Mohammed Rahamtulla

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:: IN THE COURT OF ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-

ADDITIONAL JUDICIAL MAGISTRATE OF THE I CLASS, AMALAPURAM

Present:- SRI MOHAMMED RAHAMTULLA

Civil Judge (Junior Division) Cum Judicial Magistrate of I Class, Mummidivaram.

(FAC) Additional Civil Judge (Junior Division) Cum Additional Judicial Magistrate of

I Class, Amalapuram.

Friday, this the Twenty First (21st Friday, this the Twenty First (21st) day of March, 2025 ) day of March, 2025

ORIGINAL SUIT No.92/2016 ORIGINAL SUIT No.92/2016

Between: Rokkala Subba Rao, S/o. Ramanna, Age.62 years, Cultivation, Ganganapalli, Kakinada Mandal. … PLAINTIFF

And

Undurti Krishna, S/o.Subba Rao, Age.40 years, Agriculture, Coolie, Jayanthi Nagar. Ambajipeta. … DEFENDANT

This suit has came before me for final hearing on 27.2.2025, in the presence of Sri. A. V. S. Prasad, Advocate for the plaintiff and of Sri. V. Nageswararao, Advocate for the defendant and upon hearing both sides, and on perusing the material placed on record, and the matter having stood over till this date for consideration, this Court delivered the following:

: J U D G M E N T :

1.This suit is filed by the plaintiff against the defendant for mandatory injunction directing the defendant to remove the illegal and unauthorized constructions made in EFGH of plaint plan property and deliver vacant possession of the same to the plaintiff and for consequential permanent injunction restraining the defendant his men and followers from interfering with the possession and enjoyment of ABCD of plaint plan and for costs.

THE BRIEF AVERMENTS OF THE PLAINT ARE : -

2. The plaintiff is the absolute owner of plaint schedule property which is an extent of Ac.0.56 cents in R.S.No.212/3 and an extent of Ac.0.58 cents in

R.S.No.212/4 of Jayanthi Nagar, Machavaram Village, Amabajipeta Mandal. It is 2 referred to as ABCD of plaint plan which equals to plaint schedule property.

Originally, the plaint schedule property belongs to the plaintiff's wife-Rokkala

Udayaratnam. The said Udayaratnam purchased the property under a registered sale deed, dt.29-03-2008 from Sunkara Ganga Bhavani and others. Since, the date of purchase she is in exclusive possession and enjoyment. ABCD of plaint plan is a

Coconut garden. There is a puntha on the Southern side of plaint schedule property. The Gramapanchayat of Machavaram Village laid a road on South to the said puntha. In fact, the defendant has nothing to do with the plaint schedule property and enjoyment of plaintiff. But, the defendant is claiming under pretext that

Government granted a patta for Ac.0.01 cent and under the guise of alleged claim defendant recently started construction of a pucca daba house in between plaint schedule property and the Panchayat road by encroaching part of plaint schedule property of a width of 3 feet and length of 10 feet which is shown as EFGH of plaint plan. He laid foundation upto basement level. The defendant has taken the advantage and encroached EFGH in view of the absence of plaintiff in the village and the property is being looked after by Gidla Ramakrishna. While so, the defendant by encroaching into some part of plaint schedule property and highhandedly raised foundation in EFGH of plaint plan upto basement level. When the plaintiff and his wife questioned the defendant, he abused them and on the other hand he proclaimed in the village that he would make further construction and complete the same on the mere allegation that plaint schedule as it is in his encroached portion. Then the plaintiff's wife Rokkala Udayaratnam filed the suit in

O.S.No.76/2009 against the defendant on the file of this Court for mandatory

injunction and for permanent injunction. In the said suit the defendant filed written statement and contested the same. While so, the plaintiff's wife R.Udayaratnam died on 22-11-2012 leaving behind the plaintiff husband as her only legal heir. The plaintiff due to lack of knowledge could not attend the Court and the suit is abated as per the orders, dt.30-10-2015.

2.1). It is further submitted that the defendant during the pendency of the above said suit stopped the constructions in the EFGH portion and also the 3 foundation raised in the site between Panchayat road and plaint schedule property.

The defendant recently after the dismissal of the suit as abated started proclaiming in the village that he would make constructions in the encroached portion of EFGH also. Since, last 3 days the defendant with a malafide intention with a view to further encroach into plaint schedule property highhandedly tried to make permanent constructions in EFGH of plaint plan and also by further encroaching into plaint schedule property. Plaintiff having no other go reported the matter to the

S.H.O., Ambajipeta Police station and also to Mandal Revenue Officer, Ambajipeta but no action had been taken. The plaintiff is not able to resist the illegal acts of the defendant. Defendant laid basement in between the plaint schedule property and

Panchayat road by encroaching into EFGH of plaint plan ABCD which is plaint schedule property. If the defendant was allowed to make further constructions in the site, he may plead equities and plaintiff cannot get possession of the property.

Hence, the suit.

3.The defendant filed written statement denying the plaint averments and further contended that the defendant was granted a patta to the site adjacent to the

Government Puntha which belongs to the Government and he has been in peaceful possession and enjoyment without any interruption since the date of granting of patta. The defendant constructed a house with the funds supplied by the

Government in the said site. The watchmen of the Coconut garden on the North of the house of the defendant Gidla Srinu, with whom the defendant got some ill- feelings and rivalries. Therefore, at the instance of Gidla Srinu the plaintiff without ascertaining the truth got filed the suit with frivolous allegations. The defendant did not encroach any part of the site of the plaintiff. It is false for the plaintiff to allege that the construction of the house of the defendant is at basement level. The entire structure is completed long ago and the plaintiff's wife filed a suit in O.S.No.76/2009 with similar allegations with similar relief and the defendant filed his written statement and the said suit was dismissed on 30-10-2015 as abated as the plaintiff in that suit did not report ready. The plaintiff having got knowledge about the dismissal instead of preferring the appeal or revision filed the present suit for the 4 same relief. Therefore, the main suit itself is not sustainable under Law and hit by the principles of Res-judicata and barred under Order-II, Rule-2 of Code of Civil

Procedure.

3.1). It is further submitted that the plaintiff misconceived the relief and there is no cause of action to the plaintiff to complain anything against the defendant and the alleged threat has already became in-fractious since the construction is over long back to the knowledge of the plaintiff. Therefore, the plaintiff is not entitled to mandatory injunction on the guise of the alleged interference or encroachment of the plaint schedule property belongs to the plaintiff.

3.2). It is further submitted that the defendant is a Coconut plucker and lives by honest means and he never indulged in any criminal cases or there any occasion arose to quarrel with anybody. It is the plaintiff who is politically influential and financially sound and is up to anything and therefore the defendant is threatening the plaintiff does not arise at all. The plaintiff suit is otherwise not maintainable since the Government is not made as party as the patta granted by them in which this defendant constructed his house.

3.3). It is further submitted that the defendant without admitting that he encroached any site of the plaintiff even if it is taken to be true for argument sake the suit for mandatory injunction for removal was long back barred by time.

Absolutely, there are no merits in the suit and the suit is liable to be dismissed in limine. The plaintiff in order to harass the defendant in one way or other filed the suit. There is no cause of action for the plaintiff to file the suit and the alleged cause of the action is not true and correct. The value of the suit is not correct and the

Court fee paid is also not correct. The suit is bad for non-joinder of necessary and proper parties to the suit. Hence, prayed to dismiss the suit.

4.Basing on the above pleadings, the following issues were settled for trial .

1. Whether plaintiff is entitled for relief of mandatory injunction as prayed for ?

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2. Whether the plaintiff is entitled for delivery of vacant possession as prayed for ?

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

4. To what relief ?

5.In support of the case of the plaintiff, he himself examined as PW.1 and she got examined one Gidla Srinivasarao as P.W.2 and got marked Ex.A.1 On the other hand, the defendant himself examined as DW.1. On behalf of the defendants DWs.2 and 3 were examined. No documents were marked on behalf of the defendant.

6.On the aforementioned evidential settings, it is vehemently canvased by the learned counsel for the plaintiff, Sri A.V.S.Prasad Garu that the plaintiff had got marketable title over the plaint schedule property succeeded from his wife as a sole legal representative. The defendant laid basement in between the plaint schedule property and Panchayat road by encroaching into EFGH portion of the plaint plan ABCD. Previously, his wife filed O.S.No.76/2009 against the defendant for mandatory injunction and permanent injunction. During the pendency of the said suit, his wife died intestate on 22.11.2012 leaving behind him as her only legal heir and they have no children. Due to lack of knowledge he could not approach his counsel within time to add him as legal representative of his wife-Udaya Ratnam.

Later, he filed I.A.No.832/2015 for condonation of delay. But, the said application was dismissed on merits and the suit was also dismissed as abated on 30.10.2015.

The defendant during the pendecny of the above suit, stopped the constructions in the EFGH portion and also the foundation raised in the said site. Since, last three days, the defendant with a view further encroach into the plaint schedule property, he is highhandedly trying to make permanent constructions in EFGH and also further encroaching into the plaint schedule property. The report of the Advocate

Commissioner clearly shows that the defendant encroached and constructed a house in the suit plan property in EFGH portion. The Advocate Commissioner gave measurements of the said encroachment in his report. DW.1 in his cross- 6 examination admitted that after dismissal of the suit in O.S.No.76/2009 he completed the construction on the basement. Therefore, he canvassed for the decree of the suit in favour of the plaintiff.

7.Severely fulminating the arguments, it is strongly canvased by the learned counsel for the defendant, Sri. V.Nageswarararo garu that it is the jurisprudential justification that person who approaches the Court for seeking the relief of mandatory injunction must come to the Court with clean hands and clean mind. In the matter at hand, the plaintiff came to the Court with soiled hands.

