Sri M. Siva Kiran

IN THE COURT OF PRL. JUNIOR CIVIL JUDGE-CUM-

J.F.C.MAGISTRATE::RAMACHANDRAPURAM

Present: Sri M.Siva Kiran, Prl. Junior Civil Judge, Ramachandrapuram Thursday, this the 9th day of July, 2020

O.S.No. 253/2017

Between:

Pedamallu Srinivasa Rao ... Plaintiff

And

1.Vasana Nageswara Rao 2.Chollangi Govindu

3.Medisetti Satyanarayana ... Defendants

(The defendants are numerous in number sued in representative capacity representing all the villagers of Chollangipeta)

This suit is coming on 19-02-2020 for final hearing in the presence of Sri A.Gani Raju and S.Hari Krishna, Advocates for the plaintiff and Sri RVG.Subbarao, Advocate for the 1st defendant and 2nd and 3rd defendants remained exparte and having stood over the matter for consideration till this day, this court has delivered the following:-

J U D G M E N T

The plaintiff filed the present suit against the defendants 1 to 3 in a representative capacity as the defendants are numerous in number seeking permanent injunctionrestraining them, their men, agents, privies, employees etc., from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property including digging of dimma and form it as bodi and sending used and excess water into the plaint schedule property and for costs and such other reliefs.

2. The case of the plaintiff in brief, is that, he is the absolute owner of the plaint schedule property which was acquired by him under regd. Settlement deed, dt.04-06-1996 executed by his maternal grandfather Balabhadruni

Seshagiri Rao by withholding life interest and by giving vested remainder rights and his grandfather died prior to 10 years back and then onwards, he is in possession and enjoyment of the plaint schedule property. It is further submitted that he obtained pattadar pass book in his name and also paying taxes to the revenue authorities. The plaintiff formed some part of land on west 2 as ‘Dimma’ and remaining land is under his cultivation and raised Swarna variety of paddy during 1st crop. The defendants 1 and 2 owned agricultural lands towards further west of the Chollangipeta village and the 3rd defendant is having house property in the village of Chollangipeta and some of the villagers are having landed properties nearby the lands of defendants 1 & 2 and the 3rd defendant and some others are having nearly 125 houses in Chollangipeta village. The 1st and 2nd defendants and other agricultural land holders used to release the used, excess and rain water from their lands into the banta bodi situated towards east of their lands and the 3rd defendant and villagers also are releasing their waste, used, sullage and garbage water illegally and unauthorisedly from their houses into the said bodhi situated towards north upto the western edge of the plaint schedule property and stagnating the water towards east of the plaint schedule property, for which, he is facing trouble and inconvenience. The plaintiff made representation to the government officials and the panchayat authorities formed pipeline from the houses of the 3rd defendant and other villagers towards their north and also dug a tank to stagnate the said waste and used water in it. It is further averred that the defendants had damaged the man holes and pipe lines and releasing the used, waste and sullage water into the banta bodi and the said waste water is stagnated towards west of the plaint schedule property. The plaintiff questioned the illegal and unauthorized acts of the defendants, but the defendants who are numerous in number gave arrogant reply and proclaiming that they are going to remove the dimma portion situated towards west in the plaint schedule property and the defendants have no right to do so. There is no such banta bodhi existing as per the revenue records as formed by the defendants and if the defendants removed the dimma and formed as bodhi and send their used, waste, excess and sullage water from their lands and 125 houses into the plaint schedule property, his land will become unfit for cultivation. There is no bodhi to discharge the excess water through the land of plaintiff nor such practice at any 3 point of time. The banta bodi is not at all bodi and it is only Banta. Since, the plaintiff is unable to control the illegal acts of the defendants, he filed the present suit. Hence the suit.

3. After receipt of summons, the 1st defendant made his appearance and filed written statement by denying the main and material allegations of the plaintiff. 2nd and 3rd defendants remained exparte. Inspite of issuing paper publication in Eanadu news paper and also by way of beat of drum i.e., Tom-

Tom, no person who is interested in the subject matter has appeared before this court to contest the suit.

ii) The 1st defendant averred that the suit filed in representative capacity is not concerned with the immediate and adjacent owners of the plaint schedule property and consequently the suit is laid against unnecessary parties and thereby, the suit is not maintainable on the ground of misjoinder of parties. It is further submitted that the plaintiff just before filing of the suit wantonly formed an earthen platform in an extent of Ac.0.10cts approximately abutting the road leading to Chollangipeta road from Utrumilli road out of Ac.0.90cts of the plaint schedule property and obtained interim orders. The defendants 1 and 2 are having lands towards west of the Chollangipeta village which are beyond the houses constructed and abutting the road leading to Venturu village. It is admitted that the 3rd defendant is having house in the Chollangipeta village and it is not abutting the road leading to venture village and it is inside the village of

Chollangipeta. The 1st defendant denied the allegations of releasing of waste used water and rain water by the defendants 1 and 2 and other agricultural land holders from their lands into the puntha bodhi situated towards east of their lands and also from the houses including the 3rd defendant into the panta bodhi towards north upto the western edge of the plaint schedule property and stagnating water which causes inconvenience to the plaintiff.

iii) It is further submitted that the plaintiff suppressed the fact that the gram panchayat provided water pipe lines to discharge the water into the main 4 pipe line from the houses abutting the road leading to Venuturu village and that panchayat also connected the plastic pipe line into a sump constructed on the south west of the earthen platform erected by the plaintiff and the used water/sullage water is being received into the sump only. The panta bodhi which is abutting the northern boundary of the houses of the villagers of

Chollangipeta is being used only for the purpose of allowing the rain water to pass through to reach the lands situated towards further east of the plaintiff’s property and the lie of the bodhi is higher towards west and lower in level on the east.

iv) It is further submitted that due to erection of the earthen mound/platform by the defendants, there is every likelihood of water being stagnated in the panta bodhi due to the disallowing of water being stagnated at earthen platform which will result in spilling over the water into the land which is situated towards west of Chollangipeta village. It is further averred that the villagers of Chollangipeta including the defendants are advised to take separate proceedings in a representative capacity for removal of the earthen mound/platform so as to allow the water to pass through his land to reach the land of others situated on the east of the plaint schedule property. As there were paucity of rains in the year 2017, the defendants and other villagers of

Chollangipeta did not feel any inconvenience of water being stagnated into the panta bodhi to spill over into their lands. It is further averred that the plaintiff has erected the earthen platform for the purpose of obtaining interim orders and there is any amount of malafides on his part. There is no cause of action for the plaintiff to file the suit and the alleged cause of action is false. Hence, prayed to dismiss the suit with costs.

4. Basing on the rival contentions of the parties, this court framed the following issues for trial:

(i) Whether the plaintiff is entitled for permanent injunction as prayed for?

5

(ii) Whether the suit is bad for mis joinder of necessary parties?

(iii) To what relief?

5. To prove the case of plaintiff, he is examined as P.W.1 and got exhibited

Ex.A1 to A6 and also examined one Vanapalli Dora Babu as Pw.2. Ex.A1 is the

Registration extract of registered settlement deed in the name of plaintiff executed by B.Seshagiri Rao, dt.04.06.1996. Ex.A2 is the Notarized attested copy of the registered sale deed in the name of B.Seshagiri Rao executed by

Gandham Veeramma, dt.25-04-1983. Ex.A3 is the Notarized attested copy of the registered sale deed in the name of B.Satyavathi executed by Gandham

Veeramma, dt.25-04-1983. Ex.A4 is the Notarized attested copy of the pattadar pass book in the name of plaintiff. Ex.A5 are Two tax receipts. Ex.A6 is Six photographs along with CD.

ii) On the other hand, 1st defendant is examined as Dw.1 and two other witnesses by name Mattaparthi Venkata Rao and Chollangi Chinna Masenu were examined as DWs.2 and 3 and no documents were marked on their behalf.

6. Heard both sides. Perused the material available on record.

7. ISSUE No.1:

Since the present suit is filed for permanent injunction, the initial burden lies on the plaintiff to prove his case. It is well settled law that the plaintiff has to prove his case on his own strength and he cannot rely on the weaknesses of the defendant’s case.

7.2) To prove the case of plaintiff, he filed his chief examination affidavit as Pw.1 by reiterating the same averments of the plaint. Pw.1 has exhibited

Ex.A1 to A6. Though the defendant has denied the title of plaintiff over the plaint schedule property, it is proved from the testimony of Pw.1 coupled with

Ex.A1 to A3 that the plaint schedule property belongs to the plaintiff. Perusal of

Ex.A1 shows that it is a registration extract of registered settlement deed in favour of P.W.1 executed by one Balabhadruni Seshagiri Rao. Ex.A2 and A3 are the sale deeds in the name of Balabhadruni Seshagiri Rao and his wife 6

Balabhadruni Satyavathi which were executed by Gandham Veeramma. There is no dispute about Ex.A-2 & A-3. By virtue of Ex.A-1, the property was settled in favour of the plaintiff, after the demise of settlor as the settlor had kept enjoying rights during his lifetime. It is the testimony of P.W.1 after the death of settlor, he had been in the possession and enjoyment of the plaint schedule property. Though there is no mention about date of death of settlor in the plaint nor death certificate of settlor was filed by plaintiff, the testimony of P.W.1 that after demise of settlor, he obtained possession and enjoying the property was undisputed. Further, the name of the plaintiff is mutated in the revenue records.

P.W.1 filed Pattadar pass book issued by the revenue authorities which is marked as Ex.A-4 and it shows that he got Ac.0.90cts in S.No.74/1. P.W.1 is paying taxes to the plaint schedule property and in proof of the same, he exhibited two tax receipts as Ex.A5. The testimony of P.W.1 coupled with the documents exhibited clearly shows that the plaintiff is the owner of plaint schedule property and he is in possession and enjoyment of it and cultivating the same. Thus, the contention of the defendants that the plaintiff did not derive any title through the documents cannot be accepted. There is no rival claim over the plaint schedule property. Therefore, the contention of defendants questioning plaintiff's locus standi to file the present suit will not gain any advantage.

7.3) Pw.1 deposed that there is a road adjacent to his fields which are situated towards west and it leads from north to south and turn towards west.

To the west of road, Chollangipeta village is situated and there is a mound (dimma) intervening the road and his lands. P.W.1 deposed that there is a panta

Bodhi and village towards south of North West road. P.W.1 denied the suggestion that dimma was laid just prior to filing of the present suit. There is no dispute about existence of earthern mound i.e., “dimma” to the west of the plaintiff's property and it is laid by the plaintiff in Ac 0-10 cents of his property.

D.w.1 admitted that there is a dimma to the west of the plaintiff’s property 7 which is width of 15 feet. However, the controversy inbetween the parties is “when the said dimma was laid” i.e., whether it is prior to the filing of suit or after filing of the suit. P.W.1 deposed that there is no reference in the documents filed by him that there is a dimma on the eastern side of plaint schedule property. Thus, the dimma was not there at the time of execution of

Ex.A1. It is not the case of Plaintiff that dimma was existed by the time of execution of Ex.A-1. D.W.1 deposed that the dimma was laid after one month of filing of the suit. P.W.1 deposed that dimma on the western side of his land is laid prior to 10 years which was raised in Ac.0.10cts. Pw.2 deposed that the dimma was laid by the plaintiff several years back. The evidence of DW.2 shows that the plaintiff has erected the earthen mound in his land prior to two years.

DW.3 deposed that he do not remember when Pw.1 formed the earthen mound in his land. P.W.1 exhibited six photographs as Ex.A-6 and the photographs were taken prior to filing of the suit. Plaintiff filed Ex.A-6 photographs along with his plaint. In one of the photographs of Ex.A-6, the earthen mound was visible. In view of Ex.A-6 photograph, it can be held that the earthen mound is laid prior to filing of the suit. There is no evidence placed by the defendants to say that the

Dimma was laid after filing of the suit. Further, the plaintiff got appointed an

Advocate-commissioner to note down the physical features of the schedule property. The learned Advocate-commissioner filed his report and the contents of his report were undisputed by the defendants. It is evident from the report of advocate commissioner that the Plaintiff's dimma is in existence by the date of his visit, which is shown in red colour in his sketch. Thus, it is evident that the earthen mound (dimma) was in the land of plaintiff prior to filing of the suit and it falsifies the contention of defendants that it is laid after one month of filing of the suit. Therefore, it can be held that the earthern mound i.e., “dimma” was laid by plaintiff prior to filing of the suit.

