. Apprehension of A1 : 25.11.2021. Apprehension of A2 : 24.11.2021. Commencement of trial : 07.10.2024. Close of Trial : 17.10.2024. Sentence/Order : 18.10.2024.

Explanation for Delay:

The entire record was made over to this court by Hon'ble Prl. Sessions

Judge's Court, East Godavari, Rajamahendravaram for disposal according to

law on 27.05.2024. Charges were framed against the accused on 09.09.2024. Trial of the case was commenced on 07.10.2024 and ended on 17.10.2024. Accused examined under Section 313 Cr.P.C on 17.10.2024 and arguments were heard on 17.10.2024 and judgment is pronounced on 18.10.2024. Hence, there is no delay.

Principal Asst. Sessions Judge,

Rajamahendravaram.

Copies submitted to:

1. The Hon'ble Registrar (Judl.) Hon'ble High Court of Andhra Pradesh, Amaravathi.

2. The Hon'ble District Judge, East Godavari, Rajamahendravaram.

3. The Directorate of Prosecution, Hyderabad, DGP Complex, Hyderabad.

4. The Superintendent of Police, Kakinada.

5. The Collector, East Godavari District, Kakinada.

6. The II Additional Judicial Magistrate of First Class, Rajamahendravaram.

1

IN THE COURT OF PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) ::

RAJAMAHENDRAVARAM

Present: Smt. M. Anuradha,

PRINCIPAL CIVIL JUDGE (SENIOR DIVISION), RAJAMAHENDRAVARAM

Monday, the 21st day of October, 2024.

O.S. No. 49/2023

Between:

Sri Ratnam Veera Rajesh Babu, S/o. Veerabbai, aged 38 years, Business,

Sriram Nagar, Rajamahendravaram.

… Plaintiff.

And:

Smt. Panthangi Padmavathi, W/o. Venkateswara Rao, aged 54 years, House wife, D.No.86-4-27, Vadrevu Nagar, Tilak Road, Rajamahendravaram.

… Defendant.

This suit is coming on 21.10.2024 before me for final hearing in the presence of Sri. D.V.V. Trinadh, Advocate for Plaintiff and Sri. Venna Kumar

Swamy, Advocate for Defendant, and the matter having stood over for consideration till this day and this Court made the following:

J U D G M E N T

1. Plaintiff filed the present suit for recovery of an amount of

Rs.20,44,000/- (Rupees Twenty lakhs Forty Four thousand only) together with subsequent interest and costs of the suit.

2. The brief facts of the Plaint reads as follows :

It is averred that Defendant borrowed an amount of

Rs.12,00,000/- (Rupees Twelve lakhs only) from the Plaintiff on 06.08.2018 for her family expenses and agreed to repay the same together with interest 2 @24% p.a. Plaintiff pleads that Defendant executed demand Promissory note in his favour on the even date. Plaintiff further pleads that inspite of his repeated demands, Defendant failed to repay the amount due under the

Promissory note, for which Plaintiff got issued legal notice dated 15.09.2020 to the Defendant demanding her to repay the amount. Plaintiff pleads that

Defendant received the said notice but not chosen to give any reply. As such,

Plaintiff filed the present suit for recovery of the debt due under the suit

Promissory note.

3. On receipt of summons, Defendant appeared and filed Written

Statement which reads as follows:

Defendant admits that she borrowed an amount of Rs.12,00,000/- (Rupees Twelve lakhs only) from Plaintiff on 06.08.2018. Defendant took the plea that she has discharged major portion of amount in installment basis and still there is a balance of Rs.5,00,000/- (Rupees Five lakhs only), that she is ready to pay the said amount in installment basis. Thereby, Defendant prays to pass necessary orders accordingly.

4. Basing on the pleadings of both the parties, the following issues were settled for trial:

1. Whether the Suit Promissory note is true, valid and binding on the Defendant ?

2. Whether Plaintiff is entitled for recovery of suit claim against Defendant ?

3. To what relief?

5. On 18.10.2024, the following Additional Issues are framed:

1. Whether Defendant discharged major portion of amount due under the Suit Promissory note in installments ?

3

2. Whether Defendant is only liable to pay balance of Rs.5,00,000/- (Rupees Five lakhs only) to the Plaintiff under the Suit Promissory note ?

6. During the course of trial, Plaintiff is examined as P.W.1 and

Ex.A1 to Ex.A3 are marked. On behalf of Defendant, D.W.1 is examined and no documents are marked on behalf of Defendant.

7. Heard the learned counsels for Plaintiff and for the Defendant.

Perused the record.

ISSUE No.1:

Whether the Suit Promissory note is true, valid and binding on the Defendant ?

