Sri.M.Satish Kumar

O.S.No. 1175/2007

1 dt. 20-4-2012

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE,

S.P.S.R. Nellore.

Friday, the Twenteith(20th) day of April, 2012.

PRESENT; SRI M. SATISH KUMAR, B.A., LL.B.,

I Additional Junior Civil Judge,

Nellore.

O.S.No. 1175/2007

Between:

Tupalli Kumar.

... Plaintiff.

And:

Commissioner, Municipal Corporation,

Nellore. ... Defendant.

This Suit coming on 29-2-2012 before me for final disposal in the presence of Sri Chinta Srirama Murthy, Advocate for the plaintiff sand of Sri S.Sree Ramulu, Advocate for defendant, and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This suit filed by the plaintiff for grant of permanent injunction restraining the defendant from demolishing or otherwise interfering with the schedule mentioned building and for costs.

2.The brief averments of the plaint is that the plaintiff is the owner of the schedule mentioned property situated in Nellore Municipal limits, Vedyapalem, Chandramouli Nagar. The said building is part of R.R.

Apartments belonging to Mudduluru Sunitha, Wife of Sanjiva Raju,

Divisional Engineer, High ways, at present residing at R.R.Towers,

Buvaneswari Nagar, 2nd cross near Kempapura Hebbal post, Bangalore. The plaintiff learnt that she had purchased some site and obtained permission

O.S.No. 1175/2007

2 dt. 20-4-2012 from the Director of Town planning and Country Planning, Hyderabad for construction of 30 apartments, but only constructed 24 apartments and two pent houses and one in the ground floor and was sold to the plaintiff under a

Registered sale deed dated 29-9-2000 for Rs.3,15,000/-. However, got the amount reduced to Rs. 2,23,000/- for the purpose of avoiding stamp and registration expenses at the instance of the vendor. By the time of the sale deed, the said apartment was incomplete and unfinished. The said Sunitha had represented that the construction is made in accordance with Town

Planning Rules and assured the plaintiff that she did not alienate the property to anybody else and in case if any dispute arises she will be held liable for the sale consideration with person and property and clear off the dispute with her own expenses and confirmed the title of the plaintiff for the schedule mentioned apartment, and accordingly she had made recitals in the sale deed. In addition to the said schedule mentioned building, she had also sold item No.2 of the plaint schedule property which was only a vacant site for the purpose of construction of bath room under an Agreement of sale

dated 29-9-2000.

3.The plaintiff further submits that having believed the representations made by the said Sunitha and her husband and having purchased the same had completed the rest of the finishing work and constructed latrine in item No.2 of the schedule property and spent a sum of

Rs.40,000/- and occupied the premises. In all the plaintiff has incurred a sum of Rs.4,00,000/- for purchasing and completing the construction and he is a bonafide purchaser for valuable consideration without knowledge of any defect in title. The defendant without making any notification or publication gave a notice dated 5-7-2007 informing the plaintiff that the site

O.S.No. 1175/2007

3 dt. 20-4-2012 where the schedule mentioned apartment was constructed was earmarked for parking area and that the vendor of the plaintiff had executed an

Agreement in favour of the defendant that she has to use it only for parking place and in violation of the alleged agreement executed by the vendor, the stilt floor was constructed i.e., the schedule mentioned house was constructed, that as per the Writ application 1159/2006, the Hon'ble high

Court directed to remove the constructions in the stilt floor and therefore, directed the plaintiff to remove the same within7 days thereon. On 24-7-2007 the plaintiff gave reply notice.

4.The plaintiff further submits that he is not aware of any alleged agreement alleged to have been executed by his vendor in favour of the defendant, that the defendant had not made any notification or publication earlier, that the decision of the Hon'ble High Court in Writ Application 1559/2006 is dated 29-11-2006, where as the schedule mentioned apartment was constructed and purchased by the plaintiff long back i.e., on 29-9-2000 and therefore, the decision of the Hon'ble high Court of Andhra Pradesh had no retrospective effect and does not apply to the building in question and as per the notice of the defendant, assuming for a moment that there is any violation which the plaintiff do not admit the defendant should proceed against the vendor as per the observations in the Writ Application.

Accordingly, in the reply sent by him, the plaintiff has mentioned the name and address of his vendor and also requested him to proceed against his vendor. Without taking any action against his vendor if really the defendant is entitled to do so, sent another notice dated 16-7-2007 which was received by the plaintiff after he has sent the reply notice directing the plaintiff to demolish the same within 24 hours, other-wise they will demolish the same.

O.S.No. 1175/2007

4 dt. 20-4-2012

He is not the person who made the schedule mentioned apartment in the stilt area and it is his vendor that made the construction and if really, there is any such violation, which the plaintiff do not admit, the action should be only against his vendor and the defendant cannot take a drastic action of demolishing the stilt floor. There is any amount of space on the north-west and the vendor had also constructed a shop room facing on the south abutting road and she is still in possession and enjoyment of the same having let out the same for 'provision stores' for a fabulous rent.

5.The plaintiff further submits that the notices given by the defendant to demolish the schedule mentioned building is ultra virus, illegal and they cannot proceed against the plaintiff and demolish the schedule mentioned building and the defendant cannot therefore, take law into his hands under the guise of the decision of the A.P. High Court which do not apply to the building in question. The defendant also laid municipal taxes for the schedule mentioned building since the date of the purchase and the defendant has been receiving the same and issuing receipts. Therefore the defendant cannot play hot and cold. Hence the suit.

6.The defendant filed written statement, denying all the allegations made in the plaint and submitted that the plaintiff purchased the plaint schedule property illegally and unauthorisedly without obtaining proper permission. The original owner Sunitha has not obtained any approval with regard to the plaint schedule stilt portion which is meant for the parking place only. The defendant denied that he is without making ay notification or publication gave notice dated 5-7-2007. In fact, after verifying the said construction work and found that the said apartment was constructed in accordance with the approval of the building apartment plan.

O.S.No. 1175/2007

5 dt. 20-4-2012

The schedule mentioned apartment was constructed as earmarked for parking are and that the plaintiff has not got any right, title and interest over the said portion. Thus the defendant got issued notice dated 5-7-2007 directing theplainti9ff to remove such deviations and violations. But the plaintiff without giving proper explanation approached the Court with a view to take shelter under the law by suppressing all the material facts.

7.The defendant further submits that in fact the original owner was submitted an application for the construction of apartment. The defendant approved the same subject to usual conditions. Accordingly the said Sunitha given an Agreement on non-judicial stamped worth of rs.100/- undertaking that she will not construct any permanent structures in parking place of the apartment. But the plaintiff has purchased the deviated and violated portion in the designated parking place i.e., stilt area which violates the building rules and apartment conditions.

8.The defendant further submits that as per G.O.Ms.No.422 and 423 MA dated 31-7-1998 Order No.1.1.IV says that the owner shall file with the local authority an undertaking, stating that he will not violate any rules, building bye laws, and that in case of violation, the local authorities would be at liberty to remove summarily the deviations at owner cost without prior notice. Their Hon'ble High Court also given order in W.P.No.15591/06 to remove violation structures in parking places. The City Planning staff of

Nellore Municipal has explained everything to the plaintiff about the situation of the apartment. After that the defendant has given notices giving sufficient time for removal of the violation structures in stilt area. The defendant has got right to levy property tax, on any building or any other house in any place within Municipal Corporation limits of Nellore, as per

O.S.No. 1175/2007

6 dt. 20-4-2012 provisions of the Municipal Corporation Act and rules and also the defendant has got right to levy property tax on any unauthorised constructions also, so, the plaintiff should not predict(assume) that the unauthorised construction is regularised. There is no cause of action for the suit and the alleged one is bad in law as the plaintiff purchased the plaint schedule stilt building in the parking place, which is illegal and not excused under law and prays to dismiss the suit with exemplary costs.

9.Basing on the above pleadings, the following issues have been settled for trial:

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

2. To what relief?

10.. During the course of trial, on behalf of the plaintiff, Pws.1 and 3 were examined and got marked Exs.A-1 to A-13 and also Ex.X-1 marked through Pw.2.. On behalf of the defendant, none were examined and no documents were marked.

11...Heard both sides.

12. ISSUE NO.1:

The case of the plaintiff is that he is the owner of the plaint schedule property. The plaint schedule property is is part of R./r. Apartments belonging to Mudduluru Sunitha. The plaintiff further contended that he came to know that she purchased some site and obtained permission of the

Director of Town Planning and Country Planning, Hyderabad for construction of 30 apartments, but only constructed 24 apartments and two pent houses and one in the ground floor which is the plaint schedule property and sold to the plaintiff under Registered Sale deed dated 29-9- 2000. Her vendor informed that the construction is made accordance with

O.S.No. 1175/2007

7 dt. 20-4-2012 the Town Planning Rules and assured the plaintiff that she did not alienate the property to anybody else and and further undertaking that if any dispute arises, she will be held responsible. The plaintiff further contended that in addition to the said schedule building, she had also sold item No.2 of the plaint schedule property which was only a vacant site for the purpose of construction of bath room under an Agreement of sale dated 29-9-2000 to the plaintiff. The plaintiff further contended that item No.2 of the plaint schedule property was purchased for Rs.40,000/- . The plaintiff has incurred a sum of Rs. 4,00,000/- for purchasing and completing the construction and he is a bonafide purchaser of the property. The plaintiff further contended that the defendant without making ay notification or publication gave a notice to the plaintiff that the schedule mentioned apartment was constructed which was which was ear marked for parking area and the plaintiff's vendor executed executed Agreement in favour of the defendant that she has to use it only for parking place by violating the Agreement in favour of the defendant. The stilt floor was constructed i.e., the schedule mentioned house was constructed ,that as per the writ Application 1559/2006, the

Hon'ble high Court directed to remove the constructions in the stilt floor and

therefore directed the plaintiff to remove the same within 7 days. The plaintiff gave reply on 24-7-2007. The plaintiff further contended that he is not aware of any alleged agreement executed by the vendor of the plaintiff in favour of the defendant. He purchased the property long back. He further contended that without taking action against the vendor sent another notice

dated 16-7-2007, directing the plaintiff to demolish the same within 24

hours. The plaintiff further contended that he has not make any construction, his vendor made the construction, as such action should be

O.S.No. 1175/2007

8 dt. 20-4-2012 only against his vendor and the defendant cannot take any action of demolishing the stilt floor. The plaintiff further contended that the defendant also laid municipal taxes for the schedule mentioned building since the date of the purchase and he has been been paying taxes to the defendant . In view of the threatened action by the defendant, the plaintiff filed the suit and prays to grant for permanent injunction.

13.On the other hand, the defendant contending that the plaintiff purchased the plaint schedule property illegally and unauthorisedly without obtaining any proper permission. The vendor of the plaintiff not obtained any any approval with regard to the stilt portion construction which is meant for the parking place only. The defendant after verifying the said construction and found that the construction was made in the ear marked parking place. As such the plaintiff has not get any right , title and interest over the said portion. He further contended that in fact, the original owner was submitted an application for the construction of the apartment. The approved the same subject to usual conditions. The vendor of the plaintiff gave undertaking in the form of agreement that she will not construct any permanent structures in the parking place. But the plaintiff herein purchased the deviated and violated portion in the designated parking place i.e., stilt area which violates the building rules and apartment conditions. The defendant further contended that as per G.O.Ms.No. 422 and 423 MA, dated 31-7-1998 Order No.1.1.IV says that the owner shall file with the local authority an undertaking, stating that he will not violate any rules, building bye laws, and that in case of violation, the local authorities would be at liberty to remove summarily the deviations at owner cost without prior notice. Their Hon'ble High Court also given order in W.P.No.15591/06 to

O.S.No. 1175/2007

9 dt. 20-4-2012 remove violation structures in parking places. The City Planning staff of

Nellore municipal has explained everything to the plaintiff about the situation of the apartment. After that the defendant has given notices giving sufficient time for removal of the violation structures in stilt area. The defendant has got right to levy property tax, on any building or any other house in any place within Municipal Corporation limits of Nellore, as per provisions of the municipal Corporation Act and rules and also the defendant has got right to levy property tax on any authorised constructions also, so, the plaintiff should not predict that the unauthorised constructio is regularised and prays to dismiss the suit.

14.On behalf of the plaintiff, the plaintiff himself examined as

Pw.1 and deposed as per the plaint averments and got marked Exs.A-1 to

A-13. Ex.A-1 is the Original Registered sale deed dated 29-9-2000 executed by M. Sunitha in favour of the plaintiff. Ex.A-2 is Notice issued by the defendant to the plaintiff dt.5-7-2007. Ex.A-3 is the Reply notice

dated 24-7-2007. Ex.A-4 is the Postal acknowledgement dated 31-7-2007.

Ex.A-5 is the 2nd notice of the defendant to the plaintiff to demolish the building within 24 hours dated 16-7-2007. Ex.A-6 is the Pre-warrant notice

dated 22-3-2007. Ex.A-7 is the Office copy of reply notice dated 28-3-2007

by the plaintiff. Ex.A-8 is the Municipal tax receipt dated 28-6-2001 for

Rs.160/- bearing No.12539. . Ex.A-9 is the Municipal tax receipt dated 30- 10-2001 for rs.160/- bearing No.23182. . Ex,.A-10 is the Municipal tax receipt dated 9-2-2002 for Rs.280/- bearing No.16082. . Ex.A-11 is the

Municipal tax receipt dated 23-7-2002 for Rs.280/- bearing No.53378. .

Ex.A-12 is the Municipal tax receipt dated 31-7-2003 for Rs.280/- bearing

No.62244. Ex.A-13 is the Municipal tax receipt dated 7-5-2004 for

O.S.No. 1175/2007

10 dt. 20-4-2012

Rs.280/- bearing No.53231. In the cross-examination, Pw.1 deposed that the suit schedule property is a ground floor. He denied the suggestion that the building was constructed without approval municipal plan against the rules and regulations of the Municipality. Pw.1 also admitted that the defendant issued notice to the plaintiff by stating that he violated the Municipal rules and constructed the building. He denied the suggestion that as he constructed the building without approval municipal plan and also violating the municipal rules, as such, he is not entitled for permanent injunction.

15.Pw.2 one NeeliLakshmi Narayana examined as Pw.2 and got marked Ex.X-1. Ex.X-1 is the photos (7 in number) along with C.D. And bill of the said photos. He deposed that he got a flat bearing No.403 in

Rohith Apartment of Vedayapalem. The plaintiff has got a flat in ground floor. There are 27 flats in the said apartment. There is only a ground floor and no cellar. The flat owners have got car and scooter parkings. He further deposed that the plaintiff is not hindrance or obstruction for parking his vehicle and other co-owners vehicles. He further contended that three gates in south compound wall to the apartment for ingress and egress of all the residents for the vehicles to be passed from the road to the ground floor.

Pw.2 was cross-examined. In the cross-examination, he deposed that the parking place is a separate one . He further deposed that the plaintiff constructed the building in the ground floor after obtaining the necessary permission and according to the approval plan from the defendant. He denied the suggestion that the plaintiff constructed the ground floor without approval of Municipal Corporation, Nellore.

16.One P. Venkata Subrahmanya Sastry who taken the photographs of Ex.X-1 examined as Pw.3.. He deposed on the request of the plaintiff

O.S.No. 1175/2007

11 dt. 20-4-2012 about 15 days back , he has taken the photographs of Ex.X-1.

17.In this case, the plaintiff contended that he bonafidely purchased the plaint schedule property from his vendor by spent huge amounts. He further contended that he came to know that her vendor constructed the apartment after obtaining the necessary permission from the

Director of Town Planning and Country Planning, Hyderabad. The defendant gave notice under Ex.A-2 by stating that the plaint schedule property is constructed in the site which was earmarked for parking area and his vendor executed Agreement in favour of the defendant that she has to use it only for parking place and by violating the said conditions, the plaintiff constructed the building and as per the Writ Application

No.1559/2006, the Hon'ble High Court directed to remove the constructions in the stilt floor . The defendant also issued second notice dated 16-7-2007.