7.4) It is an admitted fact that there is a road to the north of

Chollangipeta village which leads to Venturu village from Utrumilli village and 8 there is a banta in between the road and village. Though it is stated by DW.1 that banta is in between the road and village, however, he deposed that it is not a banta and it is a panta Bodhi, which is used for discharging of excess rain water. DWs.2 and 3 admitted that there is a banta in between the houses of

Chollangipeta and main road. The evidence of D.W.2 and D.W.3 is extracted hereunder. DW.2 deposed “there is a banta inbetween the main road and house of chollangipeta village and it is length of 200 to 300 meters till

Durgamma temple. DW.3 deposed that banta is in between the Chollangipeta and main road banta.

7.5) DW.1 deposed that banta used for discharging of excess rain water, however, D.W.1 admitted that nobody should flow their used water through the panta Bodhi. DW.3 deposed that banta is not used for flown of excess waste water. DW.2 deposed that previously the waste water will be flown into the banta and at present the waste water from the houses is flown through the pipe lines on southern side of the houses. Though D.W.1 deposed that he do not know whether the waste water was flown into the pantabodhi or not, however, it is evident from Ex.A-6 photographs that the waste water has been stagnating in the Banta Bodi. D.W.1 in his cross-examination admitted that “the bodhi is likewise as shown in Ex.A-6 photographs as on the date of filing of the suit”. The Ex.A-6 photographs and the photographs filed by the learned

Advocate commissioner clearly shows that the waste water has been released into the banta bodi and the water has been stagnated. If the plaintiff has not erected the dimma, the waste water will be flown into this fields which causes loss and his lands will be unfit for cultivation.

7.6) It is the testimony of P.W.1 that he gave complaint to the panchayat authorities about release of waste water into the pantabodhi and the same was admitted by D.W.1. D.W.1 deposed that the villagers of Chollangipeta are discharging their waste water into the panta bodhi, for which the panchayat officials had laid pipe line for flow of waste water by digging a pit to the east of 9 their village. D.W.1 deposed that the pipe lines are laid for not to flow of waste water into the panta bodi. It is also an admitted fact that the panchayat officials had placed a sump towards south of Banta Bodi and it is filled with waste used water which was released from the houses. D.W.2 and 3 admitted that the cement pipes had laid and the waste used water will be flown from the lands of the defendants through cement pipes towards its north and it is also evident from the Ex.A6 photographs that the said pipe lines are broken and damaged and the waste water is being over flowing from the pipe lines and the waste water is stagnated. The Ex.A-6 photographs and the photographs taken by the learned Advocate Commissioner has revealed the exact features at the schedule property. As seen from the Ex.A6 photographs, the waste water was flown into the panta bodi and the Bodhi was filled with waste water, which was admitted by D.W.1. If the waste water is not flown through the pipe line and if it flows through the bodhi, it will cause loss to the plaintiff. The waste water used from the houses shall not be discharged to the agricultural land and If the waste water is flown into the agricultural lands, the agricultural lands will be spoiled and damaged. The waste water is to be flown through the cement pipe lines towards its north and if the waste water flow into the banta, the agricultural lands of the plaintiff will be spoiled. It is stated by D.W.3 that the ryots of

Vutrumilli village are not accepting to send the waste water to its north. In view of the testimony of D.W.3, it is clear that the Villagers of Vutrimilli are not accepting to send the waste water to its north and sending the waste water through their eastern side. Even DW.2 deposed that he had seen the waste water flown prior to one year and the DW.1 also admitted that as on the date of suit, the bodhi is extended towards its further east to the plaintiff’s land and from there one fields to other fields. Thus, the material on record clearly shows that the waste water has been released into the banta and if the waste water is flown into the banta, it will cause loss to the plaintiff lands and the land will become unfit for cultivation.

10 7.7) The Learned Advocate commissioner had also observed that all the houses used to release the waste and sullage water to the cement drain and the said cement drains and discharging the said waste water into the panta Bodhi and the house of 3rd defendant and other house holders are directly releasing waste, used water from their houses into the banta bodhi and the said banta bodhi is stagnated with used and waste water and the said bodhi is with a width of 8 to 10 feet and waste water discharged from the houses is runs towards east up to western edge of the petitioners dimma portion situated in the plaint schedule property. The tank which was constructed by the panchayat officials is also filled up with used water. Photographs taken by the advocate commissioner and Ex.A6 photographs clearly shows that the waste water has been flown into the banta and not through the pipe lines and if the same is flown in excess, it will pass through the agricultural lands of plaintiff, which cause loss to the cultivation.

7.8) By considering the material on record, this court of considered view that the waste water has been flown into the banta in excess and it will pass through the agricultural lands of the plaintiff. In view of the above discussion and by considering the facts and circumstances of this case, this court is of considered view that the defendants and villagers of chollangipeta are to be prevented from releasing the used waste water from their houses into the banta

Bodhi and thereby, the plaintiff is entitled for permanent injunction.

Accordingly, this issue is answered in favour of the plaintiff.

8. Issue No.2:-

It is the contention of learned counsel for the defendant that the adjacent land owners are not shown as parties to the suit and defendants 1 to 3 are not concerned parties as their lands are not situated nearer to the plaint schedule property and thereby the suit is bad for mis joinder of parties. It is the contention of learned counsel for plaintiff that the defendants 1 and 2 are having their lands and 3rd defendant’s house is situated nearer to the plaint 11 schedule property and being the suit filed in a representative capacity, the suit is filed against defendants properly and no person who is interested in the subject matter had made his appearance and thereby the contention of defendants will not have any importance.

8.2) Or.1 R.9 of CPC speaks that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the court may in ever suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Perusal of Para No.5 of the written statement shows that the 1st defendant has admitted that D-1 and D-2 are having lands towards west of the Chollangipeta village which are beyond the houses constructed and abutting the road leading to Venuturu village and the 3rd defendant is having his house in Chollangipeta village. D.W.1 in his cross-examination denied of mentioning the same in his written statement. However, his testimony cannot gain any advantage in view of averring in the written statement that D-1 and

D-2 has got lands to the west of Chollangipeta village. It is also admitted fact that the house of 3rd defendant is situated nearer the plaint schedule property.

D.w.1 deposed that 2nd and 3rd defendant is having houses in Chollangipeta village. D.W.2 stated that the houses of Chollangipeta village are situated to the west of the plaint schedule property. It is evident from the material on record that the lands and houses of 3rd defendant along with other houses of village is situated near to the property. The testimony of P.W.1 that the waste water from the house of 3rd defendant and other houses are flown into the bodhi is not disputed. The 3rd defendant did not choose to make his appearance to contest the suit even though it is the contention of plaintiff that the house of 3rd defendant along with other houses are discharging waste water.

Or.1 R.8(3) of CPC shows that any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the court to be made a party to such suit. This court had issued notice to the

General public by making paper publication in Eanadu Daily News paper with 12 regard to any objection in the present dispute and also by way of beat of drum i.e., Tom-Tom in the Chollangipeta village. However, No person came forward to contest the suit. Even the villagers of Chollangipeta did not come forward to contest the suit nor do they seek for removal of the earthen platform of the plaintiff so as to allow the water to pass through over his land to reach the land of others situated on the east of the plaint schedule property. In view of above discussion, this court is of considered view that the contention of defendants that the suit is bad for mis joinder of parties will not gain any advantage.

Accordingly, this issue is answered against the defendants.

9. ISSUE No.3:

In view of answering issue No.1 in favour of the plaintiff and issue No.2 against the defendants, the plaintiff is entitled for the relief sought. However, in order not to strain relationship in between the parties, this court is not inclined to award any costs.

10. In the result, the suit is decreed without costs in favour of the plaintiff by granting permanent injunction restraining the defendants, their men, agents, privies etc., from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property including digging of dimma and form it as bodhi and sending used and excess water into the plaint schedule property.

Dictated to the stenographer, transcribed by her, corrected by me on my

laptop and pronounced by me in open court on the 9th day of July, 2020.

Sd/- M.Siva Kiran

PRL. JUNIOR CIVIL JUDGE-CUM-J.F.C.MAGISTRATE,

RAMACHANDRAPURAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:

P.W.1: Pedamallu Srinivasa Rao

P.W.2: Vanapalli Dora Babu 13

For Defendants:

D.W.1: Vasana Nageswara Rao

D.W.2: Mattaparthi Venkata Rao

D.W.3: Chollangi Chinna Masenu

EXHIBITS MARKED

For Plaintiff:

Ex.A1/Registration extract of registered settlement deed in the name of the plaintiff executed by B.Seshagiri Rao, dt.04.06.1996.

Ex.A2/Notarized attested copy of the registered sale deed in the name of

B.Seshagiri Rao executed by Gandham Veeramma, dt.25-04-1983.

Ex.A3/Notarized attested copy of the registered sale deed in the name of

B.Satyavathi executed by Gandham Veeramma, dt.25-04-1983.

Ex.A4/Notarized attested copy of the pattadar pass book in the name of the plaintiff.

Ex.A5/Two tax receipts.

Ex.A6/Six photographs along with CD.

For Defendants: Nil.

Sd/- M.Siva Kiran

P.J.C.J-CUM-J.F.C.M.

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IN THE COURT OF PRL. JUNIOR CIVIL JUDGE­CUM­

J.F.C.MAGISTRATE::RAMACHANDRAPURAM

Present: Sri M.Siva Kiran, PRL. JUNIOR CIVIL JUDGE,

RAMACHANDRAPURAM

Friday, this the 28th day of December, 2018

O.S.266/2017

Between:

Koppisetti Venkatarao ... Plaintiff

And

1. Koppisetti Satyanarayana

2. Koppisetti Srinivas ... Defendants

This suit is coming on 01.11.18 for final hearing in the presence of Sri K.Bharath Kumar, Advocate for the plaintiff and Sri S.Satyanarayana, Advocate for the defendants and having stood over the matter for consideration till this day, this court has delivered the following:­

J U D G M E N T

This is a suit filed by the plaintiff seeking permanent injunction in his favour by restraining the defendants, their men, agents and privies from interfering with the peaceful possession and enjoyment of the plaint schedule property.

2. The case of the plaintiff, in brief, is that the 1st defendant is his brother and the 2nd defendant is his brother’s son and he is the absolute owner of the plaint schedule property which was acquired by him under a registered partition deed dt.08.10.12 which was executed in between the plaintiff and the 1st defendant by settling their family properties. It is further submitted that as per the partition deed No.3597/2012, dt.08.10.2012, the ‘A’ schedule RCC terraced building property which is in an extent of 137.52 sq.yards along with vacant site therein was devolved upon the plaintiff and his family members and ever since he has been in peaceful possession and enjoyment of the plaint schedule property as per the terms and conditions stipulated in the partition deed, by paying house tax to Ramchandrapuram Municipality. The house tax 2 pertaining to the plaint schedule property and the registration extract of the partition deed is filed along with the plaint as original is kept with the 1st defendant.

(ii)It is further submitted that the ‘B’ schedule tiled house property of the partition deed was devolved upon the 1st defendant and his family members and after partition of the properties, the defendants removed the old tiled house and kept the same as vacant site. It is further submitted that the 1st defendant and his family members are residing in Jagannadhagiri Village from long back and on 30.08.17 the defendants along with some other people came to the plaint schedule property with a malafide intention to grab the property and tried to remove the fencing along with pial with a width of 2 ½ feet situated in front of the plaintiff’s house i.e., on the Eastern side of the plaint schedule property without having any manner of right and possession.

The plaintiff along with his family members and supporters resisted the illegal acts and questioned the defendants, but the defendants tried to continue their illegal acts and cause damage to the fencing and pial of the plaintiff on the Eastern side of the plaint schedule property. Thereby the plaintiff gave a report to the Police against the defendants and the

Police rushed to the plaint schedule property and stopped the illegal acts of the defendants and called both parties and made enquiry about the incident and perused the property documents and since the matter is civil in nature, they advised the plaintiff to approach the court. Hence, the suit.

3.After receipt of summons, the defendants made their appearance

before this court through their counsel and that the 2nd defendant filed

his written statement which was adopted by the 1st defendant. They denied all the main and material allegations mentioned in the plaint. It 3 is submitted by the defendants that the plaint plan filed by the plaintiff is not true and correct and the plaint plan is showing 2 ½ feet width of pial which fell to A share, is not correct. The 2 ½ feet width is ‘B’ share of the defendants’ family, but not ‘A’ share of the plaintiff. It is further submitted that the suit for permanent injunction is not maintainable without seeking declaration of rights over the 2 ½ feet width of pial and the plaintiff has failed to file the suit in the form of declaration suit. It is further submitted that the 1st defendant’s elder daughter Kurupudi

Jyothi executed a registered settlement deed vide Doc.No.4421/17, dt.31.08.17 settling the ‘B’ share of the partition deed in favour of

Medisetti Satyaveni, who is the younger daughter of the 1st defendant.

Eversince the execution of the settlement deed, Medisetti Satyaveni is in possession and enjoyment of ‘B’ share of the partition deed. They filed written statement plan and they showed the written statement plan property as ‘B’ share of the defendants’ family as in the partition deed.