Except Ex.A.1 sale deed in the name of his wife, the plaintiff did not produce any link document of her vendor before this Court to show that her vendor has got right, title over the said property to transfer the same in her name. The cause of action for the suit arose on 29.3.2008. The earlier suit in O.S.No.76/2009 was dismissed as abated. There is no continuation of cause of action for the present suit as the plaintiff herein failed to restore the suit in O.S.No.76/2009 by preferring any

Revision against the dismissal order passed in delay condonation petition filed by the plaintiff in I.A.No.832/2015. The limitation for filing mandatory injunction is three years. Further, if any persons seeks mandatory injunction against a private property, he has to seek declaration. The Advocate Commissioner did not file any data along with plan to ascertain what the measurements are taken as per sale deed and field measurement books. He did not find any fixed Stones for taking measurements to arrive at the actual extent of the respective enjoyment of the properties and if he would have taken basing on the available Stones, there will not be any encroachment. There is no basis for the learned Advocate Commissioner to opine that there is an encroachment of 13 sq.yards. He also failed to mention the yielding Coconut trees in the site granted to the defendant in the patta and there is a Thatti fencing demarcating the same. Further, he vehemently argued that the plaintiff having got knowledge about the dismissal of the suit and interlocutory application in I.A.No.832/2015, failed to prefer appeal or revision and filed the present suit for the same relief which is hit by the principles of Res-judicata and barred under Order II Rule 2 of Code of Civil Procedure. It is well neigh settled that 7 the plaintiff has to swim or sink on the strength of his own case, and weakness of the defendant will not enhance the credibility of the case of the plaintiff. Therefore, he canvassed for the dismissal of the suit.

ISSUE Nos.1 and 2:

8.It is the case of the plaintiff is that his wife Rokkala Uday Ratnam purchased an extent of Ac.0.56 cents in R.S.No.212/3 and Ac.0.58 cents in

R.S.No.212/4 of Machavaram village of Ambajipeta Mandal under a registered sale deed. The defendant is claiming an extent of Ac.0.01 cent under a patta said to be granted by the Government. He started construction of a pucca daba house in between the plaint schedule property and Panchayat road by encroaching a part of the schedule property to a width of 3 feet and length of 10 feet shown as EFGH of plaint plan. His wife Uday Ratnam filed a suit in O.S.No.76/2009 on the file of this

Court against the defendant herein for mandatory injunction and permanent injunction. His wife died intestate on 22.11.2012 leaving behind her, himself alone as legal heir as they have got no children. Due to lack of knowledge, he could not approach his counsel within time and later he filed I.A.No.832/2015 to condone the delay of 935 days in filing the petition to set aside the abatement order but the said application was dismissed by this Court on 30.10.2015. During pendency of the above said suit, the defendant stopped the construction in the EFGH portion on the foundation raised by him. But recently, the defendant started permanent constructions in EFGH plaint plan portion to further encroach into the plaint schedule property.

9. On the other hand, the contention of the defendant is that he did not encroach any inch of site of the plaintiff. He constructed his building in the site granted by the Government to him and it is a road margin Poramboke site. There are two standing Coconut trees aged about 70 years old, demarcating the land of plaintiff. The site upto the said trees is in his occupation. Since, from the time of his father the Government recognized their long possession and enjoyment in favour of his father in the year 1975. After his death, the defendant and his brothers 8 continued in possession and enjoyment by construction of thatched houses and the

Tahsildar issued possession certificate to them in the year 2008. The plaintiff filed the present suit at the instigation of one Gidla Srinu and his brother Ramakrishna who have grudge against him. There is no possibility to protrude into plaintiff’s land as the two Coconut trees are situated on the North. His construction is inside the said trees and he did not encroach the site of the plaintiff.

10.In order to appreciate the validity and sustainability of the rival stances, now at this juncture, this Court is obliged to advert to the material emanated from the testimonies of P.Ws.1 and 2, DWs.1 to 3 and recitals of Ex.A1.

11.From the pleadings and evidence of both parties, it is not in dispute that the wife of PW.1 filed a suit in O.S.No.76/2009 against the defendant herein and the said suit was dismissed for default and the application filed by PW.1 herein in I.A.No.832/2015 to condone the delay was also dismissed by this Court. He did not prefer any revision against the dismissal order of I.A.No.832/2015.

12.Now, this Court setting forth the scope of controversy under different heads which are stated below.

Whether the suit is hit by Order II, Rule 2 of Code of Civil Procedure

as contended by the learned counsel for the defendant ?

13.In response to the above and for better assessment of the point, once again, this Court may revert to the averments made in para No.4 of the plaint. Para

No.4 goes on to specify that “the plaintiffs wife Rokkala Uday Ratnam a suit in

O.S.No.76/2009 against the defendant for mandatory injunction and

permanent injunction. In the said suit the defendant filed written statement

and contested the same. The plaintiff’s wife Udaya Ratnam died on 22.11.2022

leaving behind her, the plaintiff as her sole legal heir. He filed I.A.No.832/2015

to condone the delay of 935 days in filing the petition to set aside the

abetment and the said application was dismissed on merits on 30.10.2015.”

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“During his cross-examination, PW.1 categorically admitted that he did not

prefer any Revision on the dismissal order of I.A.No.832/2015.”

14.For the sake of understanding Section 11 of the Code of Civil

Procedure is reproduced here under:

Section 11 of the Code of Civil Procedure reads thus: "No Court shall

try any suit or issue in which the matter directly and substantially in issue

has been directly and substantially in issue in a former suit between the

same parties, or between parties under whom they or any of them claim,

litigating under the same title, in a Court competent to try such subsequent

suit or the suit in which such issue has been subsequently raised, and has

been heard and finally decided by such Court.

Explanation I. The expression “former suit” shall denote a suit which

has been decided prior to the suit in question whether or not it was instituted

prior thereto.

Explanation II. For the purposes of this section, the competence of a

Court shall be determined irrespective of any provisions as to a right of

appeal from the decision of such Court.

Explanation III. The matter above referred to must in the former suit

have been alleged by one party and either denied or admitted, expressly or

impliedly, by the other.

Explanation IV.-Any matter which might and ought to have been made

ground of defence or attack in such former suit shall be deemed to have been

a matter directly and substantially in issue in such suit.

Explanation V.-Any relief claimed in the plaint, which is not expressly

granted by the decree, shall, for the purposes of this section, be deemed to

have been refused.

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Explanation VI.-Where persons litigate bonafide in respect of a public

right or of a private right claimed in common for themselves and others, all

persons interested in such right shall, for the purposes of this section, be

deemed to claim under the persons so litigating.

Explanation VII. The provisions of this section shall apply to a

proceeding for the execution of a decree and references in this section to any

suit, issue or former suit shall be construed as references, respectively, to

proceeding for the execution of the decree, question arising in such

proceeding and a former proceeding for the execution of that decree.

Explanation VIII. An issue heard and finally decided by a Court of

limited jurisdiction, competent to decide such issue, shall operate as res-

judicata in as subsequent suit, notwithstanding that such Court of limited

jurisdiction was not competent to try such subsequent suit or the such issue

has been subsequently raised."

15.Here in present case on hand, as per the case of the plaintiff he filed

I.A.No.832/2015 and the said application was dismissed on merits but the plaintiff herein did not prefer any revision against the said order, ultimately the judgment passed in O.S.No.76/2009 by this Court abating the suit became final.

16.Now this Court feels that it is appropriate to reproduce Order XXII, Rule 9 of Code of Civil Procedure for the purpose of understanding:

Order XXII Rule 9 of Code of Civil Procedure: (1) where a suit abates or

is dismissed under this Order, no fresh suit shall be brought on the same

cause of action.

(2) The plaintiff or the person claiming to be the legal representative of

a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if

it is proved that he was prevented by any sufficient cause from continuing

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the suit, the court shall set aside the abatement or dismissal upon such

terms as to costs or otherwise as it thinks fit.

(3) The provisions of Section 5 of Limitation Act, 1877, shall apply to

application under sub Rule (2).

Explanation: Nothing in this rule shall be construed as barring, in any

later suit, a defence based on the facts which constituted the cause of action

in the suit which had abated or had been dismissed under this Order.

17.A plain reading of the above provision it clearly shows that where a suit abates or dismissed under this Order, no fresh suit shall be brought on the same cause of action. The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an Order to set aside the abatement or dismissal, and if it is proved that he is prevented by any sufficient cause from continuing the suit, the

Court shall set aside the abatement or dismissal upon such terms as to be passed or otherwise as it thinks fit.

18.Here in present case on hand, the wife of the plaintiff filed the suit in

O.S.No.76/2009. It shows that the cause of action for filing the said suit was started

when the defendant started alleged construction of his house by encroaching her site. Now again the plaintiff herein contending that since 3 days before filing the present suit, the defendant is trying to make permanent constructions in the EFGH plaint plan by further encroaching into the plaint schedule property. But, he did not specifically stated how much extent the defendant tried to encroach his site. He also did not specifically stated the date when the defendant started the alleged construction. But, actually the original cause of action had started when the defendant started construction of his house. If really, the defendant stopped the construction of his building after filing of the suit by the wife of PW.1 herein, he would not have filed the interlocutory application for setting aside of abatement order against the plaintiff in O.S.No.76/2009. Further, the plaintiff herein did not prefer any revision against the dismissal order in I.A.No.832/2015. So, it can be 12 safely conclude for the purpose of filing of the suit only the plaintiff created the fresh cause of action.

19.The learned counsel for the defendant further argued that if any party asks for mandatory injunction against other private property he has to seek declaration. The learned counsel for the plaintiff argued that since, the defendant did not deny the title of the plaintiff, there is no necessity to seek declaration of title.

20.Here in present case on hand, the contention of the plaintiff is that the defendant encroached EFGH portion of the plaint plan. During cross-examination of

PW.1, he categorically admitted that as on the date of dismissal of the suit, the defendant is in possession of the structure as it is. He does not know whether the

Government issued the patta to the encroachers of the puntha. The panchayat laid cement road on the South of the encroachers of the puntha. There are four other houses adjacent to his site. He does not know whether the Government granted any patta to the defendant’s father in the year 1975. He does not know whether the father of the defendant used to reside in the house. They purchased their property in the year 1988 or 1989. The occupiers in the puntha are having thatched houses by the time of purchase of his land. There were Coconut trees along the side of the puntha. The Coconut trees were not encroached by the defendants.

21.PW.2 in his cross-examination categorically admitted that he does not know the description of the plaint plan. About 40 to 50 years, the defendant and his father are residing in the adjacent of the plaint schedule property. He does not know whether the patta is issued to the defendant in the year 1975. He cannot say the width of the puntha. Except, his oral evidence there is no documentary evidence of proof whatever he gave the evidence. He gave his evidence in favour of the plaintiffs as they are his relatives. Further, the plaintiff except Ex.A1 registered sale deed, did not file any link document of his vendor to show that his vendor has got the right, title over the said property before selling the same to the plaintiff’s wife.