The plaintiff also issued reply legal notice to the defendant. He further contended that he has not violated any building municipal approval plan and his vendor violated the same. The defendant cannot take any drastic action of demolishing the stilt floor.

18.Where as the defendant contended that the suit schedule premises was constructed by violating the Municipal approval plan. Mere collecting the taxes by the defendant, the plaintiff cannot take advantage of that. The defendant further contended that the defendant is entitled to collect taxes on any property which is situated within the municipal limits as per the Municipality Act. Hence the said contention is not tenable. As per

Ex.A-2 the defendant categorically mentioned that the construction is made by the plaintiff or purchased by the plaintiff situated in the stilt floor according to approved plan. It was ear marked for parking place. The

O.S.No. 1175/2007

12 dt. 20-4-2012 owner/builder executed Agreement in favour of the defendant that it is kept only for parking place. But deviated the Municipal rules, the present suit schedule property is constructed in the stilt parking place. Hence they are entitled to remove the said illegal construction. The plaintiff got issued reply legal notice under Ex.A-3. Where in contended that he not made any construction, but his vendor made the constructions. Hence the defendant has to take action against the vendor, but not against him. But the defendant again issued second notice under Ex.A-5 that they are not satisfied the reply notice issued by the plaintiff that they intended to demolish the illegal constructions and also they are entitled to collect expenses to an extent of the removal of the construction from the plaintiff.

19. In this case the plaintiff not produced any evidence before the

Court to show that the plaint schedule construction was made according to

Municipal Approved plan. If really the plaint schedule property is made according to Municipal Approval plan, the plaintiff ought to be filed plan

before the Court. Even in the reply legal notice issued by the plaintiff under

Ex.A-3, where in there is no whisper that the suit schedule property construction was made according to Municipal Approval plan. In Ex.A-3 they only contended that their vendor violated the Municipal Approved plan and constructed the suit schedule property and the plaintiff only purchased the same from his vendor, as such the defendant ought to be take action against his vendor, but not against him. Though in this case, the defendant contended that the vendor of the plaintiff executed an Agreement in favour of the defendant by undertaking not to construct in the stilt area, but it is only kept for parking place. Though the said agreement was not filed before the Court. But as per evidence of the plaintiff, he failed to prove that the

O.S.No. 1175/2007

13 dt. 20-4-2012 suit schedule property construction was made according to Municipal approved plan. Admittedly the relief of injunction is an equitable relief and also discretionary relief. There is no evidence before the Court to show that the structures were made according to Municipal approved plan. Hence it shows that the plaint schedule structures are unauthorised. The Court may not grant injunction merely on the ground of sympathy or hardship. No doubt the plaintiff by expending the huge amounts, he purchased the property and also made for construction of the suit schedule building. But it is the duty of the plaintiff prior to purchase, he has to verify whether the building was constructing according to the Municipal approved plan or not or there any deviations in the construction of the suit schedule property, he has to enquire. But the reply legal notice issued by the plaintiff under

Ex.A-3 , it shows that the plaintiff has not made any such enquiry prior to purchase of the suit schedule property. Now at this stage, the plaintiff cannot plead that he has not violated any rules, but his vendor violated the municipal rules. Hence the said contention is not tenable.

20.Moreover the Hon'ble High Court reported a Judgment in 2004(2) ALT 460 ( ADVOCATE GENERAL //VS.// STATEOF A.P.

REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT

AND OTHERS). Wherein the Hon'ble High Court while discussing the

Hyderabad Municipal Corporation Act, 1955, Sections 432 and 437 – A.P.

Municipalities Act, 1965, Sec.214 and also Hyderabad Municipal

Corporations Act, 1955, Section 685 – A.P. Municipalities Act, 1965,

Section 383 in paras 28 to 30 of the Judgment held as under:

28. Section 340 of the municipalities Act lays down that if the

construction or reconstruction is commenced without the

permission of the Municipality or in breach of the provisions of

the Act, Bye-laws or the Rules, the owner shall be liable for

O.S.No. 1175/2007

14 dt. 20-4-2012

conviction with fine which may extend to a sum of Rs.500/-

(Rupees five hundred only). Section 36 empowers the

Commissioner to prosecute persons, who violate provisions of the

Municipalities Act or the Rules. Under Section 378 of the

Municipalities Act, it shall be the duty of every Police officer to

communicate without delay to proper Municipal Officer any

information of design to commit an offence under the

municipalities Act and it shall be the duty of the police officer to

assist Chair-Person , Commissioner or Municipal Officer for

lawful exercise of the power. Indeed, under Section 379 of the

municipalities Act, any police Officer can arrest a person

committing offence under the provisions of the Municipalities

Act. In so far as HMC Act is concerned, Section 669 empowers

the Police Officer to arrest a person who is committing offence

under the said Act and as per Section 681 it shall be the duty of

Police to help the Corporation Officials in discharge of their

functions. This leads to an inference that when an unauthorised

construction is being made or a construction is being made in

breach of building permission, Bye-Laws or Building Regulations,

as complained to Police officer, the Police officer can arrest the

person and stop construction work duly bringing the same to the

notice of the Municipal Commissioner. The anxiety of the

Legislature in enacting these provisions is to see that the

provisions of the Act are strictly adhered to. It is surprising that

unless and until a requisition is made, Police never act even if

some unauthorised construction is going on in front of their nose.

The authorities in the Police Department should take appropriate

action in this regard, if necessary by issuing proper Circulars.

29. Having regard to the above binding precedents all the Civil

Courts which entertain suits challenging the action of the

municipal authorities except in exceptional cases must exercise

sound discretion while granting ad interim injunction.

30. As observed by me hereinabove this case has generated a

considerable amount of interest may be pursuant to notice issued

by this Court inviting objections. It is not possible to deal with a

number of individual complaints against the builders received by

this Court. It is open to all of them to take action in the light of

the observations made herein above, which may be summarized

as under:

(i) All the Commissioners of municipal Corporations and

Municipal Councils must strictly adhere to the guidelines issued

by the Government of Andhra pradesh in G.O.Ms.No.541,

Municipal Administration and Urban Development (MI)

Department, dated 17-11-2000. It shall be open to any of them to

directly send their recommendations to State Government for

amendment of the provisions if they find difficulty in

implementing them within the present legal framework;

(ii) The Municipal Commissioners should take stringent action

against all the erring employees, whatever be the rank, if they in

any manner collude or connive with the persons approaching

municipalities/corporations for building permissions. If any

illegal construction comes to the notice of the Commissioners,

they should initiate necessary action within the legal framework

nd should demolish the structures;

(iii) the Government of Andhra Pradesh as a general rule should

not give any relaxation or exemption to any building from the

O.S.No. 1175/2007

15 dt. 20-4-2012

provisions of the municipal laws and municipal bye-laws. In case

such relaxations/exemptions are required to subserve public

interest, the decision may be taken by the highest authority of the

State:

(iv) State may also consider appointing Expert Committee to

review the existing Municipal Laws, Municipal Bye-laws,

Building Rules etc., and take steps for making amendments, if

necessary, in view of the observations made herein above;

(v) The Civil Courts should not and ought not ordinarily entertain

every suit against local authority, Panchayat, Municipality or

Municipal Corporation especially in cases where these authorities

have issued notices under the relevant provisions of law. This

principle should be enforced even in relation to pending suits and

the parties may be advised to avail public law remedy by filing

Writ Petitions;

(vi) The Civil Courts, even if they entertain suits in extraordinary

circumstances must be circumspect and strictly adhere to the

principles laid down by this court and Supreme Court while

granting order of injunctions restraining demolitions. If the local

authorities have duly followed the procedure of issuing notice and

considering explanation, the Civil Courts ought not to stay any

demolition as held by the Supreme Court in Shiv Kumar

Chandha /vs./ municipal Corporation of Delhi (4 supra);

(vii) Having regard to the provisions of HMC Act and

Municipalities act referred to hereinabove, it shall be open to

Police to arrest any person who is constructing a building without

permission and/or a person who is constructing a building in

contravention of the provisions of the relevant acts and Building

Bye-laws; and

(viii) Liberty is reserved to parties to these Writ petitions to approach this Court for any other clarifications, if needed.

In this case the plaintiff violated the building rules and made construction without approval of the municipality. Hence this Court feels that the plaintiff is not entitled to discretionary relief of permanent injunction.

21.The Hon'ble Supreme Court relied a Judgment reported in

MANU/SC/2420/2006 = 2006(5) ALD 1 (SC) – (SEEMA ARSHAD

ZAHEER AND ORS. //VS.// MUNICIPAL CORPORATION OFGREATER

MUMBAI AND ORS.) The Hon'ble Supreme court while discussing O.39

Rules 1 and 2 CPC and also Mumbai Municipal Corporation Act, 1988 -Section 351. In para No.30 the relevant portion as under:

O.S.No. 1175/2007

16 dt. 20-4-2012 “ This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is requires to be exercised has to be in accordance with law and set legal principles.

The Hon'ble High Court MANU/AP/0753/2007 = 2007(5) ALD 203 - ( V.

NARASIMHAM, S/O V. JAGANNADHA RAO AND V. JAGANNADHA RAO

S/O LATE RAMALINGAM //VS.// GREATER HYDERABAD MUNICIPAL

CORPORTION REP.BY ITS COMMISSIONER ND THE TOWN PLANNING

OFFICER, GREATER HYDERABAD MUNICIPAL CORPORTION) . The

Hon'ble high Court while discussing the Greater Hyderabad Municipal Corporation

Section 452 . While discussing the Judgment of Hon'ble Supreme Court of

Judgment reported in K. Ramdas Shenoy //vs.// Chief Officers, Town Municipal

Council, Udipi (1974) 2 S.C.C. 506. The Hon'ble Supreme Court observed that:

“ The Municipality acts for the public benefit in enforcing the Scheme. Where the municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. .

In those circumstances then any party can challenge the acts of the municipality. The right to build on his own land is a right incidental to the ownership of that residing within the limits of the Municipal Committee If under pretense of any authority which the law does give to the municipality it goes beyond the line of its authority, and infringes or violates the rights of others , it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye-law the

O.S.No. 1175/2007

17 dt. 20-4-2012 jurisdiction of the courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative . In para No.12 held as under:

“ Unfortunately, despite repeated adverse judgments by the Supreme Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the legislative wing of the State. As and when the Courts have passed orders or the Officers of local bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions or taken action for demolition of the illegal unauthorised constructions, the State has come forward to protect the interest of these people either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such laws have done irreparable harm to the concept of planned development of the cities and urban areas. If the representatives of the people do not take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, even the rural areas of the country will soon witness similar chaotic conditions. Section 452 of Hyderabad Municipal Corporation Act reads as under;

452. Proceedings to be taken in respect of building or work commenced contrary to Act or byelaws:-

(1) If the erection of any building or the execution of any such

work as is described in Section 433 is commenced or carried out

contrary to the provisions of this Act or bye-laws made

thereunder, the Commissioner, unless he deems it necessary to

take proceedings in respect of such building or work under Section

456 shall--

(a) by written notice, require the person who is erecting or re-

erecting such building or executing such work or has erected or re-

erected such building or executed such work, on or before such

day as shall be specified in such notice, by a statement in writing

subscribed by him or by an agent duly authorised by him in that

behalf and addressed to the Commissioner, to show sufficient

cause why such building or work shall not be removed, altered or

pulled down; or

(b) shall require the said person on such day and at such time and

place as shall be specified in such notice to attend personally or by

an agent duly authorised by him in that behalf, to show sufficient

cause why such building or work shall not be removed, altered or

pulled down.

(2) If such person shall fail to show sufficient cause as required

under clause (a) or (b) of Sub-section (1), to the satisfaction of the

Commissioner, why such building or work shall not be removed,

altered or pulled down, the Commissioner may remove, alter or

pull down the building or work and the expenses thereof shall be

paid by the said person.

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18 dt. 20-4-2012

As such the defendant is entitled to demolish the building as it is constructed by violating municipal rules and bye-laws. In this case the plaintiff not issued notice prior to filing of the suit to defendant Municipal

Corporation as requires under Sec.685 of Hyderabad Municipal Corporation

Act. Section 685 of Hyderabad Municipal Corporation Act reads as under:

“ 685. Protection of persons acting under this Act against suits:-- (1) No suit shall be instituted against the Corporation or against the Commissioner or a Deputy Commissioner or against any officer or servant, appointed under this Act, in respect of any act done in pursuance of execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act--- (a0 until the expiration of one month next after notice in writing has been , in the case of the Corporation, left at the Chief Municipal officer and in the case of the Commissioner or of a Deputy Commissioner or of a Municipal Officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and or his attorney or agent, if any, for the purpose of such suit; or (b0 unless it is commenced within six months next after the accrual of the cause of action; (2) At the trial of any suit-

(a) the plaintiff shall not be permitted to go into evidence of any cause of action except such as is set forth in the notice delivered or left by him as aforesaid;

(b) the claim, if it be for damages, shall be dismissed if tender of sufficient amends shall have been made before the suit was instituted or if, after the institution of the suit, a sufficient sum of money is paid into Court with costs.

(3) Where the defendant in any such suit is a Municipal Officer or servant, payment of the sum or of any part of any sum payable by him in or in consequence, of the suit whether in respect of costs, charges expenses compensation for damages or otherwise, may be made, with the previous sanction of the Standing Committee from the Municipal Fund.

As such the suit is not maintainable in view of section 685 of Hyderabad

Municipal Corporation Act. Therefore this Issue No.1 is hereby answered in favour of the defendant against the plaintiff.

O.S.No. 1175/2007

19 dt. 20-4-2012

22.ISSUE NO. 2:

In the result, the suit is dismissed with costs.

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

pronounced by me in the open Court, this the 20th day of April, 2012. .

I Additional Junior Civil Judge,

S.P.S.R. Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PLAINTIFFS:

Pw.1: Tupalli Kumar.

Pw.2: Neeli Lakshmi Narayana.

Pw.3: P. Venkata Subrahmanya Sastry.

FOR DEFENDANT: - NIL-

DOCUMENTS MARKED

FOR PLAINTIFFS:

Ex.A-1: Original Registered sale deed dated 29-9-2000 executed by M. Sunitha in favour of the plaintiff.

Ex.A-2: Notice issued by the defendant to the plaintiff dt.5-7-2007.

Ex.A-3: Reply notice dated 24-7-2007.

Ex.A-4: Postal acknowledgement dated 31-7-2007.

Ex.A-5: 2nd notice of the defendant to the plaintiff to demolish the building within 24 hours dated 16-7-2007.

Ex.A-6: Pre-warrant notice dated 22-3-2007.

Ex.A-7: Office copy of reply notice dated 28-3-2007 by the plaintiff.

Ex.A-8: Municipal tax receipt dated 28-6-2001 for Rs.160/- bearing

No.12539. .

O.S.No. 1175/2007

20 dt. 20-4-2012

Ex.A-9: Municipal tax receipt dated 30-10-2001 for rs.160/- bearing

No.23182.

Ex,A-10: Municipal tax receipt dated 9-2-2002 for Rs.280/- bearing

No.16082.

Ex.A-11: Municipal tax receipt dated 23-7-2002 for Rs.280/- bearing

No.53378.

Ex.A-12: Municipal tax receipt dated 31-7-2003 for Rs.280/- bearing

No.62244.

Ex.A-13: Municipal tax receipt dated 7-5-2004 for Rs.280/- bearing

No.53231.

Ex.X-1: Photos(7 in number) along with C.D. And bill of the said photos(through Pw.2_. ).

FOR DEFENDANT: - NIL-

I AJCJ,

SPSR NLR.

O.S.No. 814/2006

1 dt. 16-4-2012

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE,

S.P.S.R. Nellore.

Monday, the Sixteenth(16th) day of April, 2012.

PRESENT; SRI M. SATISH KUMAR, B.A., LL.B.,

I Additional Junior Civil Judge,

Nellore.