Plaintiff came to know about the execution of the registered settlement deed in favour of Medisetti Satyaveni and the plaintiff wanted to occupy part of the Eastern side plaint schedule property which is shown as

CC1DD1 Yellow marked portion of the written statement plan.

(ii)It is further submitted that the defendants are residing in

Janannadhagiri Village and Medisetti Satyaveni is resident of Vemagiri

Village and taking advantage of the same, the plaintiff on15.09.17 illegally encroached the CC1DD1 Yellow marked portion of the written statement plan and constructed steps and also extended the sun shade of the building into CC1DD1 Yellow marked portion. Knowing the same, the defendants and Medisetti Satyaveni came to the plaint schedule property and placed the matter before the elders and on the advice of the elders, the plaintiff removed the steps partly, but the sun shade was not 4 removed. Plaintiff is continuously causing obstructions to the defendant and encroached CC1DD1 portion of the written statement plan property.

Plaintiff without having any right or interest, high­handedly and clandestinely occupied the same. Plaintiff is intentionally suppressing the true facts and filed this false suit with false and untenable allegations. Since Medisetti Satyaveni is the absolute owner of the

ABCDE marked portion of the written statement plan, she is necessary party to the suit and the suit is bad for non­joinder of the necessary party. It is further submitted that Medisetti Satyaveni filed a suit in

O.S.354/17 on the file of this Hon’ble Court and obtained injunction in

I.A.745/17 in O.S.354/17 on ABC1D1 marked portion of the written statement plan. The cause of action mentioned in the plaint is not true and correct and prayed this court to dismiss the suit with costs.

4. Basing on the rival contentions of the parties, this court framed the following issues for trial:

(1) Whether the plaintiff is in lawful possession of the suit

schedule property as on the date of filing of the suit and thereby entitled for permanent injunction as prayed for?

(2) Whether the suit is bad for non­joinder of necessary

party? (3) To what relief?

5.In order to prove the case of plaintiff, the plaintiff himself was examined as P.W.1 and got marked Exs.A.1 to A.4 and also examined two other witnesses by names K.Venkata Ramana and Guthula Paparao as P.Ws.2 and 3 respectively. Ex.A.1 is the Mee­Seva copy of registered partition deed, dt.08.10.12, Ex.A.2 is the bunch of tax receipts, Ex.A.3 is the four photographs along with C.D., and Ex.A.4 is the Encumbrance

Certificate obtained from S.R.O., Ramachandrapuram, dt.06.10.17. On the other hand, the 2nd defendant himself was examined as D.W.1 and marked Exs.B.1 to B.9 and also examined one third party witness by 5 name Medisetti Venkateswara Rao as D.W.2. Ex.B.1 is the notarized copy of registered gift settlement deed executed by the defendants in favour of Medisetti Satyaveni, Ex.B.2 is the Encumbrance Certificate obtained from S.R.O., Ramachandrapuram, dt.30.04.18, Ex.B.3 is the certified copy of commissioner warrant in I.A.746/17 in O.S.354/17 on the file of this court, Ex.B.4 is the certified copy of advocate commissioner’s report in I.A.746/17 in O.S.354/17 on the file of this court, Ex.B.5 is the certified copy of commissioner’s plan in I.A.746/17 in O.S.354/17 on the file of this court, Ex.B.6 is the certified copy of sketch of the Mandal Surveyor filed by the commissioner in I.A.746/17 in O.S.354/17 on the file of this court, Ex.B.7 is the certified copy of the work memo by the plaintiff’s counsel in I.A.746/17 in O.S.354/17 on the file of this court, Ex.B.8 is the certified copy of the work memo by the defendants’ counsel in I.A.746/17 in O.S.354/17 on the file of this court and Ex.B.9 is the 5 photographs along with C.D (Exs.B.3 to B.9 are marked subject to relevancy).

6.Heard. Perused the material available on record.

7.ISSUE No.1:

7.1) Since this is a suit for permanent injunction, the burden rests on the plaintiff to prove his possession as on the date of filing of the suit by adducing positive evidence and he cannot rely upon the weaknesses of the defendants’ case. It is also a settled law that a person who is in settled possession of the property cannot be evicted except, under due process of law. Thus, Possession is the sole criteria to decide the issue. Perusal of the material reveals that the plaintiff and the 1st defendant are own brothers and they had partitioned their properties vide Ex.A­1 partition deed dt.08.10.12 and ‘A’ share mentioned in Ex.A­1 fell to the share of plaintiff and ‘B’ share fell to 1st defendant.

6 7.2)There is no dispute with regard to the relationship averred in the plaint. Plaintiff and the 1st defendant are own brothers and the 2nd defendant is the son of the 1st defendant and it is also not in dispute that originally the property belongs to the mother of the plaintiff and 1st defendant and the 1st defendant filed a suit in O.S.42/07 on the file of

Hon’ble Senior Civil Judge’s Court, Ramachandrapuram and a

preliminary decree was passed and an advocate commissioner was appointed in that suit. However, the parties have given up the report of the learned Advocate­Commissioner in O.S.42/07 as they cannot divide their property from East to West or West to East and they placed the matter before the elders and according to the agreed terms, they executed a partition deed, dt.08.10.12 which was registered as partition deed No.3597/12 i.e., Ex.A.1. According to Ex.A.1 partition deed, the ‘A’ share in Ex.A.1 fell to the share of the plaintiff and ‘B’ share fell to the share of the 1st defendant. The dispute in betweeen the parties is with regard to 2 ½ feet width of pial which is on the eastern side of the plaintiff’s property and to the west of the defendants property. The dispute in between the parties is with regard to 2 ½ feet of pial which is to the East of the plaintiff’s house and to the west of the ‘B’ share.

7.3)To prove his case, P.W.1 filed his chief examination affidavit which is nothing but the replica of his plaint and got exhibited Ex.A.1 partition deed. Perusal of Ex.A.1 clearly shows that ‘A’ share fell to the share of the plaintiff which is an extent of 137.52 sq.yards along with the vacant site therein and ‘B’ share fell to the share of the 1st defendant which is an extent of 97.33 sq.yards. During cross examination of

P.W.1, he deposed that his building has doors on the Eastern and

Northern sides and the Eastern door is visible in one of the photographs of Ex.A.3.

7 7.4)When P.Ws.1 and 2 were questioned with regard to length of wall from East to West, they stated that they cannot say the length of the wall whether it is 30 feet or not. As per Ex.A.1 partition deed, the

Western side boundary to the ‘A’ share i.e., plaintiff’s property is drainage and the same was admitted by P.W.1 in his cross examination and he further stated that there are steps between his building and drain to go to upstair and after the steps, to the further West, the plaintiff has constructed a lavatory and bathroom. Thus, Ex.A.1 clearly shows that the plaintiff has got the property upto the drain to his Western side.

However, it is stated by P.W.1 that he had constructed the compound wall on his Western side.

7.5)Though P.W.1 stated that as per Ex.A.1 he has got property upto the drain, he stated that he has got property upto his compound wall and the same is referred in Ex.A.1. However, perusal of Ex.A.1 does not reveal that P.W.1 has got property upto the compound wall. In

Ex.A.1 the Western boundary is shown as drain. So, it can be held that the Western boundary to the plaintiff is the drain, but not compound wall as stated by him. However, the material discloses that P.W.1 has constructed a compound wall after the drain. It is also admitted by the parties that after measuring the property by both P.W.1 and D.1, they executed Ex.A.1. The terms of Ex.A.1 were reduced into writing as per the will and wish of the parties and the same was admitted by D.W.1 in his cross examination.

7.6)P.W.2 who is one of the attesters of Ex.A.1 had deposed that there is 2 ½ feet of pial of P.W.1 after his Eastern side wall and admitted that P.W.1 has constructed a compound wall after the bathrooms and there is 3 to 4 feet of site between the drain and the compound wall of

P.W.1. Thus, the testimony of P.W.2 also shows that though the Western 8 boundary of ‘A’ share is upto the drain, he constructed his compound wall after 3 to 4 feet to the drain.

7.7)P.W.3 was examined to show that the defendants have interfered with the property of the plaintiff and caused damage. He deposed in his cross examination that he does not know in whose share the staircase was fallen. He deposed that he is not a boundary owner to the property of the plaintiff, however his house is situated to the opposite after a site to the P.W.1’s house and road.

7.8)To prove the case of defendants, the 2nd defendant was examined himself as D.W.1 and got marked Exs.B.1 to B.9. During cross examination D.W.1 stated that they removed the tiled house prior to the partition. However, he again stated that the plaintiff has removed the same. He admitted that the contents of Ex.A.1 are true and correct and the property was partitioned as per the will and wish of his father.

He deposed that after partitioning their property, their share is vacant till filing of the suit. Thus, at the time of partition, the property which fell to the share of D.1 was vacant. When it is admitted by D.W.1 that the property which fell to their share is vacant by the time of execution of

Ex.A.1, they cannot claim that the pial also fell to their share. As seen from Ex.A.3 photographs, it reveals that the pial is attaching to the building of the plaintiff and it is part and parcel of the plaintiff's property. It is also visible in one of the Ex.A­3 photographs that the wall was removed and there are three pillars which were removed to some extent. If really the 1st defendant has got property upto the building of the plaintiff and the pial is included in his property, he would have removed the pial when he has removed his tiled house. No material was placed by the defendant nor shown any circumstances as to why he left only pial when he has removed wall and tiled house. Further, Ex.A.1 9 does not reflects that the boundary to either of the parties i.e., plaintiff and D.1 is the pial. The ‘A’ share of the plaintiff to his Eastern side is the property of D.1, and to D.1’s property, the Western boundary is the property of the plaintiff.

7.9)It is argued by the learned counsel for the defendants that the suit for simplicitor injunction is not maintainable as the plaintiff did not seek for any declaration though he is claiming right and title over the 2 ½ feet of pial. The daughter of D.1 and sister of D.W.1 has filed a suit in O.S.354/17 for declaration and recovery of possession of 2 ½ feet of pial. By instituting the said suit for declaration and possession of 2 ½ feet of pial, it is a categorical admission made by the defendants that the plaintiff is in possession of 2 ½ feet of pial.

7.10) The learned counsel for the defendants further argued that the present suit for simplicitor injunction is not maintainable as the defendants had denied the right and title of the plaintiff over 2 ½ feet of pial. The said contention is not tenable under law for the reason that as per the testimony of D.W.1 and Ex.B.1, they conveyed the property on 31.8.17 to M.Satyaveni who is the daughter of D.1 and sister of D.W.1.

Thus, D.1 and D.2 are not having any right or title over the property which fell to their share. When the defendants are not having any right and title as they conveyed the property to M.Satyaveni vide Ex.B.1, the contention of the learned counsel for the defendants that the suit for injunction without seeking declaration is not maintainable under law. It is M.Satyaveni who had got property vide Ex.B.1 to deny the right and title of the plaintiff. Further, M.Satyaveni filed a suit in O.S.354/17 for declaration and recovery of possession of 2 ½ feet of pial and it is not the case of the defendants that the said 2 ½ feet pial is in their possession.

If both parties had claimed that they are in possession of the property, 10 they have to seek relief of declaration. Such is not the case in the present suit. The defendants who are not having valid title and right over the property cannot deny the right and title of plaintiff. As such, the contention raised by the learned counsel for the defendants cannot gain any importance and is devoid of merits.

7.11) In the suit filed by M.Satyaveni, an advocate commissioner was appointed by this court and D.W.1 had exhibited Exs.B.3 to B.9 i.e., advocate commissioner’s report, warrant, plan, sketch of the mandal surveyor, work memos by both the counsels and 5 photographs filed in

O.S.354/17. Perusal of Exs.B.3 shows that the warrant was entrusted to

the advocate commissioner to note down the physical features of the schedule property, but not to demarcate the property. However, the learned advocate commissioner measured the property with the help of the Mandal Surveyor which act is not in accordance with Ex.B.3 warrant.

As such, the report of the learned advocate commissioner need not be considered in the present suit. Hence, Exs.B.3 to B.9 are of no use to the case of the defendants. Further, the suit filed by the daughter of 1st defendant and sister of 2nd defendant clearly shows that the plaintiff is in possession of the property. The plaintiff had proved that he is in possession of the 2 1/2 feet pial by virtue of Ex.A­1 and thereby the plaintiff is entitled for the relief sought. Upon considering the facts and circumstances of this case, this court is of the considered view that the plaintiff has established that he is in possession and enjoyment of 2 ½ feet of pial and thereby entitled for permanent injunction.