22.Eventhough the plaintiff cross examined DWs.1 to 3 at length nothing was elicited in his favour. During cross-examination of DW.1, he categorically stated 13 that he completed the construction on the basement after dismissal of the suit in

O.S.No.76/2009, for which there is no denial from the plaintiff. This evidence of

DW.1 clearly shows that the defendant completed the construction of his house on the basement after dismissal of the suit in O.S.No.76/2009 and as such the contention of the plaintiff that the cause of action arose about 3 days back of filing of the present suit cannot be believed.

23.The learned counsel for the defendant further argued that the limitation for filing the suit is hopelessly barred as the limitation for filing mandatory injunction is within 3 years. In support of his contention he relied on a decision of the

Honourable High Court of Madras in SA No.674/2015 Between R.Kumar

Vs.G.Jaganmoorthy, dt.25.10.2017, wherein it was held at Para No.13 by relying on the judgment in 2004 (4) CTS 231 Pankaja and Another Vs. Yellappa (D)

Lrs., and others;

Para No.14:Regarding the other contention raised by the learned

counsel appearing for the respondents that as per Section 22 of the

Limitation Act, if a person continuously breaches or torts, a fresh period of

limitation begins to run at every moment of time is concerned, I am of the

considered view that it is not a continuous breach, in the present case on

hand. What constitute continuous breach was considered by the Delhi High

Court in the judgment reported in AIR 1994 Delhi 161, Faqir Chand (through

L.Rs.)., v. Lila Ram (through L.Rs.). Paragraph 18 of the said judgment is

usefully extracted here under:

"18. In the plaint it was averred that this construction was made about

32 months prior to the filing of the suit. There was no specific denial of this

particular fact in the written statement but still the court thought it advisable

to examine the defendant-respondent in order to clarify his plea with regard

to he dale in the construction of the aforesaid tin-shed. At any rate, as the

plaintiff-appellant himself had admitted in his testimony about the existence

of this tin-shed for more than 3 years prior to filing of the suit the first

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appellate court was not wrong in taking notice of this admission of fact and

then drawing the legal inferences available flowing from such facts."

13. In the aforesaid case, this Court has held that as there was no continuous

breach, the appellant is not entitled to file a suit for mandatory injunction

under Article 113 of the Limitation Act. In the facts of the present case,

plaintiff issued legal notice on 10.3.2004 to the defendant and also lodged

police complaint to remove the encroachment made by the defendant.

Therefore, it is clear from the facts that the defendant has already

encroached and constructed a temporary structure in the suit property in the

year 2004 itself. In view of the above fact, there is no continuous breach or

threat to the plaintiff as averred in the plaint. Therefore, the appellant/plaintiff

has not proved his case that the suit filed by him for the relief of mandatory

injunction is within a period of three years under Article 113 of the Limitation

Act. Therefore, there is no error or illegality in the judgment and decree

passed by the appellate Court and the same is confirmed. The substantial

question of law raised in the Second appeal is answered accordingly.

24.In this case, the plaintiff filed the present suit after 4 years of death of his wife and one year after the dismissal of I.A.No.832/2015, dt.30.10.2015. As earlier discussed the defendant had already encroached and constructed a basement and after dismissal of suit in O.S.No.76/2009 he completed the construction of his house. Therefore, there is no continuous breach or threat to the plaintiff as averred in the plaint. Hence, the above authority is aptly applicable to the case on hand and the plaintiff filed the present suit within 3 years of the period of limitation u/Sec.113 of Limitation Act.

25.It is the fundamental tenet of Law of evidence that He who assertsthe burden is on him, he has to prove affirmatively and positively the existence or non- existence of fact-in-issue. The original onus is changeless and it does not shift or alter, which is known as legal burden or persuasive burden. While the evidential 15 burden alters basing on the plea propounded by the parties to the lis. Therefore, in the controversy at hand, in view of the above mentioned statutory prescription, the burden is on the plaintiff, he has to prove succinctly that there is an encroachment of EFGH portion shown in the plaint.

26.Therefore, in the wake of aforementioned reasons, issue Nos.1 and 2 are answered in favour of the defendant and against the plaintiff.

ISSUE No.3 :

27.In view of the above discussions, in the end, I hold that the plaintiff failed to prove his case as per the evidential standards, and as such he is not entitled for the permanent injunction as prayed. Thus the suit of the plaintiff deserves to be dismissed. Therefore, this issue is answered in favour of the defendant and against the plaintiff.

ISSUE No.4:

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

Typed to my dictation by the Stenographer Grade III, corrected and

pronounced by me in open Court on this the 21stday of March, 2025.

Sd/- Md.Rahamtulla

Civil Judge, (Junior Division)

-cum-Judicial Magistrate of I Class, Mummidivaram (FAC) Addl. Civil Judge, (Junior Division) Cum Addl. Judicial Magistrate of I Class

First Class,Amalapuram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:

P.W.1/14.03.2022 : Rokkala Subba Rao P.W.2/16.12.2022 : Gidla Srinivasa Rao

FOR DEFENDANT:

D.W.1/07.12.2023 : Undurti Krishna D.W.2/28.03.2024 : Sunkara Mohana Krishnarao D.W.3/26.04.2024 : Sunkara China Rajarao 16

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A1 : Certified copy of registered sale deed standing in the name of plaintiff’s wife for the plaint schedule property, dt.29.3.2008

FOR DEFENDANT:

Nil

Sd/- Md.Rahamtulla

C.J., (J.D.,) Cum J.M.F.C., MMD (FAC) A.C.J., (J.D.,) Cum A.J.M.F.C., AMP 17

Plaint presented on:06.05.2016 Plaint Registered on:20.6.2016

:: IN THE COURT OF ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-

ADDITIONAL JUDICIAL MAGISTRATE OF THE I CLASS, AMALAPURAM

Present:- SRI MOHAMMED RAHAMTULLA

Civil Judge (Junior Division) Cum Judicial Magistrate of I Class, Mummidivaram.

(FAC) Additional Civil Judge (Junior Division) Cum Additional Judicial Magistrate of

I Class, Amalapuram.

Friday, this the Twenty First (21st Friday, this the Twenty First (21st) day of March, 2025 ) day of March, 2025 ORIGINAL SUIT No.92/2016 ORIGINAL SUIT No.92/2016

Between: Rokkala Subba Rao, S/o. Ramanna, Age.62 years, Cultivation, Ganganapalli, Kakinada Mandal. … PLAINTIFF

And

Undurti Krishna, S/o.Subba Rao, Age.40 years, Agriculture, Coolie, Jayanthi Nagar. Ambajipeta. … DEFENDANT

This suit is filed by the plaintiff against the defendant for mandatory injunction directing the defendant to remove the illegal and unauthorized constructions made in EFGH of plaint plan property and deliver vacant possession of the same to the plaintiff and for consequential permanent injunction restraining the defendant his men and followers from interfering with the possession and enjoyment of ABCD of plaint plan and for costs. CAUSE OF ACTION : Cause of action for the suit arose on on 29-03-2008, when the plaintiff's wife purchased the plaint schedule property which is shown as ABCD and is in exclusive possession and enjoyment of the same and that the defendant encroached EFGH highhandedly, tried to make constructions plaintiff's wife Udayaratnam filed suit in

O.S.No.76/2009 on the file of this Hon’ble Court and during the pendency of the

said suit she died intestate on 21-11-2012 leaving behind the plaintiff as her only legal heir and the said suit was dismissed as abated on 30-10-2015 and since 3 days the defendant started proclaiming in the village that he will make permanent constructions of daba houses in the site in between the plaint schedule property and the Panchayat road by highhandedly encroaching into some part of plaint schedule property which is shown as EFGH and at Machavaram where the property is situated which is within the jurisdiction of this Honourable Court.

VALUATION :-

a) For mandatory injunction the suit is valued at Rs.10,000/-. Hence, a Court fee of Rs.786/- is paid u/Sec.26, Sch. I, Art. I (c) of A.P.C.F. and S.V. Act.

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b) For relief possession of EFGH property, valued at Rs. 8,00,000/- per acre as per S.R.O's certificate for the extent of 3 x 10 = 30. Sq.feets = 3.33 Sq.yds., is valued at Rs. 550/-

Hence, a Court fee of Rs.62/- is paid U/Sec.34, Schedule I, Art, I (c) of A.P.C.F. and S.V. Act.

Total value of the suit is Rs.10,550/- and the Court fee paid is Rs.848/-

This suit has came before me for final hearing on 27.2.2025, in the presence of Sri. A. V. S. Prasad, Advocate for the plaintiff and of Sri. V. Nageswararao, Advocate for the defendant and upon hearing both sides,and upon perusal of the entire material and on hearing the plaintiff’s counsel, this court Doth Order and Decree as follows:

:: DECREE ::

1.that the suit be and the same is hereby dismissed without costs;

(Copy of Plaint schedule and plan is hereby attached)

Given under my hand and the seal of this Court, this the 21 st of March, 2025.

Sd/- Md.Rahamtulla

Civil Judge, (Junior Division)

-cum-Judicial Magistrate of I Class, Mummidivaram (FAC) Addl. Civil Judge, (Junior Division) Cum Addl. Judicial Magistrate of I Class

First Class,Amalapuram.

PARTICULARS OF COSTS

For Plaintiff Rs. Ps. For Defendants

Vakalat fee 2-00

Plaint Fee848-00No Cost Memo Filed

Process Fee 200-00

Total (No Cost Memo 1,050-00 filed)

Sd/- Md.Rahamtulla

C.J., (J.D.,) Cum J.M.F.C., MMD (FAC) A.C.J., (J.D.,) Cum A.J.M.F.C., AMP Note : “The parties should apply as soon as possible for the return of all exhibits which they may wish to preserve, as the record will be liable to be destroyed after 3 years from this date.”

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:: IN THE COURT OF ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-

ADDITIONAL JUDICIAL MAGISTRATE OF THE I CLASS, AMALAPURAM

Present:- SRI MOHAMMED RAHAMTULLA

Civil Judge (Junior Division) Cum Judicial Magistrate of I Class, Mummidivaram.