O.S.No. 814/2006

Between:

1. Pydi Masthanaiah(died).

2. Pydi Brahmanandam.

3. Pydi Devasenamma.

4. Pydi Venkatakumar.

5. Pydi Dinesh.

(Plaintiffs 3 to 5 are added as L.Rs of Ist plaintiff as per

Orders in I.A.No.896/2009 dated 27-1-2010)

... Plaintiffs.

And:

Mylavaram Babu. ... Defendant.

This Suit coming on 1-3-2012 before me for final disposal in the presence of Sri T.V.Sreenivasa Rao, Advocate for the plaintiff sand of Sri P.Sreenivasa Rao, Advocate for defendant, and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

Originally the suit is filed by the plaintiff Nos.1 and 2 against the defendant. Later during the pendency of the suit, plaintiff No.1 was died . the plaintiffs 3 to 5 were added as Legal representatives of the Ist plaintiff.

2.The brief averments of the plaint is that one Pydi Subbaramaiah who is father of the plaintiffs had purchased the land on 28-1-1991 under a

O.S.No. 814/2006

2 dt. 16-4-2012

Registered Sale deed for a valid consideration of Rs.32,000/- from one

Kailasam Hymavathamma. On the date of purchase the said Hymavthamma has delivered possession of the land to the father of the plaintiffs 1 and 2 and since then the father of the plaintiff No.1 and after his death the plaintiffs 1 and 2 have been in continuous possession and enjoyment of the same. The original Registered sale deed dated 28-1-1991 and the link document under which the vendor of the plaintiffs 1 and 2 i.e., kailasam

Hymavathamma purchased the plaint schedule property on 28-8-1989 from

Challa Yasodamma and the plaintiffs got divided their family properties orally and obtained pattadar pass-books in their individual names. The plaint schedule property is also shown in their individual pass books i.e.,

Ac.0-40 cents each in patta No.75 in S.No.647/2. The plaintiffs have also obtained loans from the banks by pledging the pass-books and other

Revenue Records.

3.The plaintiffs further submit that the defendant who got Ac.0-80 cents of land on the southern side of the plaintiffs’ land in patta No.11,

S.No.647 and he purchased the same under Registered sale deed dated 28-3- 1984 from Varunduru Venkata Prabhakara Rao @ Prabhakar. The defendant also sold Ac.0-26 cents to one Suri Rami Reddy out of 80 cents adjacent to the southern boundary of the plaintiff on 25-1-1998 in which the defendant shown the remaining land on the southern boundary. While so, the defendant without any manner of right is trying to interfere with the peaceful possession and enjoyment of the land of the plaintiffs, which is in patta No.75 and in S.No.647/2. The defendant is having land only in patta

No.11 and S.No.647 , but not in plaintiffs S.No.647/2 and patta No.75. there is no inch of land belonging to the defendant in plaintiffs’ patta No.75 and

O.S.No. 814/2006

3 dt. 16-4-2012

S.No.647/2. The survey number and patta number of the plaintiffs and defendant are quite different. The defendant with a view to grab the land , wantonly interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule land. Hence the suit.

4.The defendant filed his written statement, denying all the allegations mentioned in the plaint and submitted that he had purchased the land in S.No.647 patta No.75 an extent of Ac.0-80 cents from one Vuranduru

Venkata Prabhavkara Rao on 28-3-1984. The defendant sold away Ac.0-26 cents of land to one Suri Rami Reddy on 25-1-1988 but not 25-1-1998 as alleged by the plaintiffs. The defendant is having land in S.No.647 patta

No.75 where the plaintiffs are having land in S.No.647/2 patta No.85. The survey numbers and patta numbers are drifferent from each other. The plaintiffs have no piece of land in S.no.647 in patta No.75. the plaintiffs land in S.No.647/2 in patta No.75 is far away from the land of the defendant.

The plaintiffs are interfering with the peaceful possession and enjoyment of land by the defendant without any manner of right or title. The defendant has no necessity to grab the land of the plaintiffs illegally.

5.The defendant further submits that he filed Caveat

O.P.No.24/2006 . plaintiffs are the residents of Lingayapalem nearer to the suit schedule property, where as the defendant is the resident of Nellore town which is far away from the suit schedule property. The defendant is rice mill mechanic and he is taking steps against the plaintiffs for defamation and damages for defamatory statements such as “land grabber” made by the plaintiffs.

6.The defendant further submits that he is the absolute owner of the land in Patta No.75 and S.No.647 of Brahmadevi village having

O.S.No. 814/2006

4 dt. 16-4-2012 purchased under Registered sale deed. The vendor of the defendant has acquired the same by Registered Settlement deed on 5-9-1972. One

Chittiboina China Venkaiah sold away the property in an extent of Ac.1-00 cents in S.No.647/2 patta No.75 to Challa yasodamma in the year 1974. The boundaries mentioned in the sale deed as: East; Road; South: karinaka

Dibba; West: Kota Sreeramulu’s land; North; Pottempadu road. The said

Challa Yasodamma sold away the property in an extent of Ac.0-80 cents in patta No.75, S.no.647/2 to Kailasam Hymavathamma in the year 1989.

The public copy of the sale deed mentioned the boundaries as follows; East:

Muthukur to Nellore road; south: Suri Ramireddy land in this S.No. some extent and Duttapati Sreehari land in this S.No. to some extent; West: Kota

Sreeramulu’s land and Duttapati Sreehari land and North: Challa

Yasodamma land. The boundaries are different in both sale deeds. The said

Challa Yasodamma shown the wrong schedule in the sale deed and changed the two side boundaries. She has to change only one boundary any of the side as she kept only Ac.0-20 cents of land out of A.1-00 cents in the above patta and survey number. Challa yasodamma cheated the Kailasam

Hymavathamma and sold the property by showing the wrong schedule. The plaintiffs purchased the property from the said Kailsam Hymavthamma who was cheated by the Challa Yasodamma.

7.The defendant further submits that the plaintiffs have no land in

Survey No.647 and Patta No.75, which the defendant has got property. The defendant is paying cist to the Government and the Revenue records clearly shows that the defendant is the owner of the land in S.No.647 and Patta

No.75. the Mandal Surveyor of Muthukur mandal had measured the land when the defendant filed a petition before the Mandal revenue Officer,

O.S.No. 814/2006

5 dt. 16-4-2012

Muthukur and he gave a Certificate to that effect also. The plaintiffs never in possession and enjoyment of land in S.no.647, patta No.75. The plaintiffs are unnecessarily interfering with the peaceful possession and enjoyment of the defendant. The plaintiffs with a view to grab the property filed the present suit though they have no right or title in the land in S.no.647, patta

No.75 the plaintiffs land is situated in S.No.647/2, patta No.75. Hence prays to dismiss the suit.

8.Basing on the above pleadings, the following issues have been settled for trial:

1. Whether the plaintiffs are entitled to permanent injunction as prayed for?

2. To what relief?

9.. During the course of trial, on behalf of the plaintiffs, Pws.1 to 4 were examined and got marked Ex.A-1 to A-7 and also marked Exs.X-1 to

X-3 through Pw.4. On behalf of the defendant, Dws.1 to 5 were examined and got marked Ex.B-1 to B-7.

10... Heard both sides.

11. ISSUE NO.1:

The case of the plaintiff is that the father of the plaintiffs by name Pydi Subbaramaiah purchased the plaint schedule property on 28-1- 1991 under Registered sale deed from Kailasam Hymavathamma. On the same day, she delivered the possession to the father of the plaintiffs 1 and 2.

Thereafter the father of the plaintiffs was died . Since then the plaintiffs 1 and 2 are in possession and enjoyment of the property. The vendor of the father of the plaintiffs purchased the plaint schedule property from Challa

Yasodamma under Registered sale deed dated 28-8-1989. The plaintiffs further contended that they got divided their family properties orally and

O.S.No. 814/2006

6 dt. 16-4-2012 obtained pattadar pass-books in their individual names. IN their pass books also shown that Ac.0-40 cents each in patta No.75, S.No.647/2. The plaintiffs further contended that they obtained loans from the bank by pledging the pass books and revenue records. The plaintiffs further contended that the defendant got Ac.0-80 cents of land on southern side of the plaintiffs’ land in Patta No.11 in S.no.647. they purchased the same under Registered sale deed dated 28-3-1984 from Vuranduru Venkata

Prabhakara Rao @ Prabhakar. The plaintiffs further contended that the defendant also sold Ac.0-26 cents to one Suri Rami Reddy out of Ac.0-80 cents adjacent to the southern boundary of the plaintiffs. The plaintiffs further contended that the defendant without having any right and title, interfering their possession of the plaint schedule property. The defendant land is situated in Patta No. 11 and s.no.647. where as the plaintiffs land is situated in S.no.647/2 in patta No.75. The plaintiffs’ properties and defendant properties are quite different, as the defendant tried to dispossess the plaintiffs from plaint schedule property. Hence this suit.

12.On the other hand, the defendant contended that he has no knowledge about the purchase of the plaint schedule property, by the father of the plaintiffs from Kailasam Hymavathamma. He further contended that he has no knowledge about the possession of the plaint schedule property by the plaintiffs. He has no knowledge about the partition of the property orally by the plaintiffs and obtained their pattadar pass-books in their individual names. He contended that the he purchased Ac.0-80 cents of land in

S.No.647 Patta No.75 from Vuranduru Venkata Prabhakara Rao @

Prabhakar on 28-3-1984. He further contended that he sold away Ac.0-26 cents to one Suri Rami Reddy on 25-1-1988. He denied that he is trying to

O.S.No. 814/2006

7 dt. 16-4-2012 interfere with the plaintiff’s property. He further contended that his land is situated in S.no.647, patta No.75, and the plaintiffs land is situated in

S.no.647/2 , patta no.75. the survey numbers and patta numbers are quite different from each other. He further contended that the plaintiffs have no piece of land in S.No.647 in patta No.75. He further contended that he has no necessity to grab the land of the plaintiffs and also denied that he is interfering with the possession of the plaintiffs over the plaint schedule property.. He further contended that the plaintiffs are the residents of

Lingayapalem village which is nearer to the plaint schedule property..

where as the defendant is the resident of Nellore town which is far away from the plaint schedule property.. He further contended that as per the sale deed, if the vendors vendor of the plaintiffs, the boundaries shown as East:

road, South: Karinaka dibba; West: Kota Sreeramulu’s land and North :

Pottempadu road. He further contended that the said Challa Yasodamma sold away the property in an extent of Ac.0-80 cents in patta No.75 , s.No.647/2 to Kailasam Hymavathamma in the year 1989. Where the boundaries mentioned as : East: Muthukur to Nellore Road; south: Suri

Rmai Reddy land in this S.No. some extent and Duttapati Sreehari land in this number to some extent, west: Kota Sreeramulu’s land and Duttapati

Sreehari land and North: Challa Yasodamma land. The boundaries in both the sale deeds are different.

13.The defendant further contended that Challa Yasodamma shown the wrong schedule in the sale deed and changed the two side boundaries.

She has to change only one boundary any of the side as she kept only Ac.0- 20 cents out of Ac.1-00 cents. He further contended that Challa Yasodamma cheated the Kailasam Hymavathamma and sold the property by showing

O.S.No. 814/2006

8 dt. 16-4-2012 the wrong schedule. He further contended that the plaintiffs have no land in s.no.647 and patta No.75, which the defendant has got property and he is paying cist to the government and he also got surveyed his land through

Mandal Surveyor. The Mandal Surveyor measured the land and gave the plan. He further contended that the plaintiffs unnecessarily interfering with his peaceful possession and enjoyment of their properties. As the plaintiffs land is situate din S.no.647/2, patta No.75. Where as the defendant land is situated in S.no.647, patta No.11. the plaintiffs falsely claiming right over the land in S.no.647 and prays to dismiss the suit.

14.To prove the case of the plaintiffs, the plaintiff No.1 examined as Pw.1 and he reiterated the plaint averments and got marked Exs.A-1 to

A-4. Ex.A-1 is theRegistered sale deed dated 28-1-1991 executed by

Kailsam Hymavathamma in favour of his father. Ex.A-2 is the Registed sale deed dated 28-8-1989 executed by Challa yasodamma in favour of plaintiffs' father vendor i.e., Kailsam Hymavathamma. Ex.A-3 is the

Certified copy of Registered sale deed dated 28-3-1984 under which the defendant purchased Ac.0-80 cents of land. Ex.A-4 is the Certified copy of

Registered sale deed dated 25-1-1998 under which the defendant sold

Ac.0-26 cents of land to Suri Rami Reddy.

15.

In the cross-examination, Pw.1 denied the suggestion that the boundaries on southern side is different in the documents of Challa

Yasodamma and Kailasam Hymavathamma. He admitted that the defendant is having land in S.No.647/2 to an extent of Ac.0-80 cents Patta No.11. he also admitted that the defendant sold away the property to Suri Rami Reddy.

He denied the suggestion that he has no right over the plaint schedule property. He also denied that his vendor sold the plaint schedule property

O.S.No. 814/2006

9 dt. 16-4-2012 with wrong boundaries. He further deposed that he cannot say the

S.No.647/2 was sub-divided. He denied the suggestion that Surveyor visited the land and surveyed and measured the land of defendant and gave a report.

16.Pydi Ragaveni , the wife of the 2nd plaintiff examined as pw.2 and she also deposed as per the plaint averments. She deposed that their property is situated in survey No.647/2. They got divided their family properties orally and obtained pattadar pass-books in individual names and their pattadar pass-books shown the land i.e., Ac.0-40 cents each inS.No.647/2. She also deposed the defendant got Ac.0-80 cents of land on southern side their land in patta No.11, S.No.647. the defendant sold

Ac.0-26 cent of land to one Suri Rami Reddy out of Ac.0-80 cents adjacent to their southern boundary. The defendant without having any right interfere with the possession of their land. She further contended that the defendant is not having any land in S.No.647/2.

17.Pw.2 was cross-examined by the defendant's counsel. In the evidence of Pw.2 got marked Exs.A-5 to A-7. Ex.A-5 is the copy of No.3

Adangal for the fasali 1419. Ex.A-6 is the No.3 adangal for the fasali 1418 and Ex.A-7 is the No.3 adangal for the fasali 148. She admitted that their land is situated in S.No.647/2. In Ex.A-5 copy of No.3 adangal for the fasali 1419 in S.No.647/2 was not mentioned. In Ex.A-5 No.3 village account, the father of the plaintiffs Pydi Subba Ramaiah shown as pattadar and possessor of Ac.0-80 cents in S.No.647. Where as in Ex.A-6 the plaintiff No.2 shown as possessor for the fasali 1418 to an extent of Ac.0-40 cents in No.647.

where as in Ex.A-7 shown as fasali 1418, Pw.1 shown as pattadar and possessor to an extent of Ac.0-40 cents in S.No.647. Pw.2 also admitted that in Exs.A-5 to A-7 not mentioned about the S.No.647/2. She also

O.S.No. 814/2006

10 dt. 16-4-2012 admitted that Exs.A-6 and A-7 are issued on 30-10-2010 i.e., subsequent to filing of the suit. She denied the suggestion that Exs.A-6 and A-7 are not pertaining to S.No.647/2. She further deposed that her land is situated in

S.no.647, but not in S.No.647/2. She denied the suggestion that as she is not identify her property , as such he is deposing false by claiming rights in

S.No.647.

18.One Poonamalli Subrahmanyam examined as Pw.3. he deposed that he knows both parties in the suit. He deposed that the father of the plaintiffs purchased the plaint schedule property from one Kailsam

Hymavthamma in S.No.647/2 in the year 1991.. He further deposed that in

S.no.647/2 contains division also, but the said division is not reflected in the revenue records as per his knowledge. But the S.N.647/2 appears in all sale deeds. His land is situated near the plaint schedule property.. He further deposed that since past 20 years the plaint schedule property is in possession of the plaintiffs. Pw.3 was cross-examined. In the cross-examination, he deposed that the plaintiffs are residents of Lingayapalem village, He is resident of Gupthapadu village. The distance between his village and

Lingayapalem village about half kilo meter. He further deposed that the plaintiff No.1 Pydi Masthanaiah is having land in S.No.0-80 cents in

S.No.647 . He again stated that Pydi Masthanaiah is having in S.No..647/2, but not in S.No.647. he also admitted that the Mandal Surveyor after giving notice to plaintiffs, measured the land of the defendant and also gave plan.