8.ISSUE No.2:

8.1)It is the case of the defendants that they executed a gift settlement deed in favour of M.Satyaveni, who is the daughter of D.1 and sister of D.2 vide Ex.B.1 gift settlement deed. The said document was 11 executed on 31.8.17. Thus, their contention is that without adding

M.Satyaveni the suit filed by the plaintiff is bad for non­joinder of necessary party. This is a suit for permanent injunction and it can be instituted against the persons who has interfered into the property of the plaintiff and they need not be necessarily the owners of property. It is submitted by the learned counsel for the plaintiff that they had instituted the suit against the right persons as there is no reference about Ex.B.1 in Ex.A.4 encumbrance certificate. To prove the same, P.W.1 exhibited the encumbrance certificate as Ex.A.4 which was obtained by them on 06.10.17.

8.2)The suit was instituted by the plaintiff on 31.10.17. Thus, prior to the filing of the suit, the plaintiff had obtained encumbrance certificate which shows that the property is in the name of D.1. Though

Ex.B.1 shoes that it was executed on 31.8.17 and it was registered, the same was not carried out in Ex.A.4. D.W.1 exhibited the encumbrance certificate as Ex.B.2. However, Ex.B.2 was obtained by them on 30.4.18.

It is not their case that, from the date of execution of Ex.B.1 in favour of the daughter of D.1 and his sister, the said transaction was reflected in the encumbrance certificate. If really the said transaction was reflected in the encumbrance certificate after execution of Ex.B.1, the same would have reflected in Ex.A.4. As such, the contention of the learned counsel that as they conveyed the property to daughter of D.1 and sister of D.2, the suit has to be filed against them, is not sustainable.

8.3)Since this is a suit for permanent injunction and the plaintiff being Domnus Litus, he can institute the suit against the persons whom he wants to claim the relief and who has interfered into his property. It is not the case of plaintiff that it is Medisetti Satyaveni who has interfered into his property. As such, the suit is rightly filed against the 12 defendants. Hence, Medisetti Satyaveni is not a necessary party to the suit.  Accordingly, this issue is answered against the defendant.

9.ISSUE No.3:

In view of answering issues no.1 and 2 in favour of the plaintiff, the plaintiff is entitled for the reliefs sought. Since the plaintiff and defendant are own brothers and in order not to strain their relationship further, this court is not inclined to award any costs.

10. In the result, the suit is decreed by granting permanent injunction in favour of the plaintiff by restraining the defendants 1 & 2 from interfering with the peaceful possession and enjoyment of the plaint schedule property. Both parties shall bear their own costs.

Dictated to the stenographer, transcribed by him, corrected by me

on my laptop and pronounced by me in open court on the 28th day of December, 2018.

PRL. JUNIOR CIVIL JUDGE­CUM­J.F.C.MAGISTRATE,

RAMACHANDRAPURAM.

(i) APPENDIX OF EVIDENCE

(ii) WITNESSES EXAMINED For Plaintiff: P.W.1: Koppisetti Venkatarao P.W.2: K.Venkata Ramana P.W.3: Guthula Paparao

For Defendants: D.W.1: Koppisetti Srinivas D.W.2: Medisetti Venkateswararao

(iii) EXHIBITS MARKED For Plaintiffs: Ex.A.1:Mee­Seva copy of registered partition deed, dt.08.10.12. Ex.A.2:Bunch of tax receipts. Ex.A.3:Four photographs along with C.D. Ex.A.4:EncumbranceCertificateobtainedfromS.R.O., Ramachandrapuram, dt.06.10.17.

For Defendants: Ex.B.1:Notarized copy of registered settlement deed executed by the defendants in favour of Medisetti Satyaveni. Ex.B.2:EncumbranceCertificateobtainedfromS.R.O., Ramachandrapuram, dt.30.04.18.

13

Ex.B.3:Certified copy of commissioner warrant in I.A.746/17 in

O.S.354/17 on the file of this court.

Ex.B.4:Certified copy of advocate commissioner’s report in I.A.746/17 in O.S.354/17 on the file of this court. Ex.B.5:Certified copy of commissioner’s plan in I.A.746/17 in

O.S.354/17 on the file of this court.

Ex.B.6:Certified copy of sketch of the Mandal Surveyor filed by the commissioner in I.A.746/17 in O.S.354/17 on the file of this court. Ex.B.7:Certified copy of the work memo by the plaintiff’s counsel in I.A.746/17 in O.S.354/17 on the file of this court. Ex.B.8:Certified copy of the work memo by the defendants’ counsel in I.A.746/17 in O.S.354/17 on the file of this court. Ex.B.9:Five photographs along with C.D. (Exs.B.1 to B.9 are marked subject to relevancy).

P.J.C.J­CUM­J.F.C.M. 

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL

JUDGE::RAMACHANDRAPURAM

Present: Sri M.Siva Kiran, PRL.JUNIOR CIVIL JUDGE Tuesday, this the 23rd day of June, 2020

O.S.No.35 OF 2019

Between: Mutyala Veera Venkata Raju … Plaintiff

And

1.Koppisetti Surya Kantham 2.Koppisetti Srinivasu 3.Koppiesetti Venkanna Babu … Defendants

The suit coming before me on 20-02-2020 for arguments in the presence of Sri RVG.Subbarao, Advocate for the Plaintiff and Sri B.Maheswararao, Advocate for the defendants and having been stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This is a suit filed by the plaintiff against the defendants 1 to 3 who are the legal heirs of ‘deceased borrower’ Koppisetti Gurumurthy for recovery of an amount of Rs.6,40,290/- on the strength of five promissory notes dt.16-10-2017 for an amount of Rs.1,00,000/- on each promissory note (totalling to Rs.5,00,000/-).

2. The brief averments of the plaint, is that, the deceased Koppisetti

Gurumurthy borrowed an amount of Rs.5,00,000/- from the plaintiff on 16-10-2017 for the purpose of family expenses and to discharge sundry debts and executed five demand promissory notes each for Rs.1,00,000/- on the same day in his favour at Chelluru village and agreed to repay the same with interest @ 21% p.a. During his life time, the deceased borrower did not discharge the amount due under the said pronotes. All the properties and assets of the Late Koppisetti Gurumurthy devolved upon the defendants 1 to 3, who are wife and sons. D1 is the wife, D2 and D3 are the sons of deceased borrower. The plaintiff also demanded the defendants 1 to 3 several times personally and through elders for payment of the said debt, but the defendants postponed the same on 2 some pretext or the other. The plaintiff got issued a registered legal notice dt.04-11-2018 to all the defendants demanding them to pay the amount due under the pronotes, though they received the said notice, they got returned the postal covers intentionally and did not pay the said debt nor issued any reply notice. The defendants 1 to 3 are only legal heirs to Late Koppisetti Gurumurthy and there are no other legal heirs.

The defendants are not agriculturists and the interest is claimed at contractual rate of 21% p.a., and the defendants are not entitled to the benefit of any debt relief laws. Hence, the suit.

3. After receipt of summons from this court, the 1st defendant who is the wife of deceased borrower made appearance through her counsel and filed her written statement, which was adopted by the 2nd & 3rd defendants. The defendants denied the material averments of the plaint in toto. It is submitted that the deceased Koppisetty Gurumurthy is having two sisters and they are also legal heirs of the deceased Koppisetti

Gurumurthy and thereby the suit is bad for non-joinder of parties and prayed to dismiss the suit. It is further submitted that the deceased

Koppisetti Gurumurthy never borrowed any amount from the plaintiff at any time and the plaintiff never demanded the Koppisetti Gurumurthy in the presence of any one of his family members and after his death also.

There is no necessity to borrow huge amount by Koppisetti Gurumurthy from any one or from the plaintiff. The plaintiff is a stranger to the defendants and prior to death of deceased Koppisetti Gurumurthy, the defendants never seen the plaintiff in the village and he is complete stranger to them and they failed to identify the plaintiff as mentioned in the cause title. The plaintiff did not any gave legal notice to the defendants for the alleged legal debt and the pronotes are not legally enforceable. The plaintiff do not know about the family members or legal heirs of the deceased Koppisetti Gurumurthy and whatever mentioned in 3 the cause title regarding the ages of defendants are not true and correct and the plaintiff did not come to the court with clean hands. The deceased Koppisetti Gurumurthy did not inform to them about the alleged debt during his life time. The Koppisetti Gurumurthy used to share his financial matters with the 1st defendant. The signature and thumb mark on the suit promissory notes do not belongs to the deceased

Koppisetti Gurumurthy and they are completely forged by the plaintiff with support of his henchmen and got filed this suit against the defendants intentionally to get wrongful gain and the defendants are challenging the same before expert and the suit is not maintainable under law. The present suit is not maintainable against the defendants without correct particulars. Since the suit is not filed against all the legal heirs, the suit is liable to be dismissed. There is no cause of action and the cause of action mentioned is not true and correct. Hence, prayed to dismiss the suit with exemplary costs.

4. Upon considering the pleadings of both parties, this court framed the following issues for trial.

(1) Whether the plaintiff lent an amount of Rs.5,00,000/- to the deceased borrower Koppisetti Gurumurthy during his life time on 16-10-2017 under five separate promissory notes?

(2) Whether the five promissory notes dt.16-10-2017 for Rs.1,00,000/- each are true, valid, supported by consideration and binding on the defendants 1 to 3 and whether they are liable to pay the amount?

(3) Whether the signature and thumb mark on suit promissory notes do not belongs to the deceased Koppisetti Gurumurthy and whether the five promissory notes are forged one?

(4) Whether the suit is bad for non joinder of necessary parties?

(5) Whether the plaintiff is entitled for suit claim as prayed for?

(6) To what relief?

5. In order to substantiate the case of plaintiff, the plaintiff examined himself as P.W.1 and got exhibited Ex.A.1 to A.9 and he also got 4 examined the 1st attester of Ex.A.1 pronote as P.W.2. On the other hand, the 3rd defendant examined himself as D.W.1, but no documents were exhibited on his behalf.

(ii) Ex.A1 is the promissory note executed by Koppisetti

Gurumurthy in favour of plaintiff, dt.16-10-2017. Ex.A2 is the promissory note executed by Koppisetti Gurumurthy in favour of plaintiff, dt.16-10- 2017. Ex.A3 is the promissory note executed by Koppisetti Gurumurthy in favour of plaintiff, dt.16-10-2017. Ex.A4 is the promissory note executed by Koppisetti Gurumurthy in favour of plaintiff, dt.16-10-2017.

Ex.A5 is the promissory note executed by Koppisetti Gurumurthy in favour of plaintiff, dt.16-10-2017. Ex.A6 is the office copy of Regd. Legal notice got issued to the defendants 1 to 3, dt.04-11-2018. Ex.A7 is the returned postal cover from the 1st defendant. Ex.A8 is the returned postal cover from the 2nd defendant. Ex.A9 is the returned postal cover from the 3rd defendant.

6. Heard both sides. Perused the material available on record.

7. ISSUE No.4:

Whether the suit is bad for non-joinder of necessary parties?

It is the contention of learned counsel for the defendants that the plaintiff did not file the suit against the daughters of deceased Koppisetti

Gurumurthy who are having interest in the assets of the deceased borrower and thereby the suit is bad for non-joinder of necessary parties.

On the other hand, the learned counsel for plaintiff argued that since the suit is filed against the legal heirs of Late Koppisetti Gurumurthy i.e., D1 who is wife and D2 and D3 are sons and they are representing the estate of deceased Koppisetti Gurumurthy and the interest of daughters of Late

Gurumurthy is also protected by the contesting defendants, the suit is not bad for non joinder of necessary parties.

5 7.2) Pw.1 in his cross examination admitted that he know that the deceased Koppisetti Gurumurthy has two daughters by name Vanumu

Rajeswari and Gubbala Surya Kumari and he did not file the suit against

Vanumu Rajeswari and Gubbala Surya Kumari. P.W.1 denied that the suit is not maintainable as all legal heirs were not added. Admittedly, the suit is not filed against the daughters of Koppisetti Gurumurthy and it is only filed against the wife and sons of Late Kopisetti Gurumurthy who are defendants 1 to 3. It is averred in the written statement that the plaintiff has not filed the suit against the sisters of Koppisetti Gurumurthy. No plea was taken in the written statement that the suit is not filed against the daughters of Late Koppisetti Gurumurthy. What was averred in the written statement is that the Late Koppisetti Gurumurthy has two sisters and there is no mention about daughters of Late Koppisetti Gurumurthy.