8. The evidence of P.W.1 is that Defendant borrowed an amount of

Rs.12,00,000/- (Rupees Twelve lakhs only) from him by executing

Ex.A1/Promissory note in favour of P.W.1 on 06.08.2018. Defendant in her evidence as D.W.1 admits that she borrowed an amount of Rs.12,00,000/- (Rupees Twelve lakhs only) on 06.08.2018 for her family expenses from the

Plaintiff. Defendant not specifically denied execution of Ex.A1/Promissory note in her pleadings and in her evidence. As Defendant admits borrowal of

Rs.12,00,000/- (Rupees Twelve lakhs only) on 06.08.2018, Ex.A1 is true, valid document and binding on the Defendant. Issue No.1 is answered in favour of

Plaintiff.

ADDITIONAL ISSUE Nos.1 and 2:

Whether Defendant discharged major portion of amount due under the Suit Promissory note in installments ?

Whether Defendant is only liable to pay balance of Rs.5,00,000/- (Rupees Five lakhs only) to the Plaintiff under the Suit Promissory note ?

4

9. By admitting borrowal of Rs.12,00,000/- (Rupees Twelve lakhs only) under Ex.A1, Defendant took the plea of discharge of major portion of amount by way of cash in installment basis and also took the plea that she is liable to pay only an amount of Rs.5,00,000/- (Rupees Five lakhs only) to the

Plaintiff. D.W.1 testifies that she is ready to pay the balance amount of

Rs.5,00,000/- (Rupees Five lakhs only) in principal in installments basis and thereby prays to pass necessary orders. Ex.A2/Office copy of Legal notice disclose that P.W.1 demanded the Defendant for repayment of the total debt due under Ex.A1. Ex.A3/Postal Acknowledgement support the evidence of

P.W.1 that Defendant received legal notice. Defendant also not denied issuance of legal notice by the Plaintiff and receiving of the said legal notice. If really Defendant has repaid major portion of amount due under Ex.A1 to the

Plaintiff, she might have issued Reply notice to the Plaintiff.

10. In the cross-examination, D.W.1 admits that she do not have any receipts in proof of discharge of major portion of amount due under Ex.A1. In the cross-examination, P.W.1 denied the suggestion that Defendant discharged an amount of Rs.7,00,000/- (Rupees Seven lakhs only) with interest to him. Though Plaintiff denied discharge of the debt due under Ex.A1,

Defendant not chosen to adduce any document or receipt in proof of her plea of discharge. In a suit for money, Defendant admitting the receipt of money but pleads discharge of debt, burden lies on the Defendant to prove such plea.

11. In the judgment in Anitha Rani Vs. Ashok Kumar and others reported in Live Law 2021 SC 746, their lordships held:

“A party who admits receipt of certain amount of money on a particular date and pleads discharge by way of a full and final settlement at a latter date, is the one on whom the onus lies.”

12. In the present case on hand, Defendant took the plea of discharge of major portion of the amount due under Ex.A1. However, 5

Defendant neither specifically pleaded nor deposed the specific amounts and the dates on which she paid major portion of amount to the Plaintiff.

Furthermore, except her self-serving testimony, D.W.1/Defendant not chosen to adduce either oral or documentary evidence in proof of her defence. Thus, the plea of Defendant that she has discharged major portion of the amount due under the Ex.A1 and the plea of Defendant that she is only liable to pay

Rs.5,00,000/- (Rupees Five lakhs only) under Ex.A1, is not proved. Additional

Issue Nos.1 and 2 are answered against Defendant.

ISSUE No.2:

Whether Plaintiff is entitled for recovery of suit claim against Defendant ?

13. From the aforesaid discussion and from the oral evidence of

P.W.1 and from the document under Ex.A1 and from the admissions brought in the testimony of D.W.1, Plaintiff has proved that Ex.A1 is true, valid and binding on the Defendant and the debt due under Ex.A1 is not discharged.

Thereby Plaintiff is entitled to recover the suit claim. Issue No.2 is answered in favour of Plaintiff.

ISSUE No.3:

To what relief ?

14. In the result, the suit is decreed with costs for a sum of

Rs.20,44,000/- (Rupees Twenty lakhs Forty Four thousand only) with subsequent interest @12% p.a. from the date of filing of the suit till the date of decree and at 6% p.a. from the date of decree till the date of realization of

principal amount of Rs.12,00,000/- (Rupees Twelve lakhs only). Decree

should be prepared accordingly.

Dictated to Stenographer (Grade-III), transcribed by him, corrected and

pronounced by me in the open Court, on this the 21 st day of October, 2024.

Principal Civil Judge (Senior Division),

Rajamahendravaram 6

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:

P.W.1 : Ratnam Veera Rajesh Babu.

For Defendant:

D.W.1 : Panthangi Padmavathi.

DOCUMENTS MARKED:

For Plaintiff:

Ex.A1 : Original Promissory note dated 06.08.2018 executed by the Defendant in favour of Plaintiff for Rs.12,00,000/-.

Ex.A2 : Office copy of Registered Legal notice got issued by Plaintiff to Defendant dated 15.09.2020.

Ex.A3 : Postal Acknowledgement.

PCJ (SD)

-FAIR-