He denied the suggestion that there is no sub-division in s.No.647. He further deposed that he is not aware about the sub-division of S.no.647. He denied the suggestion that the plaintiffs are unable to identify their land , as such he is claiming the rights inS.no.647. he denied the suggestion that the

O.S.No. 814/2006

11 dt. 16-4-2012 defendant never tried to dispossess the plaintiffs from their land.

19.One Veluru Mohan Rao of Bramhadevi village examined as

Pw.4. he deposed that the total extent of land in S.no.647 of Brmhadevam village is Ac.5-13 cents. He deposed that as per the fasali 1419 the father of the plaintiffs Pydi Subbaramaiah is having Ac.0-80 cents . He further deposed tat in S.No.647 there was no sub-division, only s.No.647 is situated. He further deposed that if any person applied to Tahsildar of

Muthukur , then the survey number will be sub-divided on their request. He filed Exs.X-1 to X-3. Ex.X-1 is the Field Map of S.No.647 of

Brahmadevam village issued by Tahildar, Muthukur. Ex.X-2is the Adangal for the fasali 1418. Ex.X-3 is the 1-B register copy. He further deposed that in S.No.647, the total extent of Ac.5-13 cents, out of that one Kota

Sreermulu is having Ac.0-87 cents and Phydi Subbaramaiah is having Ac.0- 80 cents and Utukuru Brahmadevi Reddy is having Ac.3-36 cents as per the fasali 1418. He further depose that he verified the document of the plaintiffs and they are having Ac.0-80 cents of land in S.No.647. He further deposed that it was registered in S.No.647/2. The S.No.647 was wrongly mentioned in the sale deed of the father of the plaintiffs. He denied the suggestion that Exs.X-1 to X-3 prepared by him with collusion of plaintiff and his fimily members. He denied the suggestion that as per Ex.A-1 , the plaintiffs is not having any land in S.No.647.

20.On behalf of the defendants, the son of the defendant

Mylavaram Gopi examined as Dw.1 and got marked Exs.B-1 to B-7. He deposed as per the written statement contents. He contended that their land is situated in S.no.647 patta No.11. Where as the plaintiff land is situated in

S.No.647/2. In the cross-examination, he admitted that Challa Yasodamma

O.S.No. 814/2006

12 dt. 16-4-2012 purchased the property in the year 1974. He also deposed that they are not having disputes with the ownership of the land of Challa Yasodamma. He also deposed that Challa Yasodamma is having land Ac.1-00 of land in

S.No.647/2. They purchased Ac.0-80 cents of land in S.no.647. He also deposed that the boundary stones of their land was not clear appearance, as such they got surveyed the land. He further deposed that they got disputes with the plaintiff over the boundary of the land. He also deposed that out of

Ac.0-80 cents, they sold Ac. 0-50 cents of land, now they are having Ac.0-30 cents of land. He also deposed that the northern boundary of the plaintiffs is

ChallaYasodamma land. There is no disputes over the identification of land between their land and Challa yasodamma. He also admitted that the southern side of Challa Yasodamma, the plaintiff is having Ac.0-80 cents of land. He denied the suggestion that they are unable to identify their land, as such they are having disputes with the plaintiff. He further deposed that at the time of survey of the land, the Surveyor issued notice to the plaintiff, but the plaintiff refused to take notice.

21.One Nataari Babaiah examined as Dw.2. He deposed that the defendant purchased an extent of Ac.0-80 cents of land in S.No.647., He further deposed that out of Ac.0-80 cents, the defendant sold Ac.0-26 cents of land to one Suri Rami Reddy. The plaintiffs land is situated in

S.No.647/2. The plaintiffs is not having land in S.No.647. He further deposed that the plaintiff is unnecessarily interfering with the possessionof the defendant. Dw.2 was cross-examined. In the cross-examination, he deposed that out of Ac.0-80 cents , he sold Ac.0-50 cents and the defendant is having Ac.0-30 cents of land. He further deposed that in between the land of Challa Yasodamma and defendant, there is Karnala Dibba. After the said

O.S.No. 814/2006

13 dt. 16-4-2012

Karnala dibba, the land of Challa Yasodamma is situated. He further deposed that about four year back , when the defendant levelling his land of

Ac.0-30 cents , disputes arose between the plaintiffs and defendant. At that time, the defendant approached the Mandal Revenue Office and also

Muthukuru police station. Then the Surveyor was came to the land and measured the land of the defendant and fixed the boundaries to the land of the defendant.

22.One Karreddula Audiseshaiah, examined as Dw.3. He deposed that the defendant purchased the land in S.No.647 to an extent of Ac.0-80 cents from Vuranduru Venkata Prabhakara Rao on 28-3-1984. Since then the defendant is in possession of the land. The defendant sold away

Ac.0-50 cents of land out of Ac.0-80 cents to the four persons on different dates. He also purchased a land of Ac.0-10 cents out of the above said

Ac.0-80 cents in S.No.647 in patta No.75 for a valid consideration from the defendant.Dw.3 was cross-examined by the plaintiffs counsel. In the cross- examination, he deposed that he do not know the total extent of land in

S.No.647. He further deposed that he knows only an extent of ac.0-50 cents of land, but he do not know the facts remaining the land in S.No.647.

23.The defendant himself examined as Dw.4.. He reiterated the contents of the written statement. In the cross-examination, he deposed that he enquired about the surrounding owners of land at the time of his purchase of Ac.0-80 cents. He further deposed that after purchase of his land, it was never cultivated and kept fallow. He further deposed that out of Ac.0-80 cents , he sold Ac.0-50 cents to four persons and all the purchasers constructed houses in their respective lands. He further deposed that when they tried to clear the the bushes in his remaining Ac.30 cents of land, the

O.S.No. 814/2006

14 dt. 16-4-2012 plaintiffs obstructed him and at that time, they obstructed made by the plaintiff stated that the said Ac.0-30 cents of land pertaining to him. Then he got surveyed the land. He also admitted that his land and plaintiffs land was different. He also admitted that he is no way concerned with theland of the plaintiffs. He denied the suggestion that he interfered with the possession of the plaintiffs land. Then the plaintiff filed the suit.

24.One M. Ramu the Mandal Surveyor of Alluru mandal examined as Dw. 5. He deposed that the defendant paid challan for measuring his land situated in S.No.647. The Mandal Revenue Officer appointed him to survey the defendant's land. Accordingly he surveyed the land. At the time survey of the land, he issued notice notice to the plaintiffs, but the plaintiffs refused to receive the notice. He denied the suggestion that he never tried to issue notice to the plaintiffs at the time of measuring the land. He further deposed that S.No.647 was not sub-divided.

25.In this case, according to the plaintiff, the plaintiffs land is situated in S.no.647/2 to an extent of Ac.0-80 cents. The Ist plaintiff's father purchased the same under Ex.A-1 from Kailasam Hymavathamma. The vendor of father of plaintiffs Kailsam Hymavathamma purchased the property from Challa Ysodamma under Ex.A-2. Ex.A-3 is the Certified copy of sale deed of the defendant. Ex.A-4 is the Certified copy of sale deed, in which the defendant sold Ac.0-26 cents of land under Ex.A-4.

Exs.A-5 to A-7 are the No.3 adangals. The plaintiffs further contended that the defendant land is situated in S.no.647 and the defendant is not having any land in S.no.647/2 and the defendant is unnecessarily interfering with their possession of the land. Hence the suit.

O.S.No. 814/2006

15 dt. 16-4-2012

26.On the other hand, the defendant contended that their land is situated in S.no.647 and the plaintiffs land is situated in S.no.647/2. He purchased the same under Ex.B-2 from one Vuranduru Venkata Prabhakara

Rao. . He sold Ac.0-26 cents of land under Ex.B-4 to one Suri Rami

Reddy. Ex.B-5 is the Certified copy of sale deed dated dated 15-11-1974, in which Challa Yasodamma purchased the land. Ex.B-6 is the Certified copy of sale deed dated 28-8-1989 executed by Challa Yasodamma in favour of

Kailasam Hymavathama. Ex.B-7 is the Certified copy of sale deed dated 28-1-1991 executed by Kailsam Hymavathamma in favour of the plaintiffs.

27.Pw.2 also supported the version of the plaintiffs. Pws.1 and 2 categorically deposed that their land is situated in S.no.647, but not in

S.No.647/2. The defendant is no way concerned with the land in S.no.647/2.

Pw.2 also admitted that the Surveyor got measured the land of the defendant and gave field map under Ex.B-1 dated 23-6-2006. Pw.2 denied the suggestion that they cannot identify their land and to knock away the property of the defendant, filed this suit. But Pw.2 admitted that S.no.647/2 was no more. She came to know the S.No.647 was not divided till today.

She also admitted that as their vendor purchased the property in S.No.647/2 , as such they are having right only in S.no.647/2, but not in S.No.647.

28. Pw.3 also deposed that the plaintiff's land is situated in

S.no.647. The plaintiffs are not having land in S.no.647. The plaintiffs are having land in S.No.647/2 only. Where as the Village Revenue Officer, who examined as Pw.4. He deposed that he personally verified the documents of the plaintiffs' father Pydi Subbaramaiah and he deposed that the plaintiffs' father is having land to an extent of Ac.0-80 cents in S.No.647.

But it was registered S.No.647/2. He further deposed that the S.No.647

O.S.No. 814/2006

16 dt. 16-4-2012 wrongly mentioned in their documents. He further deposed that there was no S.No.647/2. He also admitted that according to Ex.A-2, the Survey number mentioned as Sy.No.647/2. He also admitted that all the link documents of the plaintiffs, the survey number mentioned as 647/2. Where as Pw.3 deposed that the plaintiffs father having land in S.No.647 /2 and purchased the same from from Kailasam Hmavathamma under Ex.A-1. The

S.No.647/2 contains division. But the said division was not reflected in their revenue records. But the Survey number with a division was appeared in all the sale deeds. pw.3 also admitted that Pydi Masthanaiah is having land in

S.No.647/2, but not in S.No.647. But in this case, Pw.1 deposed that the

S.No.647 was not sub-divided and the plaintiff land is situated in S.no.647 only. He also filed Exs.X-1 to x-3. Ex.X-1 is the Field Map of S.No.647. It shows that the entire land in S.No.647 to an extent of Ac.5-13 cents. Ex.X-2 is the No.3 adangal for the fasali 1419. Where in it shows that the father of the plaintiffs Phdi subbaramaiah is having land to an extent of Ac.0-80 cents of land in S.no.647 shown as pattadar and possessor. Ex.X-3 is the 1-B

Register. It shows that the father of the plaintiffs is having land in S.no.647 to an extent of Ac.0-80 cents. Exs.X-1 to x-3 shows only S.No.647. But where as Ex.A-1, the plaintiffs land is situated in S.No.647/2. Dw.5 who is the Mandal Surveyor was categorically deposed that he measured the land of the defendant situated in S.No.647 and fixed boundaries and gave Ex.B-1.

He further deposed that though he gave notice to the plaintiffs , but the plaintiffs refused to take notice. He further deposed that S.No.647 was not sub-divided as on the date of issue of Ex.B-1.

29.The evidence of Pws.4 and Dw.5 shows that the S.No.647 was not sub-divided. Pw.4 categorically deposed that due to mistake in the

O.S.No. 814/2006

17 dt. 16-4-2012 records shown as S.No.647/2. Where as according to defendant, their land is situated in S.no.647 and Dw.1 also got measured the land from Dw.5 and he issued Ex.B-1. Dw.3 who purchased the land from defendant to an extent of

Ac.0-10 cents categorically deposed that the defendant sold away Ac.0-50 cents out of Ac.0-80 cents and now he is in possession of Ac.0-30 cents of land..

30.The defendant himself examined as Dw.4. He deposed that he sold Ac.0-50 cents of land out of Ac.0-80cents and at present he is in possession of ac.0-30 cents of land. It shows that there is no identity dispute of the property of the defendant in between himself and his purchasers. As per the evidence of Pw.4 and Dw.5, it shows that the

S.No.647 was not sub-divided. Even during the pendency of the suit also, the plaintiffs not taken any steps to find out exact location of his property. It shows that the plaintiffs failed to identify their land.

31.Moreover the suit is filed for permanent injunction. The plaintiff has to prove the possession of the suit schedule property as on the date of filing of the suit. Admittedly in this case, the plaintiffs filed Exs.A-1 to A-7. Out of that Exs.A-1 to A-5 are the adangals for the fasali 1418 and 1419. These documents are pertaining to subsequent to filing of the suit.

The plaintiffs not filed any single document to show his possession as on the date of filing of the suit.

32.In this case, the plaintiffs failed to prove the possession of the plaint schedule property as on the date of filing of the suit. As per the evidence of Pws.1 to 3, it appears that the plaintiffs failed to identify their property and claiming the rights over the property of the defendant, on that plaintiffs filed this suit against the defendant. Admittedly as per Ex.B-1,

O.S.No. 814/2006

18 dt. 16-4-2012

Dw.5 got surveyed the land of the defendant and fixed the boundaries.

There is no identity dispute of the property of the defendant. As per the boundaries of the plaint schedule property and the property of the defendant, it shows that the plaint schedule property is situated abutting to the defendant's property. In the cross-examination of Dw.2, he categorically deposed that in between the land of Challa Yasodamma and defendant, there is a karala dibba is situated. After the said karnala dibba, the land of Challa

Yasodamma is situated. The eastern boundary of Challa Yasodamma is

Muthukur Road. Admittedly as per the plaint schedule, the norther boundary of the plaint schedule property is the land of Challa Yasodamma.

As the defendant land is already fixed with boundaries by Dw.5. Hence there is no identity dispute of the property of the defendant. As per the evidence of Pws.1 to 4, it is proved that the plaintiffs failed to identify the exact location of the property and claiming the rights of the property of the defendant.

33.The learned counsel for the defendant relied on a decision reported in 2009 (3) ALD 416 – (KURELLA NAA DRUVA VUDAYA

BHASKARA RAO. //VS.// GALLA JANIKAMMA @

MACHARAMMA), In the said Judgment in para No.47, the Hon'ble High

Court held that:

“It is well known that a document, which comes into existence subsequent to the filing of the suit , cannot be taken into consideration for deciding the rights of the parties to the suit.

In this case also, the plaintiff filed Exs.A-5 to A-7. Ex.A-5 is the Village account No.3 adangal for the fasali 1419, it shows that the father of the Ist plaintiff shown as pattadar and possession of Ac.0-80 cents in S.No.647.

Ex.A-6 is the Adangal copy for the fasali 1418 , it shows that the plaintiff

O.S.No. 814/2006

19 dt. 16-4-2012

No.2 is in possession of pattadar and possessor to an extent of Ac.0-40 cents of S.No.647. Ex.A-7 is the No.3 adangal copy for the fasali 1418. It shows that the deceased Ist plaintiff shown as pattadar and possessor of Ac.0-40 cents in S.No.647. All these documents pertaining to subsequent to filing of the suit. So also Exs.X-1 to X-3 filed subsequent to filing of the suit documents. Hence these documents cannot be considered by this Court to prove the possession of the plaintiffs over the plaint schedule property. The other documents are the sale deeds Exs.A-1 to A-4 are the sale deeds.

Hence the plaintiffs failed to prove the possession of the suit schedule property as on the date of filing of the suit. As per the above discussion, this Issue No.1 is hereby answered in favour of the defendant and against the plaintiffs.

34.ISSUE NO. 2:

In the result, the suit is dismissed with costs.

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

pronounced by me in the open Court, this the 16th day of April, 2012. .

I Additional Junior Civil Judge,

S.P.S.R. Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PLAINTIFFS:

Pw.1: Pydi Masthanaiah.

Pw.2: Pydi Ragaveni.

Pw.3: Poonamalli Subrahmanyam.

Pw.4: Veluru Mohan Rao.

O.S.No. 814/2006

20 dt. 16-4-2012

FOR DEFENDANT:

Dw.1: Mylavaram Gopi.