When there is no pleading in written statement about non-joinder of daughters of Kopisetti Gurumurthy, the contention advanced by learned counsel for defendants will not gain any importance. It is not the case of defendants at all that it is a typographical mistake due to wrong typing of word ‘sisters’ instead of ‘daughters’. In the present case, the estate of deceased Koppisetti Gurumurthy was being represented by the defendants 1 to 3 who are legal heirs and thereby it cannot be held that suit is bad for non-joinder of daughters of Kopisetti Gurumurthy. Under

Order I Rule 9 which speaks that “no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the court may in ever suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it”. ‘Proviso says that nothing in this rule shall apply to non-joinder of a necessary party’. Since the defendants 1 to 3 who are having interest in the property are on record and no plea was raised in written statement about non-joinder of daughters of Late Kopisetti Gurumurthy, the contention of the 6

learned counsel for defendants that the suit is bad for non-joinder

of necessary party cannot be accepted. Accordingly, this issue is answered against the defendants.

8. ISSUE Nos.1 to 3

Since Issue Nos.1 to 3 are interrelated and interdependent on each other, this court inclined to take all the issues together in order to avoid repetition of evidence.

8.2) It is the case of plaintiff that the deceased Koppisetti

Gurumurthyhad borrowed an amount of Rs.5,00,000/- on 16-10-2017 from him and executed five separate demand promissory notes i.e.,

Ex.A.1 to A.5 in his favour on the even date and later he demanded the defendants to repay the amount, but they failed to repay the amount and thereby he issued Ex.A6 legal notice which was returned by the defendants and failed to repay the amount nor gave any reply.

Per contra, it is the specific case of defendants that there is no necessity to the deceased Koppisetti Gurumurthy to borrow amount from any one and he never borrowed any amount from the plaintiff on the foot of the suit pronotes and the signature and thumb mark on the suit pronotes do not belongs to the deceased Koppisetti Gurumurthy and they are forged by the plaintiff. Thus, the defendants had taken the plea of forgery.

8.3) Since the defendants have taken the specific plea of 'forgery, by denying the execution of pronotes and passing of consideration under the pronotes, the burden lies on the plaintiff to prove the same. It is well settled law that the initial burden is always on the plaintiff to prove the execution of Ex.A.1 to A.5 promissory notes. Once the execution of Ex.A.1 to Ex.A.5 promissory notes are proved by the plaintiff, the presumption under Sec.118 (a) of Negotiable Instruments

Act comes into operation infavour of the plaintiff with regard to passing of 7 consideration and then the burden of proving no consideration would be shifted to the defendants and they have to prove the same. The defendants may also dislodge the statutory presumption and to dislodge the statutory presumption, the defendants need not always produce direct evidence by entering into the witness box and they can show by the circumstances or the preponderance of probabilities which are suffice for dislodging the legal presumption. Once the defendants are able to show the preponderance of probabilities to dislodge the legal presumption, the burden again shifts on the plaintiff to establish the passing of consideration.

8.4) To substantiate his case, the plaintiff filed his chief examination affidavit which is nothing but replica of his plaint averments and he deposed about borrowing of amount of Rs.5,00,000/- by the deceased Koppisetti Gurumurthy on 16-10-2017 from him and execution of Ex.A.1 to A.5 in his favour in the presence of P.W.2, another attestor and scribe at his house at Chelleru village. It is also evident that P.W.1 also got issued legal notice to the defendants 1 to 3 demanding to repay the amount due under Ex.A1 to A.5, office copy of legal notice is marked as Ex.A.6 and registered returned postal covers of D-1 to D-3 are marked as Ex.A7 to A.9. There is no cross-examination done to P.W.1 on Ex.A-6.

It is evident that the plaintiff got issued legal notice to the defendants 1 to 3. Even the defendants did not deny the address mentioned in Ex.A7 to A9 that the address to which they were sent do not belongs to them.

The address mentioned on Ex.A6 to A-9 and the summons sent is one and the same.

8.5) During cross examination of P.W.1, he deposed that he know the deceased Koppisetti Gurumurthy prior to 2 years of Ex.A1 to A.5 transactions, which was not denied by defendants’ counsel by putting any suggestion. It is elicited that Koppisetti Gurumurthy is not his relative nor 8 they did any business together. Merely because deceased is not relative to

P.W.1 nor they did business together will not be a ground to hold that the plaintiff and deceased borrower has no acquaintance at all. Pw.1 deposed that Koppisetti Gurumurthy did paddy business and the particulars of the family members were stated by Gurumurthy himself and he also made enquiry about the family members of Koppisetti Gurumurthy. Pw.1 testified that Koppisetti Gurumurthy had signed and also affixed his thumb mark on Ex.A1 to A.5 and the attestors and scribe were brought by the deceased Koppisetti Gurumurthy and they are residents of Chelluru and they are not relatives of Koppisetti Gurumurthy and the distance between Chelluru and Kapavaram village i.e., village of Koppisetti

Gurumurthy is about 15 kms. Pw.1 denied various suggestions that the signatures and thumb marks do not belongs to Koppisetti Gurumurthy and Koppisetti Gurumurthy never borrowed any amount from him muchless on Ex.A1 to A5 and he is not having any financial capacity to lend huge amount of Rs.5,00,000/- and they are forged by him for wrongful gain and defendants 1 to 3 are not liable to pay the amount.

8.6) When Pw.1 was questioned about his financial capacity, he deposed that he is doing cultivation at Chelluru and owns 10 acres of land. When P.W.1 was questioned with regard to 10 acres of land, he deposed that 10 acres of land was conveyed to his family members and at present he got Ac.070cts of land and his wife has Ac.1.70cts of land. The above part of testimony of P.W.1 was not denied. Pw.1 also deposed that he is having white ration card and his annual income mentioned in his ration card is Rs.13,000/-. It is elicited from P.W.1 that he did not state his annual income to the revenue authorities. Merely because, the plaintiff is holding white ration card and his annual income of Rs.13,000/- his financial capacity cannot be doubted in view of his earlier testimony that he owns 10 acres of land which was undisputed by the defendants. If the 9 material elicited in cross of P.W.1 is true, it clearly shows that the plaintiff and deceased Koppisetti Gurumurthy has got acquaintance with each other, which falsifies the version of defendants that plaintiff is a total stranger to them and no transaction has taken place in-between the plaintiff and deceased Gurumurthy. No ordinary prudent person will handover his property documents to any other person without borrowing amount or without proper reason. It is not the case of defendants that

Late Kopisetti Gurumurthy had handed over the original documents of their property to the plaintiff. There is no mention in written statement that the plaintiff has obtained property documents of Late Gurumurthy nor that Gurumurthy had handed his property documents to the plaintiff.

As such, the testimony of P.W.1 that Late Gurumurthy handed over the documents of his property cannot be considered. Except that Pw.1 is holding white ration card holder and getting annual income of Rs.13,000/- nothing was elicited to disprove the case of plaintiff. The persons will obtain white ration card for getting benefits under Government schemes.

No enmity was suggested to Pw.1 to create the suit pronotes and filing false cases against the deceased Gurumurthy or defendants.

8.7) To corroborate his testimony, the plaintiff examined P.W.2 who is 1st attestor of Ex.A1 to A.5 and he deposed about borrowing of amounts from the plaintiff by the deceased Koppisetti Gurumurthy and execution of Ex.A1 to A5 in favour of plaintiff at the house of plaintiff in his presence and also in the presence of other attestor and scribe. P.W.2 deposed that he knows the plaintiff as well as the Koppisetti Gurumurthy since 5 to 6 years and he deposed that the Koppisetti Gurumurthy signed on the pronotes in Telugu and also affixed his thumb marks. He deposed that he and other persons also signed with same pen used by him and deceased Koppisetti Gurumurthy also used the same pen. The learned counsel for the defendants argued that Ex.A1 to A5 are not signed with 10 the same pen and thereby the testimony of P.W.2 cannot be considered.

Perusal of Ex.A1 to A5 shows that the signature of Pw.2 is not signed with same pen signed by other attestor on the pronotes. However, the same will not be a ground to disbelieve the evidence of P.w.2 as P.W.2 is giving evidence after two years of the transaction date. The evidence of Pw.2 is corroborated with the evidence of Pw.1 with regard to borrowing of amount and execution of pronotes by deceased Koppisetti Gurumurthy.

The plaintiff could establish the execution of pronotes by Koppisetti

Gurumurthy by examining P.W.2. Nothing was elicited in cross- examination of the witnesses to discard the case of plaintiff. In view of the testimonies of Pw.1 and 2 coupled with Ex.A1 to A5, this court is of considered view that the deceased Koppisetti Gurumurthy had borrowed amounts and executed Ex.A1 to A.5 pronotes in favour of the plaintiff.

Thus, the plaintiff is entitled for the presumption under section 118(a) of

N.I.Act, 1881. Now, the burden lies on the defendants to prove that

Ex.A1 to A.5 are forged one and thumb marks and signatures do not belongs to the deceased Koppisetti Gurumurthy.

8.8) 3rd defendant filed his chief examination affidavit by reiterating the same averments of written statement. There is no reason assigned by D.W.1 for filing false case by plaintiff nor the defendants shown any circumstance which favours their defence. Since the testimony of D.W.1 is that the signature and thumb mark on Ex.A1 to A.5 do not belongs to the deceased Koppisetti Gurumurthy, the burden is on the defendants to prove the same. However, the defendants did not take any steps for sending the Ex.A1 to A.5 to the hand writing expert or finger print expert for comparison with the admitted signatures and thumb marks of deceased Kopisetti Gurumurthy on any documents or registers signed by him. When the defendants remained silent without taking steps to prove that the signature and thumb mark are forged one, this court has no 11 hesitation to say that the plea raised i.e., ‘forgery’ is not proved.

Further, no reason or explanation was offered by the defendants for not taking any steps and to remain silent. Since this court had opined that the execution of Ex.A-1 to A-5 was proved, the presumption has arisen with regard to passing of consideration as per S.118 (a) of N.I.Act, 1881.

Since the defendants failed to prove that the signatures and thumb marks on the suit pronotes do not belongs to the deceased Koppisetti

Gurumurthy and they are forged one, the contention raised by the defendants will not gain any advantage. The defendants failed to place any material or circumstance to rebut the presumption under section 118

(a) of N.I.Act, 1881 which is in favour of the plaintiff and to shift the onus on the plaintiff. The defendants failed to disprove the case of plaintiff by adducing any positive evidence.

8.9) In the light of above discussion, this court is of considered view that the deceased Koppisetti Gurumurthy had borrowed amount from the plaintiff and executed Ex.A-1 to A-5 in favour of the plaintiff and thereby this court holds that Ex.A-1 to A-5 are true, valid and supported by consideration and they are not forged one.Accordingly, these issues are answered in favour of the plaintiff and against the defendant.

9. ISSUE No.5:

As seen from the valuation of the suit, the plaintiff claimed interest @ 21% p.a., which was agreed in between the plaintiff and deceased

Koppisetti Gurumurthy as per Ex.A.1 to A.5. Since the deceased

Koppisetti Gurumurthy has borrowed amount from the plaintiff for his family expenses and to discharge sundry debts and not for agricultural purpose, the interest claimed by the plaintiff is not exorbitant or usurious.

In view of answering issue Nos.1 to 4 in favour of the plaintiff and against the defendants, the plaintiff is entitled for recovery of suit amount.

12

10. ISSUE No.6:

In the result, the suit is decreed with costs against the estate of the deceased Koppisetti Gurumurthy which is lying in the hands of the 1st to 3rd defendants for an amount of Rs.6,40,290/- (Rupees six lakh forty thousand two hundred and ninety only) together with interest at the rate of 6% p.a., from the date of suit till realization on the principal amounts of Rs.5,00,000/- (Rs.1,00,000/- + Rs.1,00,000/- + Rs.1,00,000/- +

Rs.1,00,000/- + Rs.1,00,000/-).

Dictated to the stenographer, transcribed by her, corrected by me

on my laptop and pronounced by me in open court on this the 23rd day of June, 2020.

Sd/- M.Siva Kiran

PRL. JUNIOR CIVIL JUDGE,

RAMACHANDRAPURAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS:

P.W.1 : M.Veera Venkata Raju D.W.1: K.Venkanna Babu

P.W.2 : B.Satyanarayana

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A1/1st promissory note executed by Koppisetti Gurumurthy in favour of plaintiff, dt.16-10-2017. Ex.A2/2nd promissory note executed by Koppisetti Gurumurthy in favour of plaintiff, dt.16-10-2017. Ex.A3/3rd promissory note executed by Koppisetti Gurumurthy in favour of plaintiff, dt.16-10-2017. Ex.A4/4th promissory note executed by Koppisetti Gurumurthy in favour of plaintiff, dt.16-10-2017. Ex.A5/5th promissory note executed by Koppisetti Gurumurthy in favour of plaintiff, dt.16-10-2017. Ex.A6/Regd. Legal notice got issued to the defendants 1 to 3, dt.04-11-2018. Ex.A7/Returned postal cover from the 1st defendant. Ex.A8/Returned postal cover from the 2nd defendant. Ex.A9/Returned postal cover from the 3rd defendant.