(FAC) Additional Civil Judge (Junior Division) Cum Additional Judicial Magistrate of

I Class, Amalapuram.

Friday, this the Twenty First (21st Friday, this the Twenty First (21st) day of March, 2025 ) day of March, 2025

ORIGINAL SUIT No.92/2016 ORIGINAL SUIT No.92/2016

Between: Rokkala Subba Rao, S/o. Ramanna, Age.62 years, Cultivation, Ganganapalli, Kakinada Mandal. … PLAINTIFF

And

Undurti Krishna, S/o.Subba Rao, Age.40 years, Agriculture, Coolie, Jayanthi Nagar. Ambajipeta. … DEFENDANT

This suit has came before me for final hearing on 27.2.2025, in the presence of Sri. A. V. S. Prasad, Advocate for the plaintiff and of Sri. V. Nageswararao, Advocate for the defendant and upon hearing both sides, and on perusing the material placed on record, and the matter having stood over till this date for consideration, this Court delivered the following:

: J U D G M E N T :

1.This suit is filed by the plaintiff against the defendant for mandatory injunction directing the defendant to remove the illegal and unauthorized constructions made in EFGH of plaint plan property and deliver vacant possession of the same to the plaintiff and for consequential permanent injunction restraining the defendant his men and followers from interfering with the possession and enjoyment of ABCD of plaint plan and for costs.

THE BRIEF AVERMENTS OF THE PLAINT ARE : -

2. The plaintiff is the absolute owner of plaint schedule property which is an extent of Ac.0.56 cents in R.S.No.212/3 and an extent of Ac.0.58 cents in

R.S.No.212/4 of Jayanthi Nagar, Machavaram Village, Amabajipeta Mandal. It is 2 referred to as ABCD of plaint plan which equals to plaint schedule property.

Originally, the plaint schedule property belongs to the plaintiff's wife-Rokkala

Udayaratnam. The said Udayaratnam purchased the property under a registered sale deed, dt.29-03-2008 from Sunkara Ganga Bhavani and others. Since, the date of purchase she is in exclusive possession and enjoyment. ABCD of plaint plan is a

Coconut garden. There is a puntha on the Southern side of plaint schedule property. The Gramapanchayat of Machavaram Village laid a road on South to the said puntha. In fact, the defendant has nothing to do with the plaint schedule property and enjoyment of plaintiff. But, the defendant is claiming under pretext that

Government granted a patta for Ac.0.01 cent and under the guise of alleged claim defendant recently started construction of a pucca daba house in between plaint schedule property and the Panchayat road by encroaching part of plaint schedule property of a width of 3 feet and length of 10 feet which is shown as EFGH of plaint plan. He laid foundation upto basement level. The defendant has taken the advantage and encroached EFGH in view of the absence of plaintiff in the village and the property is being looked after by Gidla Ramakrishna. While so, the defendant by encroaching into some part of plaint schedule property and highhandedly raised foundation in EFGH of plaint plan upto basement level. When the plaintiff and his wife questioned the defendant, he abused them and on the other hand he proclaimed in the village that he would make further construction and complete the same on the mere allegation that plaint schedule as it is in his encroached portion. Then the plaintiff's wife Rokkala Udayaratnam filed the suit in

O.S.No.76/2009 against the defendant on the file of this Court for mandatory

injunction and for permanent injunction. In the said suit the defendant filed written statement and contested the same. While so, the plaintiff's wife R.Udayaratnam died on 22-11-2012 leaving behind the plaintiff husband as her only legal heir. The plaintiff due to lack of knowledge could not attend the Court and the suit is abated as per the orders, dt.30-10-2015.

2.1). It is further submitted that the defendant during the pendency of the above said suit stopped the constructions in the EFGH portion and also the 3 foundation raised in the site between Panchayat road and plaint schedule property.

The defendant recently after the dismissal of the suit as abated started proclaiming in the village that he would make constructions in the encroached portion of EFGH also. Since, last 3 days the defendant with a malafide intention with a view to further encroach into plaint schedule property highhandedly tried to make permanent constructions in EFGH of plaint plan and also by further encroaching into plaint schedule property. Plaintiff having no other go reported the matter to the

S.H.O., Ambajipeta Police station and also to Mandal Revenue Officer, Ambajipeta but no action had been taken. The plaintiff is not able to resist the illegal acts of the defendant. Defendant laid basement in between the plaint schedule property and

Panchayat road by encroaching into EFGH of plaint plan ABCD which is plaint schedule property. If the defendant was allowed to make further constructions in the site, he may plead equities and plaintiff cannot get possession of the property.

Hence, the suit.

3.The defendant filed written statement denying the plaint averments and further contended that the defendant was granted a patta to the site adjacent to the

Government Puntha which belongs to the Government and he has been in peaceful possession and enjoyment without any interruption since the date of granting of patta. The defendant constructed a house with the funds supplied by the

Government in the said site. The watchmen of the Coconut garden on the North of the house of the defendant Gidla Srinu, with whom the defendant got some ill- feelings and rivalries. Therefore, at the instance of Gidla Srinu the plaintiff without ascertaining the truth got filed the suit with frivolous allegations. The defendant did not encroach any part of the site of the plaintiff. It is false for the plaintiff to allege that the construction of the house of the defendant is at basement level. The entire structure is completed long ago and the plaintiff's wife filed a suit in O.S.No.76/2009 with similar allegations with similar relief and the defendant filed his written statement and the said suit was dismissed on 30-10-2015 as abated as the plaintiff in that suit did not report ready. The plaintiff having got knowledge about the dismissal instead of preferring the appeal or revision filed the present suit for the 4 same relief. Therefore, the main suit itself is not sustainable under Law and hit by the principles of Res-judicata and barred under Order-II, Rule-2 of Code of Civil

Procedure.

3.1). It is further submitted that the plaintiff misconceived the relief and there is no cause of action to the plaintiff to complain anything against the defendant and the alleged threat has already became in-fractious since the construction is over long back to the knowledge of the plaintiff. Therefore, the plaintiff is not entitled to mandatory injunction on the guise of the alleged interference or encroachment of the plaint schedule property belongs to the plaintiff.

3.2). It is further submitted that the defendant is a Coconut plucker and lives by honest means and he never indulged in any criminal cases or there any occasion arose to quarrel with anybody. It is the plaintiff who is politically influential and financially sound and is up to anything and therefore the defendant is threatening the plaintiff does not arise at all. The plaintiff suit is otherwise not maintainable since the Government is not made as party as the patta granted by them in which this defendant constructed his house.

3.3). It is further submitted that the defendant without admitting that he encroached any site of the plaintiff even if it is taken to be true for argument sake the suit for mandatory injunction for removal was long back barred by time.

Absolutely, there are no merits in the suit and the suit is liable to be dismissed in limine. The plaintiff in order to harass the defendant in one way or other filed the suit. There is no cause of action for the plaintiff to file the suit and the alleged cause of the action is not true and correct. The value of the suit is not correct and the

Court fee paid is also not correct. The suit is bad for non-joinder of necessary and proper parties to the suit. Hence, prayed to dismiss the suit.

4.Basing on the above pleadings, the following issues were settled for trial .

1. Whether plaintiff is entitled for relief of mandatory injunction as prayed for ?

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2. Whether the plaintiff is entitled for delivery of vacant possession as prayed for ?

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

4. To what relief ?

5.In support of the case of the plaintiff, he himself examined as PW.1 and she got examined one Gidla Srinivasarao as P.W.2 and got marked Ex.A.1 On the other hand, the defendant himself examined as DW.1. On behalf of the defendants DWs.2 and 3 were examined. No documents were marked on behalf of the defendant.

6.On the aforementioned evidential settings, it is vehemently canvased by the learned counsel for the plaintiff, Sri A.V.S.Prasad Garu that the plaintiff had got marketable title over the plaint schedule property succeeded from his wife as a sole legal representative. The defendant laid basement in between the plaint schedule property and Panchayat road by encroaching into EFGH portion of the plaint plan ABCD. Previously, his wife filed O.S.No.76/2009 against the defendant for mandatory injunction and permanent injunction. During the pendency of the said suit, his wife died intestate on 22.11.2012 leaving behind him as her only legal heir and they have no children. Due to lack of knowledge he could not approach his counsel within time to add him as legal representative of his wife-Udaya Ratnam.

Later, he filed I.A.No.832/2015 for condonation of delay. But, the said application was dismissed on merits and the suit was also dismissed as abated on 30.10.2015.

The defendant during the pendecny of the above suit, stopped the constructions in the EFGH portion and also the foundation raised in the said site. Since, last three days, the defendant with a view further encroach into the plaint schedule property, he is highhandedly trying to make permanent constructions in EFGH and also further encroaching into the plaint schedule property. The report of the Advocate

Commissioner clearly shows that the defendant encroached and constructed a house in the suit plan property in EFGH portion. The Advocate Commissioner gave measurements of the said encroachment in his report. DW.1 in his cross- 6 examination admitted that after dismissal of the suit in O.S.No.76/2009 he completed the construction on the basement. Therefore, he canvassed for the decree of the suit in favour of the plaintiff.

7.Severely fulminating the arguments, it is strongly canvased by the learned counsel for the defendant, Sri. V.Nageswarararo garu that it is the jurisprudential justification that person who approaches the Court for seeking the relief of mandatory injunction must come to the Court with clean hands and clean mind. In the matter at hand, the plaintiff came to the Court with soiled hands.

Except Ex.A.1 sale deed in the name of his wife, the plaintiff did not produce any link document of her vendor before this Court to show that her vendor has got right, title over the said property to transfer the same in her name. The cause of action for the suit arose on 29.3.2008. The earlier suit in O.S.No.76/2009 was dismissed as abated. There is no continuation of cause of action for the present suit as the plaintiff herein failed to restore the suit in O.S.No.76/2009 by preferring any

Revision against the dismissal order passed in delay condonation petition filed by the plaintiff in I.A.No.832/2015. The limitation for filing mandatory injunction is three years. Further, if any persons seeks mandatory injunction against a private property, he has to seek declaration. The Advocate Commissioner did not file any data along with plan to ascertain what the measurements are taken as per sale deed and field measurement books. He did not find any fixed Stones for taking measurements to arrive at the actual extent of the respective enjoyment of the properties and if he would have taken basing on the available Stones, there will not be any encroachment. There is no basis for the learned Advocate Commissioner to opine that there is an encroachment of 13 sq.yards. He also failed to mention the yielding Coconut trees in the site granted to the defendant in the patta and there is a Thatti fencing demarcating the same. Further, he vehemently argued that the plaintiff having got knowledge about the dismissal of the suit and interlocutory application in I.A.No.832/2015, failed to prefer appeal or revision and filed the present suit for the same relief which is hit by the principles of Res-judicata and barred under Order II Rule 2 of Code of Civil Procedure. It is well neigh settled that 7 the plaintiff has to swim or sink on the strength of his own case, and weakness of the defendant will not enhance the credibility of the case of the plaintiff. Therefore, he canvassed for the dismissal of the suit.