Dw.2: NataariBabaiah.

Dw.3: Karreddula Audiseshaiah.

Dw.4: Mylavaram Babu.

Dw. 5: M. Ramu, Mandal Surveyor, Allur Mandal.

DOCUMENTS MARKED

FOR PLAINTIFFS:

Ex.A-1: Original Registered sale deed dated 28-1-1991 executed by

Kailasam Hymavathamma in favour of Phdi Subbaramaiah.

Ex.A-2: Original Registered sale deed dated 28-8-1989 executed by Challa

Yasodamma in favour of plaintiffs' father vendor i.e., Kailsam

Hymavathamma.

Ex.A-3: Certified copy of Registered sale deed dated 28-3-1984 executed by Vuranduru Venkata Prabhakar Rao in favour of M. Gopal Rao.

Ex.A-4:Certified copy of Registered sale deed dated 25-1-1988 executed by Mylavaram babu in favour of Suri Rami reddy.

Ex.A-5: Village account No.3 adangal for the fasali 1419 issued by

Tahsildar, Muthukur mandal, Nellore district. Dated 10-11-2010,

Ex.A-6: Village account No.3 adangal for the fasali 1418 issued by Village

Revenue Officer, Bramhadevam village, Muthukur mandal Nellore District.

Ex.A-7: Village account No.3 adangal for the fasali 1418 issued by Village

Revenue Officer, Bramhadevam village, Muthukur mandal Nellore District.

Ex.X-1: Field Map of S.No.647 of Brahmadevam village issued by

Tahsildar, Muthukur.

O.S.No. 814/2006

21 dt. 16-4-2012

Ex.X-2: Adangal copy for the fasali 1419 issued by Tahsildar, Muthukur mandal, Nellore District.

Ex.X-3: 1-B register copy for the year 2009 issued by Tahsildar, Muthukur

Mandal, Nellore District.

FOR DEFENDANT:

Ex.B-1: Field Map issued by Mandal Surveyor, Muthukur dated 23-06-2006.

Ex.B-2: Certified copy of sale deed dated 28-3-1984 executed by Vuranduru

Venkata Prabhakar rao in favour of the defendant.

Ex.B-3: Cist receipt dated for the fasali 1400 to 1415 dated 2-3-2006.

Ex.B-4: Certified copy of the public copy of the Registered sale deed dated 25-1-1988 executed by the defendant in favour of Suri Rami Reddy.

Ex.B-5: Certified copy of Registered sale deed dated 15-11-1974 executed by Chittiboina China Venkaiah in favour of Challa Yasodamma.

Ex.B-6: Certified copy of Registered sale deed dated 28-8-1989 executed by

Challa Yasodamma in favour of Kailsam Hymavathamma.

Ex.B-7; Certified copy of Registered sale deed dated 28-1-1991 executed by Kailsam Hymavathamma in favour of Pydi Subba Ramaiah.

I AJCJ,

SPSR NLR.

O.S.No. 1034/2008

1 dt. 20-4-2012

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE,

S.P.S.R. Nellore.

Friday, the Twenteieth(20th) day of April, 2012.

PRESENT; SRI M. SATISH KUMAR, B.A., LL.B.,

I Additional Junior Civil Judge,

Nellore.

O.S.No. 1034/2008

Between:

1. Kallepalli Venkata Narasimha Rao.

2. Kallepalli Prasad Rao. ... Plaintiffs.

And:

1. Veliboyin Peda Ramaiah.

2. Veliboyina Nandaiah.

3. Veliboyina Sudhakar.

4. Veliboyina Ravichandra.

5. Veliboyina Ramesh.

6. Oduru Balasubrahmanyam Reddy.

... Defendants.

This Suit coming on 17-4-2012 before me for final disposal in the presence of Sri T.Srihari , Advocate for the plaintiff and of Sri Piduru Nageswara Rao, Advocate for defendants 1 to 5, and D-6 remained absent and set exparte, and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This suit filed by the plaintiff for grant of permanent injunction, restraining the defendants, their men and agents from in any manner from interfering with the plaintiffs peaceful possession and enjoyment of the plaint schedule property and for costs.

2.The brief averments of the plaint is that the plaintiffs are the owners of the of the plaint schedule property comprised in Survey

O.S.No. 1034/2008

2 dt. 20-4-2012

No.192/1B of an extent of Ac.0-93 cents within the specific boundaries as contained the plaint schedule, which is their ancestral property surviving for them on the demise of their parents. The plaintiffs are employed in Tirupati and other places and technically come under absentee land lordsim.

Veliboyina Ramaiah and his family members defendants 1 to 4 for the last several years are very friendly with plaintiffs. The plaintiffs had entrusted supervision over the plaint schedule property on the said Veliboyina

Ramaiah and were getting it cultivated by investing their funds and getting the crops harvestly annually.

3.The plaintiffs further submit that the plaintiffs executed a document dated 8-10-2004 in favour of the said Veliboyina Ramaiah which is styled as a general Power of Attorney-Cum-Supervision deed empowering the said Veliboyina Ramanaiah to manage, supervise enter into leases or even to sell the property either in its entirety or in bits the said power of attorney-cum-deed of consideration of a sum of Rs.1,80,000/-. The document recites receipt of consideration too which is mainly based on the promise to pay the amount within a week from the date of registration of the deed. In view of the confidence and faith the plaintiffs have had in the aid

Veliboyina Ramaiah, they agreed for such a set up for payment of the amount of Rs.1,80,000/- as agreed within week.

4.The plaintiffs further submit that thereafter the promised payment not having been paid as agreed to by the said Veliboyina Ramaiah, plaintiffs have issued a notice dated 13-10-2004 calling upon the said

Veliboyina Ramaiah to make the payment of the amount and deposit service the promised amount directed to be paid immediately on service of the notice dated 13-10-2004 not having been received even by the 25th October,

O.S.No. 1034/2008

3 dt. 20-4-2012 2004, plaintiffs have caused a second notice issued revoking the General

Power of Attorney-cum-consideration document of supervision on 25-10- 2004. Both the notices were served on the said Veliboyina Peda Ramaiah.

5.The plaintiffs further submit that after the termination of the said agency plaintiffs submits Veliboyina Ramaiah fault belittled and insulted in the village and started to nurse grievance against the plaintiffs.

Recently the plaintiffs visited the village and were trying to secure some other agency to supervise cultivation operation over the plaint schedule property . At that time Sri Oduru Bala Subrahmanyam Reddy happened to meet the plaintiffs and had furnished the plaintiffs copy an Agreement of sale dated 28-9-2004 alleging as through Veliboyina Ramaiah, , S/O

Penchalaiah, his sons Nandaiah, Sudhakar, Ravichandra and Ramesh having entered in an agreement of sale for a sum of Rs.3,75,000/- , agreeing to convey two items of the suit property namely an extent of Ac.1-00 cents from out of Ac.3-64 cents comprised in S.No.191/1, patta No.158 and another extent of Ac.0-93 cents comprising Sy.No.192/1B covered by a patta no.325 of Kantepalli village,, claiming as though they have acquired the title to the said two items under a sale dated 6-7-2004. The said agreement of sale dated 28-9-2004 looks like a time bound agreement and the vendee there under claimed that he had filed a suit in O.S.452/2004 on the file of Ist

Additional Senior Civil Judge, Nellore and the said suit having been decreed

in his favour. Xerox copy of the plaint and the pleas entered by the defendants to other with a xerox process of the Judgment was also delivered to the plaintiffs by the said Balasubrahmanyam Reddy.

6.The plaintiffs further submit that it was then only the enormity of the duplicity played on the said Veliboyina Ramiah came to light. On

O.S.No. 1034/2008

4 dt. 20-4-2012 receiving the said documents, plaintiffs confirmed that the said Ramaiah has how in September, 2004 at a time when they did not even contemplate

Ramaiah to be a person to whom they wanted to commit the management of the property some time later could enter into the said agreement of sale maintain silence thereof on the date of execution of the General Power of

Attorney document and also of the subsequent developments terminating in a decree in respect of the plaint schedule property of Ac.0-93 cents which never belonged to Veliboyina Gopalaiah, in an adamant way the said

Ramaiah retorted that the plaintiffs deserves what they got for having belittled him by removing a General Power of Attorney agency an that they can do what ever they desire . In this context an extent of Ac.0-93 cents covered by item No.2 of the said alleged agreement of sale was neither the property of the Veliboyina Gopalaiah nor any other person and the plaintiffs not having conveyed interest at any point of time thereto the said Veliboyina

Gopalaiah hence the decree in O.S.No.452/2004 not binding on them.

D-has no right, title over Ac.0-93 cents which is absolutely belongs to the plaintiffs. D-1 has no authority to sell the same to anybody including the 6th defendant.

7.The plaintiffs submit that they are still in possession and enjoyment of the plaint schedule property. D-6 under the guise of decree in

O.S.No. 452/2004 is giving out that he would be take possession of property

covered under the plaint schedule property. Hence the suit.

8.D-6 set exparte.

9.The defendant No.1 filed written statement and the same was adopted by D-2 to D-5, denying all the allegations made in the plaint and admitted that the plaintiffs are the owners and possessors of the plaint

O.S.No. 1034/2008

5 dt. 20-4-2012 schedule property. The defendants also admitted that in the the absence of the plaintiff in the village, the plaintiffs had entrusted the supervision of the plaint schedule property on the said D-1. The defendants also admitted that the notice issued by the plaintiffs under Exs.A-2 and A-3. The defendants further contended that after receiving the notices, they approached the plaintiffs and tried to explain the real facts. But the plaintiffs refused to hear. D-2 to D-5 denied that the execution of the Agreement of sale in favour of D-6 under Ex.A-5. They further contended that D-1 to D-5 executed Agreement of sale in favour of Jayanachandra Reddy who is close relative of D-6 and the said Jayachandra Reddy could not perform his part of the contract and joined hands with D-6 and forged and filed the suit in O.S.No. 452/2004 under Ex.A-6. They further contended that on the decree under Ex.A-7 they filed appeal before the Hon'ble high Court and it is pending and prays to dismiss the suit.

10.Basing on the above pleadings, the following issues have been settled for trial:

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

2. To what relief?

11. During the course of trial, on behalf of the plaintiffs, Pws.1 and 2 were examined and got marked Exs.A-1 to A-12. On behalf of the defendant, Dw.1 was examined and no documents were marked.

12..Heard both sides.

13. ISSUE NO.1:

The case of the plaintiff is that the plaintiffs are the owners and possessors of the plaint schedule property. Originally the suit schedule property belongs to their ancestral property. The plaintiffs further contended

O.S.No. 1034/2008

6 dt. 20-4-2012 that the plaintiffs are employees in Tirupati and other places. The plaintiffs further contended that one Veliboyina Ramaiah i.e., D-1 and his family members i.e., D-1 to D-5 herein for the last several years are very friendly with the plaintiffs. The plaintiffs entrusted supervision over the plaint schedule property and the Veliboyina Ramaiah i.e., D-1 and were getting it cultivated by investing their funds and getting the crops harvestly annually.

The plaintiffs further contended that they executed document dated 8-10- 2004 in favour of Veliboyina Ramaiah i.e., D-1 which is styled as a General power of Attorney -Cum-Supervision deed empowering the said Veliboyina

Ramaiah i.e., D-1 to manage, supervise enter into leases or even to sell the property either in its entirety or in bits and the said Power of attorney cum deed of consideration of a sum of Rs.1,80,000/- . As per the documents of recites receipt of consideration too which is mainly based on the promise to pay the amount within a week from the date of registration of the deed. In view of the confidence and faith, they had in the said Veliboyina Ramaiah i.e., D-1 they agreed to such a set up for payment of the amount of

Rs.1,80,000/- as agreed within week. Thereafter the said av not paid the amount. Hence they issued notice on 13-10-2004 . thereafter they issued legal notice to D-1 under Ex.A-3 demanding to pay the amount. Though the notice was received, D-1 not paid the mount. Hence they again issued legal notice under by revoking the Ex.A-1 General Power of Attorney-Cum-

Consideration document of supervision on 25-10-2005. Both the notices were served on the said Veliboyina Ramaiah i.e., D-1. The plaintiff further contended that after the termination of the said agency, D-1 falt belittled and insulted in the village and started to nurse grievance against them. The plaintiffs further contended that recently the plaintiff visited the village and

O.S.No. 1034/2008

7 dt. 20-4-2012 were tying to secure some other agency to supervise cultivation operation over the plaint schedule property. At that time, D-6 met the plaintiffs and furnished the copy of the Agreement of Ex.A-5 by stating that he entered agreement with D-1 to D-5 for Rs.3,75,000/- agreeing to convey two items of the suit property of Ex.A-5 i.e., Ac.1-00 cents from out of Ac.3-64 cents comprised in S.No.191/1 , patta No.157 and another extent of Ac.0-93 cents comprising S.No.192/1B covered by a patta No.325 of Kantepalli village claiming as though they have acquired the title to the said two items under a sale deed dated 6-7-2004. D-4 further informed that he filed

O.S.No.452/2004 on the file of I Additional Senior Civil Judge, Nellore and

obtained decree in the said suit.

14.The plaintiff further contended that it was then only the enormity of the duplicity played on the said D-1 came to light. On receiving the said documents, the plaintiff confirmed that the D-1 has to how in

September, 2004 at a time when they did not even contemplate D-1 to be a person to whom they wanted to commit the management of the property.

They further contended that the suit schedule property is not belonged to

Veleboyina Gopalaiah. The plaintiffs further contended that item No.2 of

Ex.A-5 is Ac.0-93 cents and the property of Veliboyina Goplaiah nor any other person and they not having conveyed and interest at any point of time thereto the aid Veliboyin Gopalaiah and hence they are not bound by the proceedings which have ultimate in a decree in O.S.No.452/2004 which they ignore. They further contended that D-1 has no right , title over

Ac.0-93 cents which is absolutely belongs to D-1 and Ist plaintiff and D-1 has no authority to sell the same to anybody including the 6th defendant.

They further contended that the plaintiffs are in possession of the suit

O.S.No. 1034/2008

8 dt. 20-4-2012 schedule property. The 6th defendant under the guise of decree in

O.S.No.452/2004 is giving out that he would be take possession of property

covered under the plaint schedule property. Hence the suit for permanent injunction.

15.On the other hand, the defendants admitted that the plaintiffs are the owners and possessors of the plaint schedule property. The defendants also admitted that in the absence of the village, the plaintiff had entrusted supervision over the plaint schedule property to D-1. The defendants also admitted that the notice issued by the plaintiffs under Exs.A-2 and A-3. The defendants further contended that after receiving the notice, they approached the plaintiff and tried to explain the real facts. But the plaintiffs refused to her. D-1 to D-5 denied that the execution of the Agreement of sale in favour of D-6 under Ex.A-5. They further contended that D-1 to D-5 executed

Agreement of sale in favour of Jayachandra Reddy who is close relative of

D-6 and the said Jayachandra Reddy could not performed his part of contract joined hands with D-6 forged an agreement of sale and got the suit in

O.S.No.452/2004 under Ex.A-6. They further contended that on the decree

under Ex.A-7, they filed appeal before the Hon'ble High Court and it is pending and prays to dismiss the suit.