FOR DEFENDANTS: NIL.

Sd/- M.Siva Kiran

PRL. JUNIOR CIVIL JUDGE,

RAMACHANDRAPURAM.

IN THE COURT OF PRL. JUNIOR CIVIL JUDGE::RAMACHANDRAPURAM

Present: Sri M.Siva Kiran, PRL.JUNIOR CIVIL JUDGE

Friday, this day the 19th day of June, 2020

O.S.No.19 OF 2019

Between: Chintapalli Srinivasu … Plaintiff

And

Reddi Sai Babu … Defendant

The suit is coming before me on 06-02-2020 for final hearing in the presence of Sri G.Srinivas, Advocate for the Plaintiff and Sri TSSSNCh.Kumar, Advocate for the defendant and having been stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This is a suit filed by the plaintiff against the defendant for recovery of an amount of Rs.4,96,600/- on the strength of a promissory note dt.01-05-2016 alleged to have been executed by the defendant in favour of the plaintiff.

2. The case of the plaintiff in brief, is that, the defendant borrowed an amount of Rs.3,00,000/- from him on 01-05-2016 for the purpose of family expenses and sundry debts and agreed to repay the same with interest @ 24% p.a., and after receipt of consideration, the defendant executed a demand promissory note on the even date in favour of the plaintiff at Ramachandrapuram. Inspite of repeated oral demands, the defendant failed to repay the suit amount, as such the plaintiff got issued a legal notice to the defendant on 21-05-2018 and the defendant received the same as per settled postal ack., given by Postal Dept., dt.18-06-2018 and the defendant did not pay any amount nor gave any reply. Since the defendant is not an agriculturist, he is not entitled to the benefits of Debt

Relief Laws. Hence, the suit.

3. After receipt of summons from this court, the defendant made his appearance through his counsel and filed written statement denying all 2 the main and material allegations of the plaint. It is submitted by the defendant that the present suit was filed against him to get wrongful gain and suit pronote is forged, fabricated and created for the purpose of filing this case. It is further averred that the alleged signature and thumb mark on the suit pronote do not belongs to him and the attestors and scribe of the suit pronote are henchmen of the plaintiff. It is further averred that he never executed the suit pronote in favour of the plaintiff in the presence of attestors and scribe and they are strangers to him and there is no necessity to borrow amounts from the plaintiff.

ii) It is further averred that on enquiry, he came to know that the plaintiff is a planted person by one Gubbala Adinarayana of

Ramachandrapuram, as himself and Gubbala Adinarayana having some financial disputes in connection with the Vocational College runned by him. Himself, Gubbala Adinarayana and one Chintapalli Satyanarayana together invested amounts for purpose of running of Vocational College under name and style of Costal Vocation college which was obtained by way of lease from one Sayyad Reaz in the year 2013 and Gubbala

Adinarayana used to manage and participate actively in all concerned activities of the college including accounts and finance management and cash transaction with others till February, 2018. Thereafter there arose some financial disputes with Gubbala Adinarayana and he left the college without settling accounts to him and Chintapalli Satyanarayana. He and

Chintapalli Satyanarayana settled the financial deficits in their college on behalf of the said Adinarayana also and they both frequently approaching the Adinarayana and demanding him to hand over the books, for which he bore grudge and got foisted the present suit through the plaintiff to shout up the mouth of the defendant. No suit pronote transaction took place in between the plaintiff and defendant and he came to know that the plaintiff has no financial capacity to lend amounts to others.

3 iii) It is further averred that after receipt of legal notice, he approached concerned counsel through his counsel and enquired about the notice and came to know that Adinarayana is behind back this suit and he tried to settle the matter, but in vain. There is no creditor and debtor relationship in between the plaintiff and himself and there is no cause of action and alleged cause of action is false. No pronote transaction took place at Ramachandrapuram, as he is residing at

Kakinada, hence, the plaintiff has no right to file the suit before this

Court. Upon the above grounds, he prays to dismiss the suit.

4. Basing on the rival contentions of both parties, this court framed the following issues for trial.

(1) Whether the suit pronote dt.01-05-2016 is true, valid, supported by consideration of Rs.3,00,000/- and binding on the defendant?

(2) Whether the signature and thumb mark on the suit pronote do not belongs to the defendant and was it a forged and fabricated document?

(3) Whether the plaintiff is entitled for suit claim as prayed for?

(4) To what relief?

5. During trial, the plaintiff examined himself as P.W.1 and got exhibited Exs.A.1 to A.3 and also examined the 1st attestor and scribe of

Ex.A1 as Pws.2 and 3.

ii) On the other hand, the defendant himself examined as DW.1 and no documents were marked on his behalf.

iii) Ex.A.1 is the pronote, dt.01-05-2016, Ex.A.2 is the office copy of registered legal notice dt.21-05-2018 and Ex.A.3 is the postal acknowledgment of the defendant as per complaint settled reply issued by Post Master, Ramachandrapuram, dt.18-06-2018.

6. Heard. Perused the material available on record and the written arguments filed by both sides.

4

7. ISSUEs No.1 and 2:

Since Issue No.2 is interrelated and interdependent on Issue No.1, both the issues are takenup together for consideration inorder to avoid repetition of evidence.

7.1) It is the case of plaintiff that the defendant borrowed an amount of Rs.3,00,000/- on 01-05-2016 from him and after receipt of consideration, he executed Ex.A.1 promissory note in his favour in the presence of attesters and scribe and later the defendant failed to repay that amount, as such he got issued Ex.A.2 legal notice to the defendant, but the defendant did not pay any amount and thereby he filed the present suit.

Per contra, it is the specific case of defendant that Ex.A1 is created one and alleged signature and thumb mark do not belongs to him and the

Ex.A1 suit pronote is a forged and fabricated document in view of disputes between himself and one Gubbala Adinarayana. Thus, the defendant has taken both the pleas of ‘forgery’ and ‘fabrication’ which are inconsistent with each other. 'Forgery' means 'denial of signature apart from its execution', whereas 'fabrication' means 'admission of signature and denial of execution'. However, it is well settled law that the defendant can take any number of pleas though they are inconsistent with each other.

7.2) Inview of plea raised by the defendant i.e., forgery and fabrication, the initial burden rests on the plaintiff to prove the execution of promissory note in his favour. Once the execution of Ex.A.1 promissory note is proved by the plaintiff, the presumption under Sec.118(a) of

Negotiable Instruments Act comes into operation infavour of the plaintiff with regard to passing of consideration. But, the defendant may also dislodge the statutory presumption and to dislodge the legal presumption, the defendant need not always produce direct evidence by entering into 5 the witness box and he can show by the circumstances or the preponderance of probabilities which are suffice for dislodging the legal presumption. Once the defendant is able to show that preponderance of probabilities to dislodge the legal presumption, the burden again shifts on the plaintiff to establish the passing of consideration.

7.3) To substantiate his case, the plaintiff filed his chief examination affidavit by reiterating the same averments of the plaint.

The suit pronote is exhibited as Ex.A1. P.W.1 deposed about borrowing amount of Rs.3,00,000/- from him on 01-05-2016 and execution of Ex.A1 in his favour in the presence of both the attestors and scribe. It is the specific case of the defendant that the plaintiff is not known to him and he was planted by G.Adinarayana in view of disputes in between him and

Adinarayana.

7.4) When Pw.1 was questioned about the name of the person against whom he had filed the suit, Pw.1 deposed that he filed the suit against one 'Reddy Srinivas'. However, the name of the defendant is 'Reddy Sai Babu'. P.W.1 failed to state exactly the name of the defendant. In view of the above evidence, the learned counsel for defendant had argued that the plaintiff even do not know the name of the person to whom he lend amount, which clearly shows that P.W.1 is not the person who had lend amount and the suit pronote is a fabricated and forged one and thereby prays to dismiss the suit.

7.5) Per contra, the learned counsel for the plaintiff argued that except, the above discrepancy about the name of the defendant, there is no other contra evidence elicited to disprove the case of plaintiff. Pw.1 might have felt tension in the witness box and stated the name as

Srinivas and there is no further cross examination on the aspect whether the defendant is also called as Srinivas or not. In the absence of any further cross-examination nor denying that the defendant was never 6 called as Srinivas, the same cannot be a ground to disbelieve the case of plaintiff and thereby the contention of learned counsel for the defendant will not gain any advantage and prayed this court to decree the suit.

7.6) Perusal of deposition of P.W.1 shows that further cross- examination of P.W.1 was done by referring the name of defendant as

Srinivas. When Pw.1 was questioned with regard to his acquaintance with the defendant, he deposed that he got acquaintance with Srinivas, as he used to running a school and asked to join his children in that school and he run the school at Kakinada and he know the defendant since 2015 and he got good acquaintance with him. P.W.1 further deposed that the person to whom he lent amount resided at I.Polavaram village and he is a married person and his father name is Somanna. The testimony of P.W.1 with regard to the father's name of defendant, defendant's place of residence and running a vocational college at Kakinada was found correct.

P.W.1 deposed that he do not know other particulars of the defendant. As seen from the deposition of Pw.1, there is no further cross examination done to Pw.1, whether the defendant Reddy Sai Babu is also called as

Srinivas or not. Except the discrepancy with regard to the name of

D.W.1, no contra material was elicited in cross-examination to disprove the case of plaintiff. Further, no material was elicited in cross-examination of P.w.1 to prove any nexus in between the plaintiff and Gubbala

Adinarayana. Moreover, it is an admitted fact that prior to filing of the suit, Pw.1 got issued legal notice to the defendant vide Ex.A2 office copy of legal notice and though no postal receipt was filed, but as per Ex.A3, settled reply issued by the Post Master, Ramachandrapuram that the said legal notice was served on the defendant. Even in the cross examination of D.W.1, he admitted that he received legal notice and he did not give any reply. The receipt of legal notice was also admitted by the defendant in his written statement. If the version of the defendant is true and 7 correct that the plaintiff is a planted person by one Adinarayana, what made the defendant in not issuing any reply notice to Ex.A-2 legal notice was not known. Defendant ought to have given suitable reply to the

Ex.A-2 notice by denying the transaction with the plaintiff, as claimed in

Ex.A-2 legal notice. However, the defendant remained silent. Further, a meticulous scanning of deposition of Pw.1 do not show that any question was posed to Pw.1 about any nexus in between the plaintiff and

Adinarayana. No cross-examination was done to P.W1 whether he knows

Gubbala Adinarayana or not. No single question was posed to Pw.1 about said Adinarayana. Except the discrepancy with regard to the name of the defendant as deposed by P.W.1 as “Srinivas” though the name of D.W.1 is “Sai Babu”, nothing was elicited in the cross examination of Pw.1 to discard his evidence. Even on the date of cross examination of Pw.1, he was questioned whether the defendant was present in the court hall, for which, Pw.1 replied that the defendant was not present in the court hall.

P.W.1 was questioned about identity particulars of the defendant, he stated that the defendant is tall person, thin and blackish in colour. The said identity particulars were not denied by the defendant counsel. If the defendant is of view that he is unknown to P.W.1 and he cannot identify him, the best method of identification is to be done in the open court along with other persons, which is not done in this case.

7.7) Pw.2 who is 1st attestor of Ex.A-1 and Pw.3 who is scribe of

Ex.A1 has corroborated the testimony of Pw.1 in all material aspects.

Pw.2 and 3 clearly stated about borrowing of amount by the defendant from the plaintiff and execution of pronote in favour of P.W.1 in their presence. As per the testimony of P.W.2, he knows both the plaintiff and defendant since long time and he acted as attestor at the request of the defendant. Pw.2 deposed that the transaction has taken place in between 11-00 am and 12-00 noon. Pw.2 deposed that he do not know one 8

Gubbala Adinarayana. When P.W.2 was asked whether the defendant was present in the court hall at the time of his cross examination, he stated that defendant attended the court today and he identified the defendant.

Pw.2 denied the suggestion that the Gubbala Adinarayana has got filed the case through the plaintiff and he deposing his evidence after going through the Xerox copy of the pronote with regard to its date and other particulars and he do not know the defendant at all and he had identified him as Adinarayana is sitting by the side of the defendant.

7.8) It is not known whether the person who is sitting beside the defendant is Adinarayana as no request was made by the defendant's counsel to know about the name of the person sitting beside the said

Adinarayana. P.W.2 stated that he do not know the person who was sitting by the side of the defendant in the court hall. Nothing was elicited in the cross-examination of P.W.2 to doubt his veracity.