ISSUE Nos.1 and 2:

8.It is the case of the plaintiff is that his wife Rokkala Uday Ratnam purchased an extent of Ac.0.56 cents in R.S.No.212/3 and Ac.0.58 cents in

R.S.No.212/4 of Machavaram village of Ambajipeta Mandal under a registered sale deed. The defendant is claiming an extent of Ac.0.01 cent under a patta said to be granted by the Government. He started construction of a pucca daba house in between the plaint schedule property and Panchayat road by encroaching a part of the schedule property to a width of 3 feet and length of 10 feet shown as EFGH of plaint plan. His wife Uday Ratnam filed a suit in O.S.No.76/2009 on the file of this

Court against the defendant herein for mandatory injunction and permanent injunction. His wife died intestate on 22.11.2012 leaving behind her, himself alone as legal heir as they have got no children. Due to lack of knowledge, he could not approach his counsel within time and later he filed I.A.No.832/2015 to condone the delay of 935 days in filing the petition to set aside the abatement order but the said application was dismissed by this Court on 30.10.2015. During pendency of the above said suit, the defendant stopped the construction in the EFGH portion on the foundation raised by him. But recently, the defendant started permanent constructions in EFGH plaint plan portion to further encroach into the plaint schedule property.

9. On the other hand, the contention of the defendant is that he did not encroach any inch of site of the plaintiff. He constructed his building in the site granted by the Government to him and it is a road margin Poramboke site. There are two standing Coconut trees aged about 70 years old, demarcating the land of plaintiff. The site upto the said trees is in his occupation. Since, from the time of his father the Government recognized their long possession and enjoyment in favour of his father in the year 1975. After his death, the defendant and his brothers 8 continued in possession and enjoyment by construction of thatched houses and the

Tahsildar issued possession certificate to them in the year 2008. The plaintiff filed the present suit at the instigation of one Gidla Srinu and his brother Ramakrishna who have grudge against him. There is no possibility to protrude into plaintiff’s land as the two Coconut trees are situated on the North. His construction is inside the said trees and he did not encroach the site of the plaintiff.

10.In order to appreciate the validity and sustainability of the rival stances, now at this juncture, this Court is obliged to advert to the material emanated from the testimonies of P.Ws.1 and 2, DWs.1 to 3 and recitals of Ex.A1.

11.From the pleadings and evidence of both parties, it is not in dispute that the wife of PW.1 filed a suit in O.S.No.76/2009 against the defendant herein and the said suit was dismissed for default and the application filed by PW.1 herein in I.A.No.832/2015 to condone the delay was also dismissed by this Court. He did not prefer any revision against the dismissal order of I.A.No.832/2015.

12.Now, this Court setting forth the scope of controversy under different heads which are stated below.

Whether the suit is hit by Order II, Rule 2 of Code of Civil Procedure

as contended by the learned counsel for the defendant ?

13.In response to the above and for better assessment of the point, once again, this Court may revert to the averments made in para No.4 of the plaint. Para

No.4 goes on to specify that “the plaintiffs wife Rokkala Uday Ratnam a suit in

O.S.No.76/2009 against the defendant for mandatory injunction and

permanent injunction. In the said suit the defendant filed written statement

and contested the same. The plaintiff’s wife Udaya Ratnam died on 22.11.2022

leaving behind her, the plaintiff as her sole legal heir. He filed I.A.No.832/2015

to condone the delay of 935 days in filing the petition to set aside the

abetment and the said application was dismissed on merits on 30.10.2015.”

9

“During his cross-examination, PW.1 categorically admitted that he did not

prefer any Revision on the dismissal order of I.A.No.832/2015.”

14.For the sake of understanding Section 11 of the Code of Civil

Procedure is reproduced here under:

Section 11 of the Code of Civil Procedure reads thus: "No Court shall

try any suit or issue in which the matter directly and substantially in issue

has been directly and substantially in issue in a former suit between the

same parties, or between parties under whom they or any of them claim,

litigating under the same title, in a Court competent to try such subsequent

suit or the suit in which such issue has been subsequently raised, and has

been heard and finally decided by such Court.

Explanation I. The expression “former suit” shall denote a suit which

has been decided prior to the suit in question whether or not it was instituted

prior thereto.

Explanation II. For the purposes of this section, the competence of a

Court shall be determined irrespective of any provisions as to a right of

appeal from the decision of such Court.

Explanation III. The matter above referred to must in the former suit

have been alleged by one party and either denied or admitted, expressly or

impliedly, by the other.

Explanation IV.-Any matter which might and ought to have been made

ground of defence or attack in such former suit shall be deemed to have been

a matter directly and substantially in issue in such suit.

Explanation V.-Any relief claimed in the plaint, which is not expressly

granted by the decree, shall, for the purposes of this section, be deemed to

have been refused.

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Explanation VI.-Where persons litigate bonafide in respect of a public

right or of a private right claimed in common for themselves and others, all

persons interested in such right shall, for the purposes of this section, be

deemed to claim under the persons so litigating.

Explanation VII. The provisions of this section shall apply to a

proceeding for the execution of a decree and references in this section to any

suit, issue or former suit shall be construed as references, respectively, to

proceeding for the execution of the decree, question arising in such

proceeding and a former proceeding for the execution of that decree.

Explanation VIII. An issue heard and finally decided by a Court of

limited jurisdiction, competent to decide such issue, shall operate as res-

judicata in as subsequent suit, notwithstanding that such Court of limited

jurisdiction was not competent to try such subsequent suit or the such issue

has been subsequently raised."

15.Here in present case on hand, as per the case of the plaintiff he filed

I.A.No.832/2015 and the said application was dismissed on merits but the plaintiff herein did not prefer any revision against the said order, ultimately the judgment passed in O.S.No.76/2009 by this Court abating the suit became final.

16.Now this Court feels that it is appropriate to reproduce Order XXII, Rule 9 of Code of Civil Procedure for the purpose of understanding:

Order XXII Rule 9 of Code of Civil Procedure: (1) where a suit abates or

is dismissed under this Order, no fresh suit shall be brought on the same

cause of action.

(2) The plaintiff or the person claiming to be the legal representative of

a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if

it is proved that he was prevented by any sufficient cause from continuing

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the suit, the court shall set aside the abatement or dismissal upon such

terms as to costs or otherwise as it thinks fit.

(3) The provisions of Section 5 of Limitation Act, 1877, shall apply to

application under sub Rule (2).

Explanation: Nothing in this rule shall be construed as barring, in any

later suit, a defence based on the facts which constituted the cause of action

in the suit which had abated or had been dismissed under this Order.

17.A plain reading of the above provision it clearly shows that where a suit abates or dismissed under this Order, no fresh suit shall be brought on the same cause of action. The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an Order to set aside the abatement or dismissal, and if it is proved that he is prevented by any sufficient cause from continuing the suit, the

Court shall set aside the abatement or dismissal upon such terms as to be passed or otherwise as it thinks fit.

18.Here in present case on hand, the wife of the plaintiff filed the suit in

O.S.No.76/2009. It shows that the cause of action for filing the said suit was started

when the defendant started alleged construction of his house by encroaching her site. Now again the plaintiff herein contending that since 3 days before filing the present suit, the defendant is trying to make permanent constructions in the EFGH plaint plan by further encroaching into the plaint schedule property. But, he did not specifically stated how much extent the defendant tried to encroach his site. He also did not specifically stated the date when the defendant started the alleged construction. But, actually the original cause of action had started when the defendant started construction of his house. If really, the defendant stopped the construction of his building after filing of the suit by the wife of PW.1 herein, he would not have filed the interlocutory application for setting aside of abatement order against the plaintiff in O.S.No.76/2009. Further, the plaintiff herein did not prefer any revision against the dismissal order in I.A.No.832/2015. So, it can be 12 safely conclude for the purpose of filing of the suit only the plaintiff created the fresh cause of action.

19.The learned counsel for the defendant further argued that if any party asks for mandatory injunction against other private property he has to seek declaration. The learned counsel for the plaintiff argued that since, the defendant did not deny the title of the plaintiff, there is no necessity to seek declaration of title.

20.Here in present case on hand, the contention of the plaintiff is that the defendant encroached EFGH portion of the plaint plan. During cross-examination of

PW.1, he categorically admitted that as on the date of dismissal of the suit, the defendant is in possession of the structure as it is. He does not know whether the

Government issued the patta to the encroachers of the puntha. The panchayat laid cement road on the South of the encroachers of the puntha. There are four other houses adjacent to his site. He does not know whether the Government granted any patta to the defendant’s father in the year 1975. He does not know whether the father of the defendant used to reside in the house. They purchased their property in the year 1988 or 1989. The occupiers in the puntha are having thatched houses by the time of purchase of his land. There were Coconut trees along the side of the puntha. The Coconut trees were not encroached by the defendants.

21.PW.2 in his cross-examination categorically admitted that he does not know the description of the plaint plan. About 40 to 50 years, the defendant and his father are residing in the adjacent of the plaint schedule property. He does not know whether the patta is issued to the defendant in the year 1975. He cannot say the width of the puntha. Except, his oral evidence there is no documentary evidence of proof whatever he gave the evidence. He gave his evidence in favour of the plaintiffs as they are his relatives. Further, the plaintiff except Ex.A1 registered sale deed, did not file any link document of his vendor to show that his vendor has got the right, title over the said property before selling the same to the plaintiff’s wife.