16.On behalf of the plaintiff, the 2nd plaintiff examined as Pw.1 and got marked Exs.A-1 to A-12. Ex.A-1 is the Certified copy of the

General power of Attorney-cum-Supervision deed dated 2-10-2004 executed by the plaintiff's in favour of the Ist defendant. Ex.A-2 is the Legal notice issued by the plaintiff to D-1 dated 13-10-2004. Ex.A-3 is the legal notice

dated 25-10-2004 issued by the plaintiff to the Ist defendant. Ex.A-4 is the

Certified copy of 10(1) adangal issued by the Deputy Tahsildar,

O.S.No. 1034/2008

9 dt. 20-4-2012

Venkachalam mandal. Ex.A-5 is the Certified copy of the sale Agreement between the defendants 1 to 5 to the 6th defendant. Ex.A-6 is the Certified copy of the plaint in O.S.No.452/2004. Ex.A-7 is the Certified copy of the decree and Judgment in O.S.452/2004. Ex.A-8 is the Original copy of

Revocation deed dt.28-8-2008. Ex.A-9 is the original No.3 account for the fasali 1420. Ex.A-10 is the cist receipt dt. 10-3-2012. Ex.A-11 is the Xerox copy of the pattadar pass-book and Ex.A-12 is the Copy of representation to mandal Revenue Officer, Venkatachalam dated 26-7-2004. Ex.A-1 is the

Certified copy of the General Power of Attorney. In Ex.A-2 it shows that the plaintiffs 1 and 2 executed Ex.A-1 in favour of defendant No.1, authorising

D-1 to manage, supervise enter into lease or or even to sell the property either in its entirety or in bits the said power of attorney cum deed of consideration and also to look the court cases as General Power of Attorney holder of the plaintiffs. The contents of Ex.A-1 shows that the plaintiffs received a sum of Rs.1,80,000/- under Ex.A-1 from defendant No.1. In this case, D-1's name in the plaint shown as Veliboyina Peda Ramaiah. Where as in Ex.A-1, the name of D-1 shown as Veliboyina Ramaiah. But D-1 in the written statement not disputing the same. Ex.A-2 is the legal notice

dated 13-10-2004 issued by the plaintiffs by stating that the plaintiffs

executed Ex.A-1. But D-1 not paid the amount mentioned in Ex.A-1 of

Rs.1,80,000/- and demanding to pay the amount. The acknowledgement card also filed and it shows that it is served on D-1. Ex.A-3 is the another legal notice dated 25-10-2004 issued by the plaintiffs to D-1 by stating that as D-1 not complied the notice of Ex.A-2. As such the plaintiffs revoked

Ex.A-1. Ex.A-4 is the 10(1) adangal. It shows that for the fasali 1418. The plaintiffs shown as possession of Ac.0-93 cents in Survey No.192-1B.

O.S.No. 1034/2008

10 dt. 20-4-2012

Ex.A-5 is the Certified copy of the sale agreement. It shows that D-1 to D-5 executed Agreement of sale in favour of D-6 dated 28-8-2004. They entered into the Agreement of sale with D-1 of item Nos.1 and 2 of the properties of Ex.A-5. Item No.2 of the property is Ac.0-93 cents situated in

S.No. 192/1-B and patta No. 325 and boundaries as under: East: Land of

Eliboyina Pullaiah; South: Land of Dabbugunta Sudhakaraiah.; West: Land of S.K. Musam Saheb; and North: Golagamudi Road. Ex.A-6 is the certified copy of plaint in O.S.No.452/2004. It shows that D-6filed Specific performance of contract against D-1 to D-5 directing the defendants to execute the registered sale deed in favour of the plaintiff relating to agreement of sale sale under Ex.A-5. Ex.A-7 is the Certified copy of decree and Judgment in O.S.No.452/2004. It shows that the Hon'ble I Additional

Senior Civil Judge, Nellore granted decree in favour of D-6 against D-1 to

D-5. Ex.A-8 is the Registered cancellation of General power of attorney deed executed by plaintiff in favour of D-1 by cancelling Ex.A-1 document.

Ex.A-9 is the Village account No.3 adanagal for the fasali 1420. It shows that K. Varaprasad Rao shown as pattadar and possessor of the land in an extent of Ac.0-93 cents in S.No.192-1B. Ex.A-10 is the cist receipt dated 10-3-2012. In Ex.A-10 the 2nd plaintiff paid cist to the government for the fasali 1413 to 1419 for this land. Ex.A-11 is the photostat copy of pattadar pass-book. It shows that Kallapalli Lakshmi Varaprasad Rao name is mentioned. Ex.A-12 is the photostat copy of petition submitted to Mandal

Revenue Officer dated 26-7-2004 by C.L.V. Prasad Rao addressed to

Mandal Revenue Officer for grant of pattadar pass-books.

17.Pw.1 was cross-examined by the defendants' counsel. In the cross-examined Pw.1 admitted that the defendants taken plea in

O.S.No. 1034/2008

11 dt. 20-4-2012

O.S.No.452/2004 that they did not executed Ex.A-5 in favour of D-6. Pw.1

also admitted that they gave power of attorney in favour of D-1 dated 8-10- 2004. Pw.1 further deposed that Ex.A-5 dated 28-9-2004 , as such it is not binding on the plaintiffs as it is earlier to Ex.A-1 document. He denied the suggestion that they colluded with the6th defendant and got filed the suit to harass D-1 to D-5.

18.One Asthoti Venkateswari examined as Pw.2. He deposed that the plaintiffs are the absolute owners of the plaint schedule property. The plaintiffs are raising crops in the plaint schedule property and he is doing supervision of agricultural operations on behalf of the plaintiff from 2004 onwards and the defendants have no right , title and possession over the plaint schedule property. Pw.2 was cross-examined by the defendants counsel.. he denied the suggestion he is not working for the plaintiff and he is deposing false.

19.On behalf of the defendants, D-1 examined as Dw.1 and no documents were marked. He deposed that the plaintiffs are the owners of

Ac.0-93cents of land in Kantepalli village. He also deposed that he did not pay the amount to the plaintiffs as they have not shown the power of attorney. He further deposed that after receiving of the legal notice , he tried to explain them, but they did not hear his words. He further deposed that he has not executed any Agreement of sale in favour of D-6 and it is a forged one. He further deposed that he executed Agreement of sale in favour of one Jayachandra Reddy who is a relative of D-6. He further deposed that D-6 filed suit under Ex.A-6 and it was decreed and they filed an appeal before the Hon'ble high Court of Andhra Pradesh on the Judgment of Ex.A-7.

O.S.No. 1034/2008

12 dt. 20-4-2012

20.Dw.1 was cross-examined by the plaintiffs counsel. In the cross-examination, Dw.1 admitted that the plaintiffs are the owners of the plaint schedule property and the suit schedule property is their ancestral property of the plaintiffs. He further deposed that earlier he was the managing and supervising of the cultivation of the plaint schedule property on behalf of the plaintiffs. He further deposed that at present he is not supervising the suit schedule property now on behalf of the plaintiffs. He also admitted that the plaintiffs are in possession of the plaint schedule property. He also admitted that the plaintiffs executed Ex.A-1 in his favour.

He also admitted that he has not paid the amount as per the terms and conditions of Ex.A-1 to the plaintiffs. He further deposed the plaintiffs issued legal notice under Exs.A2 and A-3 b cancelling the General power of

Attorney of Ex.A-1. He further deposed tht he has no objection for grant of permanent injunction in favour of the plaintiffs.

21.In this case, the plaintiffs contended that they executed Ex.A-1

General power of Attorney -cum-Supervision in favour of D-1 for supervising and managing the plaint schedule property and also to sell the plaint schedule property for a valuable consideration of Rs.1,80,000/-. But

D-1 not paid the amount, as such they issued Ex.A-2 legal notice, demanding D-1 to pay the amount. Inspite of that D-1 not paid the amount.

Hence they issued another legal notice to D-1 by revoking Ex.A-3. After that they came to know that D-1 to D-5 executed Agreement of sale in favour of the D-6 . But they have not registered the same in favour of D-6.

Then D-1 filed a suit under Ex.A-7. But D-1 not executed any Agreement of sale in favour of D-6. But O.S.No.452/2004 was decreed in favour of D-6 and the plaintiffs apprehended that D-6 may under the guise of decree in

O.S.No. 1034/2008

13 dt. 20-4-2012

O.S.No.252/2004 interfere their possession of the plaint schedule property.

22.In this case D-1 admitted the execution of Ex.A-1 . D-1 also admitted that the plaint schedule property originally belongs to the plaintiffs.

Dw-2 to D-5 also admitted that issuing of legal notices under Exs.A-2 and

D-3, D-2 to D-5 contended that they have not executed Ex.A-5.

23.Admittedly the suit is filed only for bare injunction. The plaintiff has to prove the possession of the plaint schedule property as on the date of filing of the suit. The plaintiffs filed Ex.A-4 No.3 adanagal for the fasali 1418 shows that the plaintiffs are the possession of the plaint schedule property and Ex.A-4 also shows that the plaint schedule property is an ancestral property. In this case, the defendant no.1 who is examined as

Dw.1 also admitted that the plaintiffs are the owners of the plaint schedule property and the plaintiffs are in possession of the plaint schedule property.

As per Ex.A-5 wherein D-1 to D-5 mentioned that they purchased the property mentioned in Ex.A-5 from Veliboyina Goplaiah. Where as in the written statement in this case and also in the evidence of Dw.1, he admitted the ownership and possessor of the plaint schedule property of the plaintiffs.

But the defendant No.1 not explained how he mentioned on Ex.A-3 that D-2 to D-5 purchased item No.2 of the property under Ex.A-5 which is the suit schedule property in this case from Veliboyina Gopalaiah. Where as the plaintiffs contended that the said Veliboyin Gopalaiah is no way concerned with the plaint schedule property. As the suit is only for bare injunction, hence this Court is confined only to the possession of the plaint schedule property as on the date of filing of the suit. In this case as Dw-2 to D-5 admitted the ownership and possession of the suit schedule property of the plaintiffs. More over in this case the suit O.S.N.452/2004 was already

O.S.No. 1034/2008

14 dt. 20-4-2012 decreed by the Hon'ble I Additional Senior Civil Judge's court, Nellore, as the defendant contended that they filed appeal on the judgment of

O.S.No452/2004 under Ex.A-7 before the Hon'ble High Court. Though D-1

denied the execution of Ex.A-5 , but O.S.No.452/2004 was decreed as this is a suit for bare injunction, this Court not going to the facts relating to

O.S.No.452/2004. Hence as per the evidence of Pws.1 and 2, and Dw.1

coupled with Ex.A-4, the plaintiffs proved that they are in possession of the plaint schedule property. Hence this Issue No.1 is hereby answered in favour of the plaintiffs and against the defendants.

24.ISSUE NO. 2:

In the result, the suit is decreed by granting permanent injunction, restraining the defendants, their men and agents from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property except due process of law. No costs.

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

pronounced by me in the open Court, this the 20th day of April, 2012. .

I Additional Junior Civil Judge,

S.P.S.R. Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PLAINTIFFS: FOR DEFENDANTS:

Pw.1: Kallepalli Prasad Rao. Dw.1: Veliboyina Peda Ramaiah.

Pw.2: Asthoti Venkateswrlu.

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A-1: Certified copy of General Power of Attorney -Cum-Supervision deed dated 2-10-2004 executed by plaintiffs in favour of Ist defendant.

O.S.No. 1034/2008

15 dt. 20-4-2012

Ex.A-2: Office copy of legal notice dated 13-10-2004 issued by the plaintiff to Ist defendant.

Ex.A-3: Officer copy of legal notice dt.25-10-2004 issued by the plaintiffs to Ist defendant.

Ex.A-4: Certified copy of 10(1) adangal issued by the Village revenue

Officer, Kantepalli village, Venkatachalam mandal dt.6-11-2008.

Ex.A-5: Certified copy of sale agreement dated 28-9-2004 between the defendants 1 to 5 to the 6th defendant.

Ex.A-6: Certified copy of plaint in O.S.No.452/2004 on the file of Hon'ble

I Additional Senior Civil Judge, Nellore.

Ex.A-7: Certified copy of Decree and Judgment in O.S.No.452/2004 on the file of Hon'ble I Additional Senior Civil Judge, Nellore.

Ex.A-8: Original copy of Revocation deed executed by the plaintiff in favour of Ist defendant.

Ex.A-9: Original No.3 account for the fasali 1420 issued by Village

Revenue Officer, Kantepalli village, Venkatachalam Mandal.

Ex.A-10: Cist receipt for the fasali 1413 to 1419 dated 10-3-2012.

Ex.A-11: Photostat copy of pattadar pass-book stands in the name of

Kalleplli Lakshmi Varaprasad Rao.

Ex.A-12: Photostat copy of Representation given by C.L.V. PrasadRao addressed to the Mandal Revenue Officer, Mandal Revenue Office,

Venkatachalam mandal, dated 26-7-2004.

FOR DEFENDANTS: NIL

I AJCJ,

SPSR NLR.

O.S.No. 254/2007

1 dt. 19-6-2012

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE,

S.P.S.R. Nellore.

Tuesday, the Nineteenth(19th) day of June, 2012.

PRESENT; SRI M. SATISH KUMAR, B.A., LL.B.,

I Additional Junior Civil Judge,

Nellore.

O.S.No. 254/2007

Between:

1. Chevuru Krishnaiah.

2. Chevuru Devasenamma. ... Plaintiffs.

And:

Velupula Kondaiah. ... Defendant.

This Suit coming on 29-3-2012 before me for final disposal in the presence of Sri P.V.Ramana Reddy, Advocate for the plaintiffs and of Sri Piduru Nageswara Rao, Advocate for defendant, and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintiffs for grant of permanent injunction.

2.The brief averments of the plaint is that the property of item

No.1 of the plaint schedule property belongs to Ist plaintiff and item No.2 of the plaint schedule belongs to 2nd plaintiff and the Mandal Revenue Officer,

Muthukur issued a pass-book in relation to entire plaint schedule property in favour of 2nd plaintiff. Both the plaintiffs are doing fish culture in the plaint schedule property since 20 years. One Boddu Ramanamma is having Ac.0- 16 cents of dry land to the west of the points AB of the rough sketch. The defendant is falsely claiming that he purchased the said land from Boddu

Ramanamma and he is also falsely claiming that he is having right over the land between points ABCD shown in rough sketch except the plaintiffs

O.S.No. 254/2007

2 dt. 19-6-2012 nobody including defendant has right over the same. At points A and C there is a bund at a height of 6 feet, width of 4 feet. The said bund is in existence since 20 years. Except the plaintiffs nobody have right over the same. One month back the defendant removed the bund at point A to some extent, thereafter the first plaintiff with the help of his neighbours drove away the defendant with great difficulty. Again the defendant is making hectic efforts for the last 3 days to remove the entire bund at points A and C.

Hence the suit for permanent injunction restraining the defendant his men from removing the bund at points A and C.

3.The defendant filed his written statement, denying all the allegations made in the plaint and submitted that the plaintiff giving wrong boundaries claiming that the western boundary of the land in the plaint schedule as land of Boddu Ramanamma to some extent and plaintiff to some extent and Government to some extent knowing fully well that the said land in S.No.98/16 in an extent of Ac.0-24 cents belonged to this defendant. The defendant further submits that one Velpula Sathyavathamma tried to disturb the possession of the defendant, he filed the suit before this Court in

O.S.No.743/1996 for declaration and permanent injunction of relating to

the land in S.No.98/16 and the said suit was decreed after due trial. On the said Judgment, the said Sathyavathamma filed an appeal vide

A.S.No.26/2001 before the Hon'ble IVth Additional District Judge, Nellore

and the said appeal was dismissed . The Ist plaintiff examined as Dw.3 in

O.S.No.743/996 on behalf of the Velupula Sathyavathamma . The plaintiff

having knowledge that S.No.98/16 in an extent of Ac.0-24 cents belongs to the defendant, but making an allegation that the defendant is claiming that he purchased the said land from Boddu Ramanamma. As the plaintiff

O.S.No. 254/2007

3 dt. 19-6-2012 approached with false allegations, as such he is not entitled for equitable relief of injunction. The rough sketch also not correct. The defendant further submits that S.No.98/16 is having number of sub-divisions and the defendant will take necessary steps to send for the original F.M.B. Showing the particulars of the said survey number. As the Ist plaintiff is having knowledge of the declaration suit since he is witness now he cannot claim nor plead ignorance of it. The defendant further submits that there are discrepancies in the contentions of the plaintiff relating to the rough sketch of the plaint schedule property. The defendant further submits that the allegations that Boddu Ramanamma is having Ac.0-16 cents of dry land to the west of the points A,B of the rough sketch is absolutely false. The first plaintiff who is a witness in O.S.No.743/1996 stating that Boddu

Ramanamma had executed an agreement in favour of Sathyavathamma and now changing his stance now claiming that she is having Ac.0-16 cents of land and also stating that Ramanamma is having only Ac.0-16 cents shows the falsity of the case. He also denied the contention of the plaintiffs that he removed the bund at point “A” to some extent. Then the Ist plaintiff and with the help of neighbours drove away the defendant. The defendant further submits that the plaintiffs are related to Velpula Sathyavathamma and as the defendant obtained a decree of declaration and injunction against the said Sathyavathamma in order to cause trouble and harassment to the defendant, they filed this false suit with false allegations. The defendant further submits that the S.No.98/16 is not a rectangular plot but its shape is shown in rough sketch. He further submits that he is in possession and enjoyment of the same had never tried to encroach or making any claim other than his land in S.No.98/16 and the suit is misconceived one. The

O.S.No. 254/2007

4 dt. 19-6-2012 defendant further submits that the pass-book filed by the plaintiffs, wherein it clearly shows that the S.No.98/16 in an extent of Ac.0-24 cents was included which was issued in the name of Devasenamma and 2nd plaintiff and was rounded off. The defendant further submits that the plaintiffs,

Sathyavathamma, her husband Bala krishnaiah, the Talari of the village and the V.A.O had fabricated the records and and this suit is filed with such fabricated documents to trouble and harass the defendant only and prays to dismiss the suit with costs.