7.9) Pw.3 in her cross examination stated that that defendant requested her to prepare the pronote. She stated that the defendant used to come to the Sub register office. She also deposed about the presence of 5 persons at the time of transaction i.e., herself, two attestors, Saibaba and the person who gave amount were present at that time. She deposed that herself, two witnesses and defendant went to the house of the plaintiff. Whereas the testimony of Pw.2 shows that himself, 2nd attestor and defendant together went to the house of plaintiff. However, the said inconsistency whether P.W.3 also accompanied with them will not affect the case of plaintiff in toto. P.W.3 deposed that she do not remember whether any corrections are occurred in the pronote. P.W.3 deposed that she used to sign the debtor and the witnesses in the black ink and she filled the pronote in black ink. P.W.3 denied the suggestion that the signature on Ex.A1 pronote and her chief affidavit are not similar. P.W.3 was not confronted with her signature on Ex.A1.

9 7.10) Though Pw.1 was questioned with regard to his financial capacity, Pw.1 deposed that he is doing cultivation of 10 acres of land on lease and getting amount of Rs.25,000/- per acre per crop. Though, the plaintiff stated that he is doing cultivation on lease, there will not be any documents to prove the same. By considering the evidence of P.Ws.1 to 3, it shows that their testimonies are well corroborated with each other with regard to the transaction. Without posing any questions to Pw.1 about Adinarayana or the Adinarayana filing the false case against him, putting suggestions to Pw.2 and 3 about Adinarayana and about his acquaintance will not gain any advantage to the case of defendant. The defendant failed to establish any nexus in between the plaintiff and

Gubbala Adinarayana.

7.11) In view of the testimonies of Pw.1 to 3 coupled with Ex.A1 to 3, this court is of considered view that the defendant had borrowed amount and executed Ex.A1 pronote in favour of the plaintiff. Thus, the plaintiff is entitled for the presumption under section 118(a) of N.I.Act, 1881. Now, the burden lies on the defendant to prove his case and to rebut the above said presumption.

7.12) D.W.1 filed his chief examination affidavit by reiterating the same averments of his written statement and he admitted that he run

Vocational Junior college in the year 2013 at Kakinada. D.W.1 denied the signature on the vakalat filed by him and he also denied the signature on the pronote. D.W.1 admitted his signature on his written statement. He deposed that he can send the Ex.A1 for comparison to the Handwriting

Expert and Finger Print expert to show that the signature and thumb mark on Ex.A1 do not belongs to him. The defendant filed an application in I.A.No.679/2019 U/Sec.45 of Evidence Act to send Ex.A1 to the

Forensic Lab for comparison of the signature on it with his admitted signatures. However, this court has dismissed the said application on the 10 ground that the defendant had denied both the signature and thumb mark on Ex.A1, whereas he sought to send the Ex.A-1 for comparison of signature only. If really the defendant has not executed the Ex.A1 pronote and the signature and thumb mark on Ex.A1 do not belongs to him, he would have sought for sending the pronote for comparison of his thumb mark as it is an exact science and the comparison of thumb mark will be helpful to this court to arrive at a right conclusion and it will enable this court to know whether the defendant had executed the pronote or not.

The defendant has not asked to send the document to finger print expert and choose to send for comparison of signatures and thereby this court disallowed the application. If really, Ex.A1 was not executed by the defendant, he would have certainly taken steps to send the Ex.A1 for his admitted thumb marks. Even after dismissal of the said IA.679/19, the defendant did not take any steps to send the Ex.A1 to the finger print expert and remained silent. The conduct of the defendant in not issuing any reply notice after receipt of legal notice is also a lacunae to his case.

Thus, the non giving of reply notice and not taking any steps to send the suit Ex.A1 document to the expert for comparison of thumb mark is a strong circumstances which are infavour of the plaintiff and against him.

7.13) It is the testimony of D.W.1 that himself, Gubbala

Adinarayana and Ch.Satyanarayana did business and G.Adinarayana used to manage and participate actively in all concerned activities of the college including the accounts and finance management and cash transaction with others till February, 2018 and later he and Ch.

Satyanarayana settled the financial deficits in their college on behalf of

Adinarayana and they demanded the Adinarayana to settle the accounts for the debts obtained during his tenure and demanded him to hand over the books, as such he bore grudge about the same and foisted the present suit. If the said version of D.W.1 is correct, he would at least 11 chosen to examine the said Satyanarayana on his behalf to prove about any disputes inbetween them during course of running vocation college.

D.W.1 did not make any attempt to examine the said person i.e.,

Ch.Satyanarayana for the best reasons known to him. The defendant failed to establish that there are disputes inbetween himself and G.

Adinarayana. Thus, the defence raised by the defendant that the plaintiff is a planted person through Adinarayana nor there is a nexus in between the plaintiff and Adinarayana was not proved by him. Thus, the defence raised by the defendant is not true and it is unbelievable to say that the plaintiff is a planted person at the instance of Adinarayana. The defendant failed to prove his case and failed to disprove the case of plaintiff. Since the defendant failed to prove that the suit pronote is a forged or fabricated document, the contention raised by the defendant will not gain any advantage and the material placed by the defendant is insufficient to come to a conclusion that the presumption under section 118 (a) of

N.I.Act, 1881 is rebutted by him and thereby this court is of considered opinion that the defendant borrowed amount from the plaintiff and executed Ex.A1 in his favour and Ex.A-1 suit pronote is a true, valid, supported by consideration and binding on defendant and it is not a forged and fabricated one. Accordingly, these issues are answered in favour of the plaintiff.

8. ISSUE No.3:

As seen from the valuation of the suit, the rate of interest agreed in between the plaintiff and the defendant is 24% p.a. and defendant is a business man. Since the defendant has borrowed amount from the plaintiff for his family expenses and sundry debts and not for agricultural purpose, the interest claimed by the plaintiff is not exorbitant and usurious. In view of answering issue Nos.1 and 2 in favour of the plaintiff, the plaintiff is entitled for recovery of suit amount.

12

9. ISSUE No.4:

In the result, the suit is decreed with costs against the defendant for an amount of Rs.4,96,600/- (Rupees four lakh ninety six thousand and six hundred only) together with interest at the rate of 6% p.a., from the date of suit till realization on the principal amount of Rs.3,00,000/- (Rupees three lakh only).

Dictated to the stenographer, transcribed by her, corrected by me

on my laptop and pronounced by me in open court on this the 19th day of June, 2020.

Sd/- M.Siva Kiran

PRL. JUNIOR CIVIL JUDGE,

RAMACHANDRAPURAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:

P.W.1 : Chintapalli Srinivasu

P.W.2 : Pilli Prasad

P.W.3 : Tatavarthi Mahalakshmi

FOR DEFENDANT:

D.W.1: Reddi Saibabu

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A.1: Original promissory note dt.01-05-2016 executed by the defendant in favour of the plaintiff.

Ex.A.2: Office copy of registered legal notice dt.21-05-2018 got issued to the defendant by the plaintiff.

Ex.A.3: Postal acknowledgment of the defendant as per complaint settled reply issued by the Post Master, Ramachandrapuram, dt.18-06-2018

FOR DEFENDANT: NIL.

Sd/- M.Siva Kiran

P.J.C.J.

IN THE COURT OF PRL. JUNIOR CIVIL JUDGE-CUM-JUDICIAL FIRST CLASS

MAGISTRATE::RAMACHANDRAPURAM

Present: Sri M.Siva Kiran, PRL.JUNIOR CIVIL JUDGE-cum-JUDL. FIRST

CLASS MAGISTRATE

Monday, this the 22nd day of June, 2020

O.S.No.252 OF 2018

Between: Dwarampudi Veerraghava Reddy … Plaintiff

And

Laagu Rajasekhar … Defendant

The suit is coming before me on 26.02.2020 for final hearing in the presence of Sri P.S.Ravi Shankar, Advocate for the plaintiff and Sri B.Jawaharlal David and B.Kishore Babu David, Advocates for the defendant and having been stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This is a suit filed by the plaintiff against the defendant for recovery of an amount of Rs.4,64,600/- on the strength of a promissory note dt.21-08-2016 alleged to have been executed by the defendant in favour of the plaintiff for an amount of Rs.3,00,000/-.

2. The case of the plaintiff in brief, is that, the defendant borrowed an amount of Rs.3,00,000/- from him on 21-08-2016 for the purpose of his family expenses and to discharge sundry debts and agreed to repay the same with interest @ 24% p.a., and executed a demand promissory note after receipt of consideration in his favour. The defendant failed to repay either interest or the principal amount, inspite of repeated demands made by the plaintiff, as such he got issued a legal notice, dt.10-10-2018 and the defendant received the said legal notice and did not paid any amount to the plaintiff. The defendant is an employee, and thereby he is not entitled for the benefits of Debt Relief Laws. Hence, the suit.

3. After receipt of summons from this court, the defendant made his appearance through his counsel and filed written statement denying all the main and material allegations of the plaint. The defendant denied 2 the transaction. He submitted that he never borrowed any amount from the plaintiff nor executed the pronote in favour of plaintiff at any point of time. He has no necessity to borrow the amount from the plaintiff and the plaintiff got filed the present suit by fabricating the blank signed pronote of the defendant to get wrongful loss to the defendant and he do not know the attestors and scribe and there is no creditor and debtor relationship in between the plaintiff and himself and there is no legal enforceable debt.

ii) It is submitted that the defendant worked in Sub Treasury Office,

Vissannapeta as Senior Accountant in the year 2004 and his co-employee one N.S.V.Subrahmanyeswara Rao who is in dire need of money approached Dola Manohar of Visannapeta in the year 2004 and requested him to lend an amount of Rs.25,000/- and the said Dola Manohar demanded the said Subrahmanyeswara Rao to issue his blank signed pronote for collateral security and as per his demand, Subrahmanyeswara

Rao issued a blank signed pronote of him and also requested the defendant to stood as security for him and then he handed over a blank signed pronote to Manohar as collateral security for the debt borrowed by

Subrahmanyeswara rao and the said Manohar lent amount to subrahmanyeswara Rao and subsequently the said Subrahmanyeswara

Rao paid the interest from time to time to the said Dola Manohar and also repaid the entire amount to Manohar in the year 2005 in his presence.

On that NSV.Subrahmanyeswara Rao requested the said Dola Manohar to return his blank signed pronote, but Manohar did not return the same, representing that they were mixed up with other documents and will return the pronotes within a short span of time.

iii) It is further submitted that he got transferred from Visannapeta to Machilipatnam in the year 2007 and thereafter he transferred to

Gannavaram in the year 2008 and from there he transferred to 3

Vijayawada in the year 2016 and from 2018 onwards he is working on deputation at Jaggaiahpet as Sub Treasury Officer, which clearly shows that he is not working at Visannapeta on the date of alleged date of transaction and he is at Vijayawada. The defendant never reside in the address mentioned in the plaint and summons i.e., 1st Floor, Vallabhaneni

Apartments, Srinivasa Nagar, Vissannapeta village, but on the cover of registered post the plaintiff mentioned the address of the defendant i.e.,

Attender (Junior Assistant), District Treasury Office, Near Collector

Compound, Machilipatnam, but he is not working in the said office and the postal personnel served the summons to the present address of the defendant i.e., Treasury office, Jaggaiapeta, Krishna District which speaks volumes of the fraud and fabrication made by the plaintiff. The plaintiff and Dola Manohar conspired and colluded together and got filed the present suit by fabricating his blank signed pronote.

iv) It is further submitted that the Revenue Stamp affixed on the suit pronote is a old stamp and it was cancelled in the year 2009 by the

Central Government and the suit is barred by limitation and to save limitation the plaintiff got filed by filling up the date column as it was executed on 21-08-2016, which is nothing but a falsehood. There is no cause of action, the alleged cause of action is not correct and invented and improvised for the maintainability of this case and this suit is misconceived, ill motivated which was intended to harass him. Hence, prayed to dismiss the suit with exemplary costs.

4. Basing on the rival contentions of both parties, this court framed the following issues for trial.

(1) Whether the suit pronote dt.21-08-2016 is true, valid,

supported by consideration of Rs.3,00,000/- and

binding on the defendant?

(2) Whether the suit is barred by limitation?

4

(3) Whether the plaintiff is entitled for suit claim as prayed

for?

(4) To what relief?

5. During trial, the plaintiff examined himself as P.W.1 and got exhibited Exs.A.1 to A.3. The plaintiff also examined the 1st attester of

Ex.A.1 by name Bikkina Sekhar as P.W.2. On the other hand, the defendant himself was examined as D.W.1 and exhibited Ex.B.1 and B2.

ii) Ex.A.1 is the pronote, dt.21-08-2016, Ex.A.2 is the office copy of legal notice, dt.10-10-2018, Ex.A.3 is the postal acknowledgement.

iii) Ex.B.1 is the served copy of the summon in this suit. Ex.B.2 is the registered postal cover of the summons in this suit.