22.Eventhough the plaintiff cross examined DWs.1 to 3 at length nothing was elicited in his favour. During cross-examination of DW.1, he categorically stated 13 that he completed the construction on the basement after dismissal of the suit in

O.S.No.76/2009, for which there is no denial from the plaintiff. This evidence of

DW.1 clearly shows that the defendant completed the construction of his house on the basement after dismissal of the suit in O.S.No.76/2009 and as such the contention of the plaintiff that the cause of action arose about 3 days back of filing of the present suit cannot be believed.

23.The learned counsel for the defendant further argued that the limitation for filing the suit is hopelessly barred as the limitation for filing mandatory injunction is within 3 years. In support of his contention he relied on a decision of the

Honourable High Court of Madras in SA No.674/2015 Between R.Kumar

Vs.G.Jaganmoorthy, dt.25.10.2017, wherein it was held at Para No.13 by relying on the judgment in 2004 (4) CTS 231 Pankaja and Another Vs. Yellappa (D)

Lrs., and others;

Para No.14:Regarding the other contention raised by the learned

counsel appearing for the respondents that as per Section 22 of the

Limitation Act, if a person continuously breaches or torts, a fresh period of

limitation begins to run at every moment of time is concerned, I am of the

considered view that it is not a continuous breach, in the present case on

hand. What constitute continuous breach was considered by the Delhi High

Court in the judgment reported in AIR 1994 Delhi 161, Faqir Chand (through

L.Rs.)., v. Lila Ram (through L.Rs.). Paragraph 18 of the said judgment is

usefully extracted here under:

"18. In the plaint it was averred that this construction was made about

32 months prior to the filing of the suit. There was no specific denial of this

particular fact in the written statement but still the court thought it advisable

to examine the defendant-respondent in order to clarify his plea with regard

to he dale in the construction of the aforesaid tin-shed. At any rate, as the

plaintiff-appellant himself had admitted in his testimony about the existence

of this tin-shed for more than 3 years prior to filing of the suit the first

14

appellate court was not wrong in taking notice of this admission of fact and

then drawing the legal inferences available flowing from such facts."

13. In the aforesaid case, this Court has held that as there was no continuous

breach, the appellant is not entitled to file a suit for mandatory injunction

under Article 113 of the Limitation Act. In the facts of the present case,

plaintiff issued legal notice on 10.3.2004 to the defendant and also lodged

police complaint to remove the encroachment made by the defendant.

Therefore, it is clear from the facts that the defendant has already

encroached and constructed a temporary structure in the suit property in the

year 2004 itself. In view of the above fact, there is no continuous breach or

threat to the plaintiff as averred in the plaint. Therefore, the appellant/plaintiff

has not proved his case that the suit filed by him for the relief of mandatory

injunction is within a period of three years under Article 113 of the Limitation

Act. Therefore, there is no error or illegality in the judgment and decree

passed by the appellate Court and the same is confirmed. The substantial

question of law raised in the Second appeal is answered accordingly.

24.In this case, the plaintiff filed the present suit after 4 years of death of his wife and one year after the dismissal of I.A.No.832/2015, dt.30.10.2015. As earlier discussed the defendant had already encroached and constructed a basement and after dismissal of suit in O.S.No.76/2009 he completed the construction of his house. Therefore, there is no continuous breach or threat to the plaintiff as averred in the plaint. Hence, the above authority is aptly applicable to the case on hand and the plaintiff filed the present suit within 3 years of the period of limitation u/Sec.113 of Limitation Act.

25.It is the fundamental tenet of Law of evidence that He who assertsthe burden is on him, he has to prove affirmatively and positively the existence or non- existence of fact-in-issue. The original onus is changeless and it does not shift or alter, which is known as legal burden or persuasive burden. While the evidential 15 burden alters basing on the plea propounded by the parties to the lis. Therefore, in the controversy at hand, in view of the above mentioned statutory prescription, the burden is on the plaintiff, he has to prove succinctly that there is an encroachment of EFGH portion shown in the plaint.

26.Therefore, in the wake of aforementioned reasons, issue Nos.1 and 2 are answered in favour of the defendant and against the plaintiff.

ISSUE No.3 :

27.In view of the above discussions, in the end, I hold that the plaintiff failed to prove his case as per the evidential standards, and as such he is not entitled for the permanent injunction as prayed. Thus the suit of the plaintiff deserves to be dismissed. Therefore, this issue is answered in favour of the defendant and against the plaintiff.

ISSUE No.4:

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

Typed to my dictation by the Stenographer Grade III, corrected and

pronounced by me in open Court on this the 21stday of March, 2025.

Sd/- Md.Rahamtulla

Civil Judge, (Junior Division)

-cum-Judicial Magistrate of I Class, Mummidivaram (FAC) Addl. Civil Judge, (Junior Division) Cum Addl. Judicial Magistrate of I Class

First Class,Amalapuram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:

P.W.1/14.03.2022 : Rokkala Subba Rao P.W.2/16.12.2022 : Gidla Srinivasa Rao

FOR DEFENDANT:

D.W.1/07.12.2023 : Undurti Krishna D.W.2/28.03.2024 : Sunkara Mohana Krishnarao D.W.3/26.04.2024 : Sunkara China Rajarao 16

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A1 : Certified copy of registered sale deed standing in the name of plaintiff’s wife for the plaint schedule property, dt.29.3.2008

FOR DEFENDANT:

Nil

Sd/- Md.Rahamtulla

C.J., (J.D.,) Cum J.M.F.C., MMD (FAC) A.C.J., (J.D.,) Cum A.J.M.F.C., AMP 17

Plaint presented on:06.05.2016 Plaint Registered on:20.6.2016

:: IN THE COURT OF ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-

ADDITIONAL JUDICIAL MAGISTRATE OF THE I CLASS, AMALAPURAM

Present:- SRI MOHAMMED RAHAMTULLA

Civil Judge (Junior Division) Cum Judicial Magistrate of I Class, Mummidivaram.

(FAC) Additional Civil Judge (Junior Division) Cum Additional Judicial Magistrate of

I Class, Amalapuram.

Friday, this the Twenty First (21st Friday, this the Twenty First (21st) day of March, 2025 ) day of March, 2025 ORIGINAL SUIT No.92/2016 ORIGINAL SUIT No.92/2016

Between: Rokkala Subba Rao, S/o. Ramanna, Age.62 years, Cultivation, Ganganapalli, Kakinada Mandal. … PLAINTIFF

And

Undurti Krishna, S/o.Subba Rao, Age.40 years, Agriculture, Coolie, Jayanthi Nagar. Ambajipeta. … DEFENDANT

This suit is filed by the plaintiff against the defendant for mandatory injunction directing the defendant to remove the illegal and unauthorized constructions made in EFGH of plaint plan property and deliver vacant possession of the same to the plaintiff and for consequential permanent injunction restraining the defendant his men and followers from interfering with the possession and enjoyment of ABCD of plaint plan and for costs. CAUSE OF ACTION : Cause of action for the suit arose on on 29-03-2008, when the plaintiff's wife purchased the plaint schedule property which is shown as ABCD and is in exclusive possession and enjoyment of the same and that the defendant encroached EFGH highhandedly, tried to make constructions plaintiff's wife Udayaratnam filed suit in

O.S.No.76/2009 on the file of this Hon’ble Court and during the pendency of the

said suit she died intestate on 21-11-2012 leaving behind the plaintiff as her only legal heir and the said suit was dismissed as abated on 30-10-2015 and since 3 days the defendant started proclaiming in the village that he will make permanent constructions of daba houses in the site in between the plaint schedule property and the Panchayat road by highhandedly encroaching into some part of plaint schedule property which is shown as EFGH and at Machavaram where the property is situated which is within the jurisdiction of this Honourable Court.

VALUATION :-

a) For mandatory injunction the suit is valued at Rs.10,000/-. Hence, a Court fee of Rs.786/- is paid u/Sec.26, Sch. I, Art. I (c) of A.P.C.F. and S.V. Act.

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b) For relief possession of EFGH property, valued at Rs. 8,00,000/- per acre as per S.R.O's certificate for the extent of 3 x 10 = 30. Sq.feets = 3.33 Sq.yds., is valued at Rs. 550/-

Hence, a Court fee of Rs.62/- is paid U/Sec.34, Schedule I, Art, I (c) of A.P.C.F. and S.V. Act.

Total value of the suit is Rs.10,550/- and the Court fee paid is Rs.848/-

This suit has came before me for final hearing on 27.2.2025, in the presence of Sri. A. V. S. Prasad, Advocate for the plaintiff and of Sri. V. Nageswararao, Advocate for the defendant and upon hearing both sides,and upon perusal of the entire material and on hearing the plaintiff’s counsel, this court Doth Order and Decree as follows:

:: DECREE ::

1.that the suit be and the same is hereby dismissed without costs;

(Copy of Plaint schedule and plan is hereby attached)

Given under my hand and the seal of this Court, this the 21 st of March, 2025.

Sd/- Md.Rahamtulla

Civil Judge, (Junior Division)

-cum-Judicial Magistrate of I Class, Mummidivaram (FAC) Addl. Civil Judge, (Junior Division) Cum Addl. Judicial Magistrate of I Class

First Class,Amalapuram.

PARTICULARS OF COSTS

For Plaintiff Rs. Ps. For Defendants

Vakalat fee 2-00

Plaint Fee848-00No Cost Memo Filed

Process Fee 200-00

Total (No Cost Memo 1,050-00 filed)

Sd/- Md.Rahamtulla

C.J., (J.D.,) Cum J.M.F.C., MMD (FAC) A.C.J., (J.D.,) Cum A.J.M.F.C., AMP Note : “The parties should apply as soon as possible for the return of all exhibits which they may wish to preserve, as the record will be liable to be destroyed after 3 years from this date.”

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:: IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS CUM

CIVIL JUDGE (JUNIOR DIVISION), MUMMIDIVARAM ::

Present:- SRI MOHAMMED RAHAMTULLA

Judicial Magistrate of I Class Cum Civil Judge (Junior Division), Mummidivaram.

Friday, this the Seventeenth (17th ) day of April, 2026.

CALENDAR CASE No.474/ 2024

Between: The State : Sub Inspector of Police,

Mummidivaram Police Station....COMPLAINANT

And

Rangisetty Srinivas @ Bonkadu, S/o.Lakshmi Narayana, Age.35 Years, Serepalem, Mogalthuru Village and Mandal.

...ACCUSED

This case is coming on 10.4.2026 before this Court in the presence of learned Assistant Public Prosecutor for Prosecution and Sri M.Venkateswara Rao and Sri M.Ali Hassan, Advocate for the accused and the matter having stood over for consideration till this day, this Court delivered the following:

: J U D G M E N T :

1.The Sub Inspector of Police, Mummidivaram filed combined charge sheet against the accused in Cr.No.287/2024 and 289/2024 for the offence, punishable under Section 303(2) r/w 317 (2) of Bharatiya Nyaya Sanhita alleging as follows:

2. PW.1-Mamidisetti Lakshmi is resident of Turupu Tallau Village, Narasapuram

Mandal of West Godavari District. On 08-03-2024 morning at 10-30 A.M., she and her family members attended to the festival of Sri. Balayogi temple Mummdivaram on their Hero Honda Splendor Motor Cycle bearing No. AP 39 BR 7647 by parking their motorcycle in the surroundings of the Temple. After completion of the Darshan, at about 1-00 PM., they returned from the Temple and found missing of their parked motor cycle. Some unknown offenders committed theft of PW.1 motorcycle and 2 escaped with booty. On that PW.1 gave report to PW.4-Guttula Bhyrava Swamy,

Head Constable, Mummidivaram Police Station.

2.1). PW.2-Tirumani Yesubabu is resident of Peda Pallvapalem village,

Mogalthuru Mandal of West Godavari District. On 2-09-2024 he and his wife went to

Ch.Gunnepalli village to Goddess Sathemmathalli Temple on their Hero Honda passion Pro Motor Cycle Bearing No. AP 37 DG 6383 morning at 11.00 AM., by parking their motorcycle in the surroundings of Temple. After completion of

Dharshan, they returned and found their parked motor cycle missing. Some unknown offenders committed theft of PW.2 motorcycle and escaped with booty. On that PW.2 gave report to PW.4-Guttula Bhyrava Swamy, Head Constable,

Mummidivaram Police Station.

2.2). Basing on the report given by Pws.1 and 2, PW.4 registered a case in

Crime No.287/2024 and Cr.No.289/2024 under Section 303(2) of Bharatiya Nyaya

Sanhita, and did entire investigation. During the course of investigation, he visited the scene of offence and secured 10 witnesses and recorded their detailed statements u/Sec.161 Cr.P.C. During the course of investigation, PW.5 along with

PW.3 and other mediator while conducting vehicle checking at Alluri Sitarama Raju

Statue of I.Polavaram, arrested the accused vide Cr.No.330/2024 of I.Polavaram

Police Station and seized the property in this crime in the presence of mediators.

The accused was produced before this court on P.T., warrant and he was sent for judicial custody. After completion of investigation he filed charge sheet against the accused.

3.This court took cognizance under section 303(2) r/w 317 (2) of Bharatiya 3

Nyaya Sanhita against the accused. Copies of documents were furnished to him as contemplated under section 230 of Bharatiya Nagarik Suraksha Sanhitha.

4. On examination of the accused under Section 262(1) Bharatiya Nagarik

Suraksha Sanhitha, he denied the charge sheet allegations levelled against him.

Hence, the charge under Section 303(2) r/w 317 (2) of Bharatiya Nyaya Sanhita, have been framed, read over and explained to the Accused in Telugu for which he pleaded not guilty and claimed to be tried. Hence, the Accused have been tried for the said charges levelled against him.

5.In support of it’s case, the prosecution examined P.Ws.1 to 6 and got marked

Exs.P.1 to and P.5. The learned Assistant Public Prosecutor, given up the evidence of LWs.2 to 5, 7 to 10 and 12.

6.After completion of trail, the accused was examined under section 351 of

Bharatiya Nagarik Suraksha Sanhitha, with the incriminating material available in the evidence of Prosecution witnesses for which he denied and reported that no defence.

7.After having heard the rival contentions of the learned Assistant Public

Prosecutor for the prosecution and the learned counsel for the Accused, the point germane for determination is:

Whether the prosecution could bring home the

guilt of the accused for the charge under Section

303(2) or 317 (2) of Bharatiya Nyaya Sanhita,

beyond all reasonable doubt ?

P O I N T ::

8.The learned Assistant Public Prosecutor argued that the prosecution by 4 examining PWs.1 to 6 proved that the accused committed theft of M.Os.1 and 2 motorcycles in Crime No.287/2024 and Cr.No.289/2024 and he was in possession of the same and he canvassed for conviction of the accused.

9.The learned counsel for the accused argued that there is no evidence that the accused committed theft of M.Os.1 and 2 as alleged. The evidence of PW.3 who is mediator in this case did not specifically state the vehicle details which were allegedly seized in his presence at Komaragiri village, Serepalem and Mogalturru,

West Godavari District. Further, the Investigation Officer-PW.5 failed to secure any independent inhabitant at the house of the accused which was located in a residential area. The Investigation Officer has not prepared any rough sketch of the alleged place of seizure of the vehicles at Serepalem village. The Investigation

Officer flouted the mandatory provision of Section 100(4) of Cr.P.C., corresponding to Sec.103(2) of B.N.S.S., and as such the search and seizure proceedings are vitiated. PW.3 is a Village Revenue Officer who acts as per the instructions of the

Police to help their case. Hence, his evidence cannot be believed. The prosecution failed to prove it’s case against the accused beyond all reasonable doubt. Hence, the counsel for the accused canvassed for the acquittal of the accused.

10.At the outset, it is pertinent to mention that there is no cognizable material to make the Accused liable for the offence, punishable under Section 303(2) of

Bharatiya Nyaya Sanhitha (herein after referred as BNS) except the alleged confessional statement of the Accused, said to have made before the Police.

11.It is needless to reiterate that the alleged confession of the Accused cannot be taken into consideration and it is hit by Section 25 of the Indian Evidence Act 5 corresponding to Sec.23 of Bharatiya Sakshya Adhiniyam, 2023. Barring the alleged confession of the Accused, there is no other material to connect the

Accused with the alleged perpetration of offence, under Section 303 (2) of BNS.

Viewed in any manner, the prosecution fails to establish the charge under Section 303 (2) of BNS. against the accused beyond all reasonable doubt.

12.The evidence of Pws.1 and 2 clearly shows that some unknown offenders committed theft of his M.Os.1 and 2-motorcycles, when M.O.1 was parked at the surroundings of the Sri Balayogi Temple, Mummidivaram and when M.O.2 is parked at the surroundings of Sri Sathemmathalli Temple, Ch.Gunnepalli. Nothing was elicited to disprove their evidence and to prove that their motor bikes were not committed theft. There are no suggesting inferences to disbelieve their evidence.

Unless a theft was committed, there is no necessity to P.Ws.1 and 2 to approach the Police and give report by alleging that their motor cycle was committed theft.

Hence, it can be safely said that some unknown offenders committed theft of their motor cycle and M.Os.1 and 2 are construed to be stolen properties.

13.Adverting to the charge u/Sec.317 (2) of BNS., the prosecution mainly relied on the testimonies of P.Ws.3 and 5, who are the mediator and Investigation Officer.

As per the evidence of P.W.3 who is said to be mediator and in whose presence the seizure and arrest of accused was effected that the accused was arrested by P.W.5 in the case of I.Polavaram Police Station and that in his presence Ex.P.3 and Ex.P4 mediator reports and confessional statements of accused was recorded and he attested the same and in the confessional statements, the accused confessed 6 about committing theft of 13 motor cycles relating to the crimes of various Police

Stations.

14.As per the evidence of P.W.4-G.Bhairava Swamy, the then Head Constable,

Mummidivaram Police Station he received reports from PW.1 and PW.2 with regard to missing of their respective motor cycles and he registered a case in Cr.No.287 of 2024 and Cr.No.289 of 2024 of Mummidivaram Police Station u/Sec.303 (2) of BNS and he conducted investigation. Later, due to his transfer he handed over the case file to PW.6. P.W.5-J.Bhanu Prasad, the then Sub Inspector of Police, I.Polavaram

P.S., has deposed that on 20.9.2024 he went to Alluri Seetharamaraju statue situated in Komaragiri village, I.Polavaram Mandal along with his men and PW.3 and LW.12-Sadhanala Venkata Sitaram, VRO., on the information received by him and conducted vehicle checking and at that time the accused who was coming on

Glamour motor cycle bearing Reg No.AP 39 CP 1729 which was a stolen bike at

RCM Church, Komaragiri village, tried to skulk away on seeing them, then with the help of his staff he detained him and on his enquriy the accused revealed his name and address particulars and further confessed that he committed theft of the said motorcycles and other motorcycles. He identified the said vehicle related to

Cr.No.330/2024 of I.Polavaram Police station. He seized the said motor cycle from the possession of the accused. The accused further confessed that he also committed theft of some other motorcycles at various places. For the seizure and confession of the accused, he got prepared Ex.P3 mediators report, which was marked through PW.3. M.Os.1 and 2 are the motorcycle marked through PWs.1 and 2.

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15.PW.5 further deposed that the accused lead them to Serepalem village,

Mogulthuru Mandal to his house and had shown the motorcycles kept in bushes on the backyard of his house to them. He verified the said motor cycles and found

Splendor Plus motor cycle bearing Regd.No.AP 39 BR 7647 related to Crime

No.287/2024 of Mummidivaram Police Station, Splendor Plus Motor Cycle bearing

Regd.No.AP 39 EK 9738 related to Crime No.172/2024 of Narsapuram Town Police

Station, Glamour Motor Cycle bearing Regd.No.AP 39 M 8549 related to Crime

No.174/2024 of Narsapuram Town Police Station, Passion Pro Motor Cycle bearing

Regd.No.AP 37 CU 3221 related to Crime No.354/2024 of I. Polavaram Police

Station, Splendor Plus Motor Cycle bearing Regd.No.AP 37 CJ 2922 related to

Crime No.357/2024 of I. Polavaram Police Station, Splendor Plus Motor Cycle bearing Regd.No.AP 37 CX 1564 related to Crime No.356/2024 of I. Polavaram

Police Station, Splendor Motor Cycle bearing Regd.No.AP 39 JZ 2636 related to

Crime No.202/2024 of Katrenikona Police Station, Passion Pro Motor Cycle bearing

Regd.No.AP 37 DG 6386 related to Crime No.289/2024 of Mummidivaram Police

Station, Glamour Motor Cycle bearing Regd.No.AP 05 DP 3095 related to Crime

No.355/2024 of I. Polavaram Police Station, Passion Pro Motor Cycle bearing

Regd.No.AP 37 BX 8579 related to Crime No.367/2024 of I.Polavaram Police

Station, Splendor Pro Motor Cycle bearing Regd.No.AP 37 BN 3681 related to

Crime No.359/2024 of I.Polavaram Police Station and Glamour Motor Cycle bearing Regd.No.AP 37 CB 1466 related to Crime No.358/2024 of I. Polavaram

Police Station. To that effect of the seizure of the above motor cycles, he got prepared the mediators report on 20.9.2024 at 12.00 Noon, which was marked as 8

Ex.P4 through PW.3. Later, he communicated about the seizure of the motor cycles to the concerned Station House Officers. PW.6-D.Jwala Sagar, the Sub Inspector of

Police, Mummidivaram has received case file from PW.4 on 19.9.2024 and on 24.9.2024 he received information from PW.5 with regard to arrest of the accused and seizure of motorcycles. On that he filed PT., warrants and after obtaining PT., warrant he produced the accused before this court for judicial custody. After completion of investigation he filed charge sheet against the accused.

16.The learned counsel for the accused vehemently argued that PW.3 and another V.R.O., who are mediators to the alleged arrest, confession and seizure belongs to Komaragiri and Pasuvullanka villages respectively. PW.3 categorically admitted in his cross examination that he cannot say the details of the alleged 12 motorcycles seized by PW.5. He further admitted that at Muramalla centre,

Manikyambha centre and Veereswara Swamy Temple road centre, Sathemmathalli

Temple situated in Ch.Gunnepalli village, Sandy market centre at Kesanakurru village are busy centres and C.C., Cameras are there in the above said places. As per the evidence of PW.5 in his cross examination, the accused was proceeding from Yanam towards Amalapuram as per their record. PW.5 further admitted that there are Market committee checkpost, excise check post, I.Polavaram Police

Station in between Yanam and Komaragiri villages and the check post authorities will be present round the clock at their respective check posts. He further stated that their Police Constable M.Venkateswararao is their Computer Operator but he was not shown as a witness. The said Venkateswararao was also not shown as a scribe of the said mediator reports. Further, there are no signatures of the 9 investigation officer and the mediators on each and ever page of Exs.P3 and P4.

17.When the cross examination of PW.3-mediator is considered, he admitted that the Police did not issue any summons to him in writing. As per the evidence of

PW.3 he also accompanied PW.5 to Serepalem village, Mogalthuru Mandal which is not within the jurisdiction of I.Polavaram Mandal. When once a Public Servant leaves the Head quarters even on official duty he has to take written permission from his Officer under whom he works. Herein the present case on hand, PW.3 did not state that he took written permission from his Tahsildar to go to Serepalem village by leaving the head quarters. PW.3 further in his cross examination stated that the accused confessed that he committed theft of the said bike at the church in

Komaragiri village, where the function was going on. Further, as per the admission of PW.3 to go to Mogalthuru from Komaragiri the accused has got no necessity to go to Yanam. It is pertinent to mention that there are three churches in Komaragiri village as stated by PW.3 in his cross examination but it was not specifically mentioned from which church the accused committed theft of M.Os.1 and 2. PW.3 was not in a position to say the colour of the dress worn by the accused at that time. The above admissions of PW.3 is contradicting the evidence of PW.5 that the accused was coming from Yanam and proceeding towards Amalapuram. So, the evidence of PWs.3 and 5 is not inspiring the confidence of court to believe the case of the prosecution that the accused was caught hold by PW.5 in the presence of

PW.3 and another mediator at Alluri Seetharamaraju statue, Komaragiri village.

18.Regarding to the seizure of the other 12 bikes at the house of the accused in

Serepalem village, the prosecution mainly relied on Ex.P4-mediators report. PW.3 10 categorically admitted that he cannot say the details of the said 12 motor cycles.

Further, he stated that he cannot say the Door Number and the street name of the house of the accused. In Ex.P4 the door number and the street name and area name were not mentioned. Further, PW.3 stated that he cannot say the other inmates details of the house of the accused. There was no forest on the backyard of the house of the accused. He did not observe in which directions the house of the accused is situated. Further, it is pertinent to mention that PW.3 in his cross examination categorically admitted that at Muramalla centre, Manikyambha centre and Veereswara Swamy Temple road centre, Sathemmathalli Temple situated in

Ch.Gunnepalli village, Sandy market centre at Kesanakurru village are busy centres and C.C., Cameras are there. Further, as per the evidence of PWs.3 and 5, the distance between Komaragiri and Serepalem village is about 55 to 60 kilometres. PW.3 stated that he and LW.12 went to Serepalem village on the Bike of

LW.12. PW.5 evidence shows that the accused lead them to Serepalem village.

PW.5 never stated that they went to Serepalem village on their respective motorcycles. In Ex.P3 it was mentioned that PW.3 and LW.12 went to I.Polavaram

Police station and from there they proceed to Alluri Seetharamaraju statue,

Komaragiri village on the Police Jeep. It shows that PW.3 and LW.12 kept their motorcycle at the Police Station. Either PW.3 or PW.5 never stated that the accused along with M.Os.1 and 2-the stolen motorcycles in C.C.No.474/2024 (in

Cr.No.287/2024 and Cr.No.289/2024) were taken to the I.Polavaram Police Station and from there they have started on their Bikes. Further, it is pertinent to mention that in Ex.P4 it is mentioned PW.3 and the Sub Inspector of Police, Mummidivaram 11 and their men proceeded to Serepalem village on their motorcycles which is not the case of the prosecution.

19.Further, as per the admissions of PWs.3 and 5, the house of the accused is situated in a residential area but, PW.5-Investigation Officer did not try to secure any independent inhabitant of that locality to act as a mediator in this case for the search and seizure proceedings, further no fool would dump 12 motorcycles at his house and if really, the accused would have dumped 12 motorcycles somebody would have informed to the Police about the same. Non securing of the independent inhabitant of that locality is certainly floating the provision u/Sec.103 of

BNSS., corresponding to Sec.100 of Cr.P.C. Further, it is pertinent to mention that

Ex.P4 mediators report shows that on 20.9.2024 at 12.00 Noon the Sub Inspector of Police, Mummidivaram Police Station along with PW.3 and LW.12 proceeded to

Serepalem, Mogalthuru but not PW.5-Sub Inspector of Police, I.Polavaram Police

Station. It is not the case of the prosecution that the Sub Inspector of Police,

Mummidivaram also participated in the search and seizure proceedings. If really the Investigation Officer visited Serepalem village, why he has not prepared rough sketch of the said scene, for which there is no explanation from prosecution.

Therefore, it clearly shows that Ex.P4 mediators report was not prepared at

Serepalem village in the presence of the above mediators by PW.3.

20.The learned APP., submitted that the unexplained possession of the stolen property by the accused, would be a presumptive evidence against the accused and he has to be convicted for the charge u/Sec.317(2) of BNS. In support of his contention of he relied on the following decisions:

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1. AIR 1956 SC 54 Between: Sanwat Khan and another Vs. State of Rajasthan wherein at Para No.6 it was held “…...unexplained possession of the

stolen property while it would be presumptive evidence against a prisoner on

the charge of robbery would similarly be evidence against him on the charge

of murder.”

2. AIR 1954 SC 39 Between: Trimbak Vs. the State of Madhya Pradesh wherein at Para No.5 it was held that “we are satisfied that this was not the

correct way of approaching the decision of a case under section 411 IPC. It is

the duty of the prosecution in order to bring home the guilt of a person under

section 411 IPC., to prove that the stolen property was in the possession of

the accused, that some person other than the accused had possession of the

property before the accused got possession of it, and that the accused had

knowledge that the property was stolen property. There is no reliable

evidence to prove either of these facts.”

3. In Criminal Revision Case No.388/2012 Between Juttiga Durga Prasad

Vs. The State of Andhra Pradesh Rep. by it’s Public Prosecutor, High Court of

Andhra Pradesh at Amaravathi, dt.3.10.2024 where at Para Nos.18 and 19 it was held that;

Para No.18: “ in the case on hand, as discussed above, no plausible

explanation is furnished by the accused for possession of Mos.1 to 4 and that

he had received it or retained it dishonestly knowing or having reason to

believe the same to be a stolen property, a such, the prosecution could able

to prove the ingredients of the offence punishable under Section 411 IPC..,

against the accused No.1.”

Para No.19: “In that view of the matter, the trial court as well Sessions

court have categorically held that the testimony of prosecution witnesses

clearly goes to show that the prosecution is able to prove the guilt of the

petitioner/accused No.1 beyond all reasonable doubt for the offence under

Section 411 of IPC.”

21.At this stage this court relied on the decision As per the Judgment of " S.

Babu Saheb @ Babu Vs. State of A.P. - 2010 (1) ALT(CRI.) (A.P) 32 : If in a

given case the excise or police officials have to search a vehicle in a forest

area or at a place where there is no possibility of securing any local

mediators, then probably they will be justified in conducting seizure

proceedings in the presence of mediators brought by them from a different

13

place. But when they are conducting the search in a colony or at a place

wherein there is possibility of securing the presence of independent

mediators, the excise officials or prohibition officers are bound to take the

local respectable independent inhabitants. They must make sincere efforts to

secure local respectable mediators. That is the mandate of Section 100(4) of

Cr.P.C."

22.Further, in the second and third decisions relied on by the learned APP., itself clearly shows that it is the duty of the prosecution in order to bring home the guilt of a person under section 411 IPC., to prove that the stolen property was in the possession of the accused, that some person other than the accused had possession of the property before the accused got possession of it, and that the accused had knowledge that the property was stolen property. But, as discussed in the earlier paragraphs the prosecution failed to prove that the accused was in possession of the stolen bikes. Therefore, with great respect to the above authorities they are helpful to the case of the accused rather the case of the prosecution.

23.In view of the above said discussion, there is a doubt in the case of the prosecution and any amount of doubt in the case of the prosecution would go in favour of the accused. Hence, the accused is entitled for benefit of doubt.

24.In the result, the accused is found not guilty for the offence, punishable under

Sections 303 (2) r/w 317 (2) of Bharatiya Nyaya Sanhitha, and accordingly