4.Basing on the above pleadings, the following issues have been settled for trial:

1. Whether the western boundary given for the plaint schedule property is correct?

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

3. To what relief?

5. During the course of trial, on behalf of the plaintiffs, Pws.1 to 3 were examined and got marked Exs.A-1 to A-3 and Ex.C-1 through Pw.3. .

On behalf of the defendant, Dw.1 was examined and got marked Exs.B-1 to

B-6 through Pw.1 and also marked Exs.B-7 to B-13.

6.Heard both sides.

7. ISSUE NO.1 :

In this case, the plaintiff contended that item No.1 of the plaint schedule property belongs to the Ist plaintiff and item No.2 of the plaint schedule property belongs to the 2nd plaintiff and the Mandal Revenue

Officer, Muthukur issued a pass-book in relation to the entire plaint schedule property in favour of2nd plaintiff. Both plaintiffs are doing fish culture in the plaint schedule property since 20 years. One Boddu Ramanamma is having Ac.0-16 cents of dry land to the west of the points AB of the rough

O.S.No. 254/2007

5 dt. 19-6-2012 sketch. The defendant is falsely claiming that he purchased the said land from Boddu Ramanamma and he is also falsely claiming that he is having right over the land between points ABCD shown in rough sketch. The plaintiffs further contended that the defendant has no right over the same except the plaintiffs nobody has right over the same. The plaintiffs further contended that the points A and C there is a bund at a height of 6 feet, width of 4 feet. And the said bund is in existence of since 20 years. Except the plaintiffs nobody have right over the same. One month back the defendant removed the bond at point A to some extent , thereafter the first plaintiff with the help of his neighbours drove away the defendant with great difficulty and the defendant is making hectic efforts for the last 3 days to remove the entire bund at points A and C. Hence the suit for permanent injunction, restraining the defendant from removing the bund at points A and C as shown in the rough sketch.

8.On the other hand, the defendant contended that the plaintiff wrongly shown the western boundary by stating that the defendant falsely claiming that he purchased the said land from one Boddu Ramanamma. The defendant further contended that the plaintiff is having knowledge that on western side of the plaint schedule property, the defendant is having land except Ac.0-24 cents. Previously the defendant filed O.S.No.743/1996 for declaration and permanent injunction in relating to the land in S.No.98/16 to an extent of Ac.0-24 cents against one Velupula Sathyavathamma when she tried to disturb the possession of the defendant and the said suit was decreed in his favour and the said Sathyavathamma filed appeal vide

A.S.No.26/2001 on the file of Hon'ble IV Additional District Judge, and the

said appeal was dismissed. The plaintiff also gave evidence in this case as

O.S.No. 254/2007

6 dt. 19-6-2012 Dw.3 on behalf of Sathyavathamma . But the plaintiffs purposefully deposing false. He also denied that Boddu Ramanamma is having Ac.0-16 cents of dry land to the west of the points A,B of the rough sketch. He also deneid that the plaintiffs without having any right to some extent, they tried to remove the entire bund at points A and C. The pass-book filed by the plaintiffs also shows that in S.No. 98/16 in an extent of Ac.0-24 cents was included which was issued in the name of Devasenamma and 2nd plaintiff was rounded off and prays to dismiss the suit.

9.In this case the defendant contended that the plaintiff shown wrongly the western boundary by stating that the defendant claiming the said land as it is belongs to him. Moreover in this case, the plaintiff stating that the defendant tried to remove the bund at points A and C and the plaintiff is having right over the said bund and prays to grant permanent injunction restraining the defendant to remove the points A and C.

10.For grant of injunction, the plaintiff has to prove that the said bund is situated within the plaint schedule site and the defendant has tried to remove the said bund without having any right. More over the defendant also stated that the plaintiff wrongly shown the western boundary and the defendant claiming rights only over his property. As seen from the rough plan field by the plaintiffs, it shows that the western site of the fist pond of the plaintiff shown the land of the defendant. Where as the plaintiff who examined as Pw.1 and got marked Exs.A-1 to A-3. Ex.A-1 is the Certified copy of the Registered sale deed dated 28-8-=1985 executed by Neela

Sankaraiah in favour of 2nd plaintiff. Ex.A-2 is the Certified copy of the

Registered sale deed dated 19-2-1986 executed by Boddu Kanthamma and others in favour of the Ist plaintiff. Ex.A-3 is the original of Pattadar pass-

O.S.No. 254/2007

7 dt. 19-6-2012 book issued by the Revenue Officer, Muthukur Mandal, Nellore District. He deposed asper the plaint averments.

11.In the cross-examination, on one hand, Pw.1 deposed that the defendant is not having any land near the plaint schedule property.

Admittedly in the plaint rough plan, it shown the defendant's property.

Though Pw.1 in the cross-examination, initially he deposed that he do not know whether there is a suit between the defendant herein and Velpula

Sathyavamma vide O.S.No.743/1996. Subsequently he admitted that he deposed his evidence as Dw.3 in O.S.No.743/1996 on behalf of Velpula

Sathyavathamma. In the plaint, the western boundary shown as under:

West: the land of Boddu Ramanamma to some extent (defendant falsely claiming the said land belonging to him) and plaintiff to some extent and government to some extent. Where as in the plaint he contended that one

Boddu Ramanamma is having Ac.0-16 cents of dry land to the west of the points AB of the rough sketch. On the other hand, the defendant contended that he is having Ac.0-24 cents of land in S.No.98/16 which is situated to the west of the property of the defendant. To prove the contention of the defendant, the defendant filed Ex.B-7 Certified copy of Judgment in

O.S.No.743/1996 dated 16-1-2001. Ex.B-8 is the Certified copy of Decree

in O.S.No.743/1996. Ex.B-9 is the Certified copy of Agreement of sale with possession in favour of the defendant dated 15-9-1993. Ex.B-10 is the Certified copy of Registered G.P.A in favour of Velupula Krishnaveni

dated 5-2-1994. Ex.B-11 is the Certified copy of Registered sale deed in

favour of the defendant dated 31-5-1996.

12.On perusal of Ex.B-9 it shows that Boddu Ramanama and her sons executed an Agreement of sale in favour of the defendant for the land in

O.S.No. 254/2007

8 dt. 19-6-2012 S.No.98/16 to an extent of Ac.0-24 cents. Ex.B-10 is the Certified copy of

Registered G.P.A. Executed by Boddu Ramanamma and her sons in favour of the wife of the defendant i.e., Velupula Krishnaveni. Relating to the property of S.No.98/16 of Ac.0-24 cents. Ex.B-11 is the Certified copy of

Registered Sale deed dated 31-5-1996 executed by wife of defendant

Velupula krishnaveni and also Boddu Ramanamma and her sons of sale deed in favour of the defendant for the land in S.No.98/16 to an extent of Ac.0-24 cents of Vallur village. In Ex.B-11 the boundaries mentioned as eastern boundary and northern boundary of the land of plaintiffs 1 and 2. As such it is proved that the defendant's property is situated to the west of the plaintiffs property. More over in this case Pw.1 admitted that he gave evidence in

O.S.No.743/1996 on behalf of Velupula Sathyavathamma as Dw.3.

Admittedly as per Ex.B-1 to B-6 and Ex.B-7 which are relevant portions deposition of Pw.1 in O.S.No.743/1996 as Dw.3. Hence it cannot be said that Pw.1 is not having knowledge about the passing of decree in

O.S.No.743/1996 as he deposed in O.S.No.743/1996 as per Ex.B-5 that

Dw.2 is his brother by relation and he is close relative and he has been looking after the affairs of the defendant of Dw.2. Hence it is proved that as per the evidence of Pw.1 coupled with Exs.B-7 to B-11 and Exs.B-1 to B-6 that the plaintiff wrongly shown the western boundary. Therefore this Issue

No.1 is hereby answered in favour of the defendant and against the plaintiffs 1 and 2.

13.ISSUE NO.2:

In this case the plaintiffs contended that the defendant without having right tried to remove the bund at points AC and prays to grant injunction against the defendant restraining him to remove the bund at points A and C.

O.S.No. 254/2007

9 dt. 19-6-2012 the plaintiff filed Exs.A-1 and A-2. Ex.A-1 is the Certified copy of the

Registered sale deed dated 28-8-1985 pertaining to item No.2 of the plaint schedule property. Where in plaintiff No.2 purchased the land in S.No.

98/12 – Ac.0-18 cents; in S.no.98/1 – Ac.0-12 cents ; S.no.98/5 – Ac.0-03 cents, S.No.98/6 – Ac.0-03 cents, S.No.98/14 – Ac.0-02 cents, and

S.No.98/4 – Ac.0-03 cents, totalling to Ac.0-41 cents of dry land. Ex.A-2 is the Certified copy of the Registered sale deed dated 19-2-1986 , where in

Pw.1 purchased the land of item No.1 of the property. It shows that the plaintiff No.1 purchased in the land in S.No.98/11 – Ac.0-22 cents;

S.No.98/17 – Ac.0-24 cents totalling to Ac.0-46cents of dry land. Where in

Ex.A-3 pass-book filed by the plaintiffs which stands in the name of 2nd plaintiff shows that in S.No.98/5 shown as Ac.,0-04 cents instead of Ac.0-03 cents mentioned as Ex.A-1. Where as in S.No.98/2 shown in Ac.0-19 cents instead of Ac.0-18 cents as per Ex.A-1. It shows that the plaintiff is in possession of land excess than what he actually owns.

14.More over during cross-examination, Pw.1 admitted that the husband of the defendant in O.S.No.743/1996 working as Village Talari and

Pw.1 also admitted that his brother worked in Collectorate Office, Nellore.

The defendant's counsel contended that with the help of brother of the plaintiffs, the plaintiff manipulated the revenue records. As such it can be infer that the plaintiff managed the Revenue authorities and got entries in

Ex.A-3 excess land than what he actually owns. Moreover in the cross- examination of Pw.1, he deposed that their total land is Ac.1-18 cents, out of that Ac.1-00 cents is made into the fish ponds and Ac.0-18 cents of land is kept vacant. But the plaintiff filed Exs.A-1 and A-2. According to

Exs.A-1and A-2, the plaintiffs are having land Ac.0-87cents only. Where as

O.S.No. 254/2007

10 dt. 19-6-2012 in Ex.A-3 the total land shown as Ac.1-18 cents. The plaintiffs not field any documentary evidence before the Court to show that they are having Ac.1- 18cents of land. Pw.1 categorically in the cross-examination admitted that he made the fish ponds to an extent of Ac.1-00cents of land. It is not the case of the plaintiffs that apart from the suit schedule property fish ponds, they made another fish pond in some where of his property. The documents filed by the plaintiffs clearly shows that only Ac.0-87cents of land. But the plaintiffs not filed any single document before the Court to show that he is having Ac.1-18cents of land. Hence as per Exs.A-1 and A-2 it is proved that the plaintiffs are having only Ac.0-87 cents of land. But he made fish ponds in Ac.1-00 of land. The counsel for the defendant argued that the plaintiffs by showing the plaint schedule property as he is claiming the rights over the property of the defendant. When the defendant is disputing the bund site of the property, the burden lies on the plaintiffs to prove that the disputed bund is situated within the site of the plaint schedule property. But admittedly the plaintiffs not filed any single document before the Court to show that the disputed bund is situated within the plaint schedule site.

15.Though in this case, the Advocate Commissioner filed his report and the Advocate Commissioner was examined as Pw.3. He categorically mentioned in Ex.C-1 report along with rough plan that the

Commissioner shown the fish pond in his report as “EFGH” and A, A-1, A- 2,A3 , A4 and A-5 is the bund of the said pond and the bund is having about 5 feet height and width is about 6feet and on western side of the fish pond is there are standing green paddy crop,shown as B, B1andD, D1. It appears from the evidence of Pws.2 and 3 that the land of B, B21 and D, D1 is the land of the defendant.

O.S.No. 254/2007

11 dt. 19-6-2012

16.The learned counsel for the plaintiffs argued that Dw.1 in the cross-examination admitted that the plaintiff is in possession of the suit schedule property. As such the plaintiffs are entitled for permanent injunction. As per the plaint schedule, the defendant is not disputing about the ownership and title of the plaintiffs. But the defendant contended that by showing the plaint schedule property , the defendant tried to obtain permanent injunction on the property of the defendant. As such the burden lies on the plaintiffs to prove that the said disputed bund is situated within the plaint schedule site. More over Pw.2 in his evidence deposed that there is a bund at a height of 6 feet and width of 4 feet on the western side of the

Ac.0-87 cents land of the plaintiff and the same is shown as AC in the rough sketch. This part of evidence of Pw.2 clearly shows that the bund is situated to the west of the plaint schedule property. But it is not the contention of

Pw.2 that the bund is situated within the site of the plaint schedule property.

Hence Pw.2 evidence is no way helpful to the plaintiff. But to prove the said contention, the plaintiffs not filed any single document before the Court.

Hence this Court finds that there are no merits in the contention of the plaintiff. Therefore this Issue No.2 is hereby answered in favour of the defendant and against the plaintiff

17.ISSUE NO.3:

In the result, the suit is dismissed with costs.

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

pronounced by me in the open Court, this the 19th day of June, 2012.

I Additional Junior Civil Judge,

S.P.S.R. Nellore.

O.S.No. 254/2007

12 dt. 19-6-2012

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PLAINTIFF:

Pw.1: Chevuru Krishnaiah.

Pw.2: Velupula Mani krishna.

Pw.3: K. Mallikarjuna.

FOR DEFENDANTS:

Dw.1: Velupula Kondaiah.

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A-1: Certified copy of Registered sale deed dated 28-8-1985 executed byNeela Sankaraiah infavour of 2nd plaintiff.

Ex.A-2: Certified copy of Registered sale deed dated 19-2-1986 executed by

Boddu Kanthamma and others in favour of first plaintiff.

Ex.A-3: Pattadar pass-book issued by mandal Revenue officer, Muthukur

Mandal, Nellore District.

Ex.C-1: Advocate Commissioner's report marked through Pw.3.

FOR DEFENDANTS:

Ex.B-1: Certified copy of Deposition of Dw.1 in O.S.No.743/1996 at page

No.3 marked through Pw.1..

Ex.B-2: Certified copy of Deposition of Dw.1 in O.S.No.743/1996 at page

No.2 marked through Pw.1.. .

Ex.B-3: Certified copy of Deposition of Dw.1 in O.S.No.743/1996 at page

No.1 marked through Pw.1.. .

Ex.B-4: Certified copy of Deposition of Dw.1 in O.S.No.743/1996 at page

No.2 marked through Pw.1.. .

Ex.B-5: Certified copy of Deposition of Dw.1 in O.S.No.743/1996 at page

No.2 marked through Pw.1.. .

O.S.No. 254/2007

13 dt. 19-6-2012 Ex.B-6: Certified copy of Deposition of of Dw.3 in O.S.No.743/1996 page

No.4 marked through Pw.1.. .

Ex.B-7: Certified copy of Judgment in O.S.No.743/1996 on the file of this

Court dated 16-1-2001.

ExB-8: Certified copy of Decree in O.S.No.743/1996 on the file of this

Court dated 19-2-1997.

Ex.B-9: Certfied copy of Registered Agreement of sale dated 15-9-1993 executed by Boddu Ramanamma and her son in favour of Velupula

Kondaiah.

Ex.B-10: Certified copy ofRegistered General Power of Attorney dated 5- 2-1994 executed by Boddu Rmanamma and her sons infavour of Velupula

Krishnaveni. .

Ex.B-11: Certified copy of Registered sale deed datated 31-5-1996 executed by Velupula Krishnaveni in favour of Velupula Kondaiah.

Ex.B-12: Certified copy of Adangal Pahani stand in the name of Boddu

Rosaiah in S.No.98/16 in an extent of Ac.0-24 cents.

Ex.B-13: Certified copy of Judgment in A.S.No.26/2001 dated 29-1-2007 on the file of Hon'ble IV Additional District Judge, Nellore.

I AJCJ,

SPSR NLR.

1 O.S.No. 158/2011

Dt. 1-5-2012

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE

S.P.S.R. NELLORE.

Tuesday, the First(1 st ) day of May , 2012.

PRESENT: SRI M. SATISH KUMAR, B.A., LL.B.

I Additional Junior Civil Judge,

S.P.S.R. Nellore.

O.S.NO. 158/2011

Palagiri Narayana Reddy. …… Plaintiff.

//.VS.//

Kota Chinna penchala Reddy. …. Defendant.

This Suit coming on 20-4-2012 before me for final disposal in the presence of Sri k. Penchalaiah, Advocate for the plaintiff and of

Sri P. Uma Maheswar, Advocate for Defendant, and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

Plaintiff filed the suit for recovery of the suit amount of

Rs.61,580/- against the defendant basing on the pronote.

2.The brief averments of the plaint is that on 20-3-2008 the defendant borrowed a sum of Rs.40,000/- from the plaintiff for his necessities and in consideration thereof, the defendant executed a demand pronote in favour of the plaintiff , agreeing to repay the same with interest 18% p.a., . Inspite of repeated demands made by the plaintiff, the defendant did not choose to repay any portion of the amount and postponed the same on some pretext or the other by stating that he will repay the said debt within the limitation of the pronote. The defendant is not an agriculturist, so he is not entitled to the benefits under Act IV of 1938 or Act 7 of 1977 or its extended Acts.

Hence the suit.

2 O.S.No. 158/2011

Dt. 1-5-2012

3. The defendant filed his written statement, and denied that he borrowed the amount from the plaintiff and also execution of the pronote in favour of the plaintiff. He further submits that one karipireddy Krishna Reddy is the agent of Max New York life Insurance.

In the month of March, 2008 , the said Karipireddy krishna Reddy approached the defendant and requested him to take a policy through the said krishna Reddy from max New York Life Insurance and the defendant informed him that he has no money by that time to take the policy and the said Krishna Reddy informed him that he will the money for the said policy and later repay the same to him expressing that by the time there is a target to him to get insure for the said Max New

York Life Insurance. He further submits that as the said Krishna Reddy requested the defendant and believing the words of the said krishna

Reddy, he accepted the request of the said krishna Reddy and took the policies bearing no.474883295 in the name of his daughter-in-law

Kota Jhansi and policy bearing No.484993298 in the name of his son

Kota Srinivasulu reddy. The said Krishna Reddy got obtained the promissory notes from the defendant in the name of the plaintiff for the amount paid to the said Max New York Life Insurance in the name of the son and daughter -in-law of defendant. He further submits that after harvesting of paddy in the month of May, 2008 , the defendant repaid the said amount to said Krishna Reddy which the said Krishna

Reddy paid to Max New York Life Insurance for the above said policies but the said Krishna Reddy informed the defendant that he will return the above said Promissory note to the defendant shortly by stating that the said promissory note kept in house. He further submits that as the said krishna Reddy did not return the above said promissory note, the 3 O.S.No. 158/2011

Dt. 1-5-2012

defendant and his son asked him to return the said promissory note and the said krishna Reddy replied them the said promissory note has been misplaced in his house and he will trace the same and return the same and believing the words of the said Krishna Reddy, the defendant and his son kept quite thinking that he will trace and return the same.

4.The defendant further submits that later the defendant and his son came to know that the above said Max New York

Life Insurance is not the Government institution and its policies terms are not beneficial rather than the terms of the policies of the Life

Insurance of Indian and then the defendant and his son asked the said

Krishna Reddy that why he suppressed the facts and at that juncture the disputes arose in between the said Krishna Reddy and this defendant, his on. The defendant did not pay the premiums for the said policies from the year 2009. He further submits that putting the above said disputes in the mind and thinking that the defendant did not pay the premiums for the said policies which causes loss to the said

Krishna Reddy for non-payment of commission to him, the aid krishna

Reddy got filed the said suit through the plaintiff by utilizing the said promissory note against the defendant in order to get the wrongful gain and harass the defendant even though he is not liable to pay any amount to the plaintiff under the said pronote. There are no attestors at the time of putting the thumb impression by the defendant on the alleged promissory note. The plaintiff never borrowed the amount from the plaintiff and he never executed the promissory note in favour of the plaintiff as alleged by the plaintiff. The plaintiff and attestors are the men of the said krishna Reddy and all of them colluded together and 4 O.S.No. 158/2011

Dt. 1-5-2012

got filed the suit with false allegations and prays to dismiss the suit with exemplary costs.

5. For the above pleadings, the following issues have been settled for trial:

1. Whether the Suit Pronote dated 20-3-2008 is true,

valid and binding on the defendant?

2. Whether the plaintiff entitled for suit amount as prayed for?

3. To what relief?

6.During the course of trial, On behalf of the plaintiff, Pw.1 was examined and got marked Ex.A-1. On behalf of the defendant,

Dw.1 was examined and no documents were marked.

7.Heard both sides.

8.ISSUE NOS.1 AND 2:

The contention of the plaintiff is that the defendant borrowed a sum of Rs.40,000/- from the plaintiff on 20-3-2008 and executed a promissory note , promissing to repay the same with interest at 18% p.a.,, After that the defendant filed to pay the same. Hence the suit.

9.The contention of the defendant is that he denied the borrowing amount and also execution of the promissory note. He contended that one Karipireddy Krishna Reddy is the agent of Max New

York Life Insurance. In the month of March, 2008, the said karipireddy

Krishna Reddy approached the defendant and requested him to take a policy through the said Krishna Reddy from Max New York Life

Insurance and the defendant informed him that has no money by that time to take the policy and the said Krishna Reddy informed him that he will pay the money for the said policy and later repay the same to him expressing that by the time, there is a target to him to get insure for the said Max New York Life Insurance. As the said Krishna Reddy 5 O.S.No. 158/2011

Dt. 1-5-2012

requested the defendant and believing the words of the said Krishna

Reddy, he accepted the request of the said krishna Reddy and took the policies in the name of his daughter-in-law Kota Jhansi and also in the name of his son Kota Srinivasulu Reddy. He further contended that the said Krishna Reddy got obtained the promissory notes from the defendant in the name of the plaintiff for the amount paid to the said

Max New York Life Insurance in the name of the son and daughter-in- law of defendant. He further contended that after harvesting of paddy in the month of May, 2008, he repaid the said amount to the said krishna Reddy, in which he paid to Max New York Life Insurance for the above said policies , but the said krishna Reddy informed the defendant that he will return the said promissory note to the defendant shortly by stating that the said promissory note kept in house . He further contended that as the said Krishna Reddy did not reutnr the said pronote, the defendant and his son asked him to return the said pronote and the said Krishna Reddy replied them that the said pronote has been misplaced in his house and he will return the same after traced out the same. Believing the words of the said Krishna Reddy, and the defendant and his son son kept quite. After that they came to know that the sad Max New York Life Insurance is not the Government institution, as such they questioned the Krishna Reddy that why suppressed the facts and at that juncture, the disputes arose in between the said Krishna Reddy and the defendant and his son. After that the defendant not paid the premiums for the policies for the year 2009. The above said disputes kept in mind a as the defendant not paid the premiums towards the said policies , thereby loss caused to the krishna Reddy for non-payment of commission to him. Then the 6 O.S.No. 158/2011

Dt. 1-5-2012

said Krishna Reddy got filed the said suit through the plaintiff for wrongful gain. He further contended that there are no attestors at the time of putting the thumb impression by the defendant on the alleged promissory note and prays to dismiss the suit.

10.On behalf of the plaintiff, the plaintiff himself examined as

Pw.1 and got marked Ex.A-1 Suit pronote dated 20-3-2008. He deposed as per the plaint averments. Pw.1 was cross-examined by the defendant's counsel. In the cross-examination, he deposed that

Karipireddy Krishna Reddy is his friend and he also admitted that the said Karipireddy Krishna Reddy is the agent of Max New York Life

Insurance. He also admitted that Ex.A-1 does not reveals that for what purpose the defendant borrowed the amount. At the time of the borrowing amount by the defendant, from him, Penchalaiah and

Venkata Subba Reddy were present. He denied the suggestion that the defendant not borrowed Rs.40,000/- from him and not executed Ex.A-1 in his favour. He further deposed that Ex.A-1 was scribed by

Karipireddy Reddy Krishna Reddy, and one Penchalaiah and Venkata

Subba reddy were the attestors of the pronote. He further deposed that after borrowing amount from him, the defendant paid the said amount towards the premiums of Max New York Life Insurance to

Krishna Reddy. Pw.1 also admitted that he has not issued any legal notice to the defendant prior to filing of the suit. He denied the suggestion that the said Krishna Reddy paid the premium of the policies as per the understanding between Krishna Reddy and defendant. Later the defendant paid the amount to the said krishna

Reddy and the aid krishna Reddy agreed to return the pronote, but postponed to return the pronote. He denied the suggestion that the 7 O.S.No. 158/2011

Dt. 1-5-2012

said Krishna Reddy obtained the suit pronote from the defendant in the name of the plaintiff. He denied the suggestion that the disputes arose between the defendant and krishna Reddy, as such by keeping the disputes in mind, the said krishna Reddy got filed the suit in the name of the plaintiff.

11.On behalf of the defendant, the defendant himself examined as Dw.1 and he deposed as per the written statement contents. Dw.1 was cross-examined by the plaintiff's counsel. In the cross-examination, he admitted that the thumb impression on Ex.A-1 is pertaining to him. He further deposed that he has not issued any legal notice to the Krishna Reddy to return Ex.A-1 as he discharged the amount to him. He further deposed that he do not know the plaintiff and he never seen the plaintiff. He further deposed that he has not obtained any receipt from the aid Krishna Reddy to show that he paid the amount due under Ex.A-1. He denied the suggestion that after execution of Ex.A-1 by him,, the attestors G. Penchala Reddy and

K.V.Reddy are signed on Ex.-A1 . He further deposed that he has no disputes with the Krishna Reddy who is the scribe of Ex.A-1. He also admitted that the plaintiff is not an insurance agent. He further deposed that the plaintiff not instigated him to pay the amount from

Max New York Life Insurance policy in the name of his daughter-in-law and his son. He denied the suggestion that he received the consideration of Ex.A-1 and he is deposing false.

12.In this case, the defendant admitted the execution of

Ex.A-1 but denied the consideration. The defendant further contended that one K. Krishna reddy scribed Ex.A-1 and requested him to pay the amount towards the Max New York Life Insurance . Then the defendant 8 O.S.No. 158/2011

Dt. 1-5-2012

informed that he is not having any money. Then the said Karipireddy

Krishna Reddy stated that he will arrange the amount. Accordingly he paid the insurance amount to Max New York Life Insurance in favour of his daughter-in-law and his son. At that time, the said Karipireddy krishna Reddy obtained the promissory notes in favour of the plaintiff, after that he failed to pay the LIC premiums regularly as Max New York

Life Insurance is a private company. Later after harvesting the crop, he paid the amount to the said K. Krishna Reddy. But the said krishna

Reddy not returned the suit pronote by stating that it was misplaced and postponed to return the pronote, as he not paid the regular instalments of premiums of Max New York Life Insurance . Then the said Krishna Reddy lost his commission. Thereby differences arose between the said Krishna Reddy and defendant. Keeping in mind, the said Krishna Reddy got filed the suit in the name of the plaintiff. But admittedly during the cross-examination of Dw.1, he deposed that he has no disputes with the Krishna Reddy. This admission shows that the entire plea of the defendant proved false that there is a disputes between Krishna Reddy and plaintiff, as such keeping in mind, the said krishna Reddy got filed the suit in the name of the plaintiff. Admittedly the defendant not examined the aid K. Krishna Reddy before the Court.

Even the defendant admitted that Ex.A-1 was scribed by the the said

Krishna Reddy. Admittedly the defendant not filed any documentary evidence before the court to show that he discharged the suit amount to the said Krishna Reddy. As per the admission made by Dw.1 as there is no disputes between him and K. Krishna Reddy. But the defendant not explained that why he not examined the said Krishna 9 O.S.No. 158/2011

Dt. 1-5-2012

Reddy before the court to prove that he has not received any consideration from the plaintiff under Ex.A-1.

13.According to Sec.118 of Negotiable Instruments Act “once execution is proved, there is a presumption that consideration is passed” When the defendant pleaded that the circumstances, in which he executed Ex.A-1. The burden lies on him to prove the same. As per the admission made by Dw.1 regarding execution of Ex.A-1, the plaintiff proved his burden to prove the execution of Ex.A-1. As per the presumption U/Sec.118 of Negotiable Instruments Act, once execution is proved, consideration also passed. The burden lies on the defendant to prove nonexistence of consideration. But the defendant except the self-serving testimony of Dw.1, there is no evidence before the court to show that the consideration was not passed to the defendant.

14.The plaintiff's counsel relied on a citation reported in 2007(1) ALD (NOC 3) – (MANAPRAGADA KRISHNA MURTHY //VS.// SAVNI

TRANSPORT PRIVATE LIMITED, MUMBAI AND ANOTHER). Wherein the

Hon'ble high Court of A.P. While discussing Negotiable Instruments Act,

Sec. 118(a) the relevant para as under: Further the Apex Court in the

Judgment Bharat Barrel and Drum Manufacturing Co. V. Amin Chand

Payrelal,AIR 1999 SC 1008 = 1999 (2) ALD (SCSN) 12, while considering the judgment of the Full Bench of this Court G.Vasu Vs. Syed Yaseen, 1987 (1) ALT 1 = AIR 1987 AP 139 (FB) , held that in case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence 10 O.S.No. 158/2011

Dt. 1-5-2012

of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence.

Something which is probable has to be brought on record forgetting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist” Hence in this case to disprove the presumption U/Sec.118(a) of Negotiable Instruments

Act , the defendant not placed any material before the court. Hence the plaintiff is entitled for the presumption U/Sec.118(a) of Negotible

Instruments Act. Therefore these Issues 1 and 2 are hereby answered in favour of the plaintiff and against the defendant.

15. ISSUE NO.3:

In the result, the suit is decreed for Rs. 61,580/- with costs and subsequent interest at 12% p.a., on principal amount of Rs.40,000/- from the date of the suit till the date of the decree and thereafter at 6% p.a., from the date of the decree till realisation.

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in the open Court, this the Ist day of May, 2012.

I Additional Junior Civil Judge, S.P.S.R. Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant:

Pw.1: Palagiri Narayana Reddy. Dw.1: Kotha Chinna Penchala Reddy.

11 O.S.No. 158/2011

Dt. 1-5-2012

DOCUMENTS MARKED: For Plaintiff:

Ex.A-1: Suit promissory note dated 20-3-2008 executed by the defendant in favour of the plaintiff.

For Defendant: - NIL -

I AJCJ,

S.P.S.R.Nlr.