6. Heard both sides. Perused the material available on record. Perused the written arguments filed by the defendant.

7. ISSUE No.2: Whether the suit is barred by limitation?

It is the contention of learned counsel for defendant that the revenue stamp affixed on Ex.A1 is an old stamp, which was cancelled in the year 2009 by the Central Government and thereby the suit is barred by limitation. The learned counsel for plaintiff argued that defendant failed to place any material to show that the revenue stamp on Ex.A1 is banned by the Government of India.

7.2) Perusal of Revenue stamp affixed on Ex.A1 pronote shows that it is a stamp of Rs.1/- of government of India. When Pw.1 was questioned, he deposed that he do not know whether the revenue stamp affixed is banned by the Government of India in the year 2008 itself.

Except putting suggestions to Pw.1 that the revenue stamp is not in use, the defendant did not choose to file any document to show that the revenue stamp affixed on Ex.A1 is banned by the Government of India in the year 2009. In the absence of exhibiting any documents or producing any gazette notification that the revenue stamp on Ex.A1 is banned, it 5 cannot be held that the revenue stamp was banned by Government of

India. As such, the contention of the learned counsel for the defendant will not gain any advantage.

7.3) As per Ex.A1, the suit pronote was executed on 21-08-2016 and the suit was filed on 06-12-2018, which is within 3 years from the date mentioned in the instrument and thereby the suit is within limitation.

The contention of the learned counsel for defendant that the suit is barred by limitation cannot be accepted. Accordingly, this issue is answered against the defendant.

8. ISSUE No.1:

It is the case of plaintiff that the defendant had borrowed an amount of Rs.3,00,000/- on 21-08-2016 from him and executed Ex.A.1 in his favour in the presence of attestors and scribe and subsequently, as the defendant failed to repay the said amount inspite of his oral demands, he got issued a legal notice vide Ex.A.2 and defendant received the same vide Ex.A.3 and no reply nor payment was made by the defendant.

Per contra, it is the specific case of defendant that he gave blank signed pronote as security on the request of co-employee

N.S.VSubrahmanyeswara Rao who borrowed amount from Manohar.

Though the entire amount was repaid by the NSV.Subrahmanyeswara Rao to Manohar, the said Manohar did not return the empty signed pronote to him and by misusing the said pronote got filed the suit to get wrongful loss to him. As seen from the defence pleaded by the defendant, it is clear that the defendant had admitted the signature on Ex.A1, but denied the execution of pronote in favour of plaintiff as pleaded in the plaint.

Thus, the defendant had raised the plea of ‘fabrication’.

8.2)Since the defendant has taken the specific plea of fabrication, the burden is on the plaintiff to prove execution of the promissory note in his favour. It is well settled law that the initial burden is always on the 6 plaintiff to prove the execution of Ex.A.1 promissory note. Once the execution of Ex.A.1 promissory note is proved by the plaintiff, the presumption under Sec.118 (a) of Negotiable Instruments Act comes into operation in favour of the plaintiff with regard to passing of consideration.

But, the defendant may also dislodge the statutory presumption and to dislodge the legal presumption, the defendant need not always produce direct evidence by entering into the witness box and he can show by the circumstances or the preponderance of probabilities which are suffice for dislodging the legal presumption. Once the defendant is able to show that preponderance of probabilities to dislodge the legal presumption the burden again shifts on the plaintiff to establish the passing of consideration.

8.3) To substantiate his case, the plaintiff filed his chief examination affidavit by reiterating the same averments of the plaint and he testified about borrowing amount by the defendant from him on 21- 08-2016 and execution of Ex.A.1 promissory note in his favour in the presence of attestors and scribe. He also filed office copy of the legal notice which is marked as Ex.A.2. It is the testimony of P.W.1 that the defendant received the legal notice issued by him and he exhibited the postal acknowledgment as Ex.A.3. To corroborate his testimony, he examined the 1st attestor of Ex.A1 as Pw.2 who corroborated the evidence of Pw.1 in all material aspects.

8.4) Firstly, the learned counsel for defendant argued that the plaintiff is a stranger to him and the attestors and scribe were not known to him and the suit pronote is a fabricated one. During cross examination of Pw.1, it was elicited that P.W.1 knows the defendant since 6 years and the defendant is resident of Vissannapeta village and the defendant came to see a site. P.W.1 deposed that the defendant asked him to lend money and he made enquiry by going to the office of the 7 defendant at Vissannapeta and his enquiry reveals that the defendant is working in the Treasury Office at Vissannapeta and residing there and defendant also showed his house.

8.5) The learned counsel for the defendant suggested to Pw.1 that the defendant did not reside at Vissannapeta and did not work at

Vissannapeta in the year 2016 and what he has deposed is false, which was denied by P.W.1. However, no material was exhibited by the defendant to show that he worked at some other place in the year 2016 and did not work in Vissanapeta. It is argued by the learned counsel for defendant that he had filed documents along with written arguments evidencing that the defendant is resident of Nuzvid and thereby the case of plaintiff that defendant is resident of Vissanapeta is incorrect which clearly proves his case that the plaintiff is total stranger to the defendant.

Perusal of material shows that the learned counsel for the defendant filed some documents along with written arguments i.e., service register of

D.W.1, copy of Aadhar card, copy of house hold ration card, copy of current bill, House tax receipt issued by municipality, which shows that

Dw.1 address is at Nuzvid and copy of entry in service certificate of Dw.1, shows that the defendant worked as Sub Treasury Officer from 22-06- 2016 to till date in Divisional Sub Treasury Office, Vijayawada(East).

However, the above documents were not exhibited by the learned counsel for defendant and they are filed along with written Arguments. Since the defendant did not get those documents marked on his behalf, there is no opportunity for the plaintiff counsel to cross examine on those documents. As such, the documents filed by the defendant along with his written arguments have no evidentiary value and they cannot be considered by this court.

8.6) With regard to the aspect of denomination of consideration,

Pw.1 deposed that the denomination of Ex.A1 is 500 rupee notes and five 8 persons were present at the time of transaction. Pw.2 also deposed that denomination of Ex.A1 consideration is 500 rupee notes i.e., old 500 rupee notes which were not in use now. P.W.2 stated that he acted as one of the attestor and he also identified his signature on Ex.A1. Pw.2 deposed that the defendant signed on Ex.A1 after taking the amount.

Pw.2 testified that the defendant borrowed amount of Rs.3,00,000/- on 28-01-2016 from the plaintiff at the house of plaintiff in between 5-00 to 6-00 pm. Merely because Pw.2 is a friend to Pw.1, his evidence cannot be discarded on that ground. The evidence of Pw.2 was unshaken during cross examination.

8.7) Pw.1 denied the suggestion that he stood as surety for

Rs.25,000/- amount borrowed by Dola Manohar from NSV.

Subrahmanyeswara Rao in the year 2004 and at that time the defendant stood as surety to the said debt and executed a blank signed pronote and the defendant never borrowed any amount from him and never executed the Ex.A1 in his favour and basing on the blank signed pronote executed by him in the year 2004, the present suit was filed against him by misusing the blank signed pronote. Pw.2 denied the suggestion that the defendant never borrowed any amount from the plaintiff and never executed the Ex.A1 in favour of Pw.1 in his presence and in the presence of other persons and no such transaction was taken place in his presence.

8.8) No worthwhile material was elicited during cross examination of Pw.1 and 2 to doubt their testimonies and it is evident from the testimony of Pw.1 coupled with Ex.A2 that he had issued legal notice to the defendant demanding him to pay the amount due under the Ex.A1 and in proof of the same, he filed postal acknowledgment which is marked as Ex.A3, though, it is wrongly typed as postal receipt in the deposition of

P.W.1. No reply was given by the defendant to Ex.A2 legal notice. There is no cross-examination done to P.W.1 on Ex.A-2 and A-3.

9 8.9) Defendant having admitted the signature on Ex.A-1 has failed to elicit any material to show that there is nexus in-between the plaintiff and Dola Manohar. The testimonies of Pws.1 and 2 were consistent and corroborative with each other and nothing was elicited from the cross examination of Pws.1 and 2 to disprove the case of the plaintiff and thereby the plaintiff is entitled for presumption under Sec.118(a) of

N.I.Act, 1881 and now the burden rests on the defendant to prove his defence and to rebut the presumption.

8.10) D.W.1 filed his chief examination affidavit by reiterating the same averments of his written statement and exhibited Ex.B1 and B2.

Ex.B1 is the served copy of summon in this suit and Ex.B2 is the registered Postal Cover of summons in this suit. It is the case of D.W.1 that he never resided in the year 2016 at Vissannapeta, thereby, the evidence of Pw.1 that he enquired by going through the office of the defendant at Vissannapeta and the defendant showed his house is absolutely false. Ex.B1 and B2 shows that they were sent to defendant and the address mentioned on it is Sub Divisional Office, Near Collector compound, Machilipatnam, Krishna District. Being the defendant a government employee, he might have transferred to Jagaiahpeta when the summons reached to the address and thereby Ex.B2 was served on the defendant at Jagaiahpeta and the plaintiff showed the office address of defendant at Machilipatnam will not be a ground to discard the case of the plaintiff, as no document was exhibited by the defendant showing that he did not work at Machilipatnam or Vissannapeta. It is the testimony of

DW.1 that he gave a blank signed pronote for security at the request of his co-employee NSV.Subrahmanyeswara Rao for the amount borrowed from one Dola Manohar in the year 2004 at Visannapeta and the said

Subrahmaneyswara Rao had repaid the entire amount to the Manohar in his presence and the said pronote was not returned by the said Manohar 10 on the ground that they were mixed up with other papers and stated that he will return those pronotes within a short period and surprisingly, filed this case through the plaintiff.

8.11) Pw.1 denied having acquaintance with Dola Manohar and

NSV.Subrahmanyeswara Rao. Thus, the onus is on the defendant to prove that he had given blank signed pronote as a security for the debt borrowed by Subrahmanyeswara Rao. If really the version of the defendant is true and correct, he would have examined the said NSV.

Subrahmanyeswara Rao to prove his defence. However, the defendant did not examine the said NSV.Subrahmanyeswara Rao nor taken any steps to examine him for the best reasons known to him. Thus, non examination of NSV.Subrahmanyeswara Rao is fatal to the case pleaded by the defendant. No explanation was offered by the defendant for not examining the said Subrahmanyeswara Rao. The defendant is an employee and he is not an illiterate person and thereby the version of

D.W.1 that he do not know that he could not sign on a blank pronote cannot be accepted. Dw.1 admitted that the signature shown to him on

Ex.A1 is belongs to him. Once the defendant had admitted that the signature on Ex.A1 is of his, it is the burden on the part of the defendant to prove that he gave blank signed pronote to the said Dola Manohar as security for the amount borrowed by his co-employee Subrahmanyeswara

Rao, however, the defendant failed to prove the same by any acceptable evidence. The defence raised by the defendant was not proved by him.

The defendant failed to prove his case and failed to rebut the presumption. In view of the facts and circumstances of the case, this court is of considered view that the plaintiff proved that the defendant borrowed amount from him and executed Ex.A-1 in his favour. As such, this court is of the opinion that the suit pronote is true, valid, supported 11 by consideration and binding on defendant. Accordingly, this issue is answered in favour of the plaintiff.

9. ISSUE No.3:

As seen from the valuation of the suit, the rate of interest agreed in between the plaintiff and the defendant is 24% p.a. and defendant is an employee. Since the defendant has borrowed amount from the plaintiff for his family expenses and to discharge sundry debts, the interest claimed by the plaintiff is not exorbitant and usurious. In view of answering Issue

No.1 in favour of the plaintiff, the plaintiff is entitled for recovery of suit amount.

10. ISSUE No.4:

In the result, the suit is decreed with costs against the defendant for an amount of Rs.4,64,600/- (Rupees four lakh sixty four thousand six hundred only) together with interest at the rate of 6% p.a., from the date of suit till realization on the principal amount of Rs.3,00,000/- (Rupees three lakh only).

Dictated to the stenographer, transcribed by her, corrected by me

on my laptop and pronounced by me in open court on this the 22nd day of June, 2020.

Sd/- M.Siva Kiran

PRL. JUNIOR CIVIL JUDGE,

RAMACHANDRAPURAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:

P.W.1: Dwarampudi Veera Raghava Reddy

P.W.2: Bikkina Sekhar

FOR DEFENDANT:

D.W.1: Lagu Raja Sekhar

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A.1: Original promissory note dt. 21-08-2016 executed by the defendant in favour of the plaintiff.

12

Ex.A.2: Office copy of legal notice, dt.10-10-2018 got issued by the plaintiff to the defendant.

Ex.A.3: Postal acknowledgment

FOR DEFENDANT:

Ex.B.1: Served copy of the summon in this suit

Ex.B.2: Registered postal cover of summons in this suit

Sd/- M.Siva Kiran

P.J.C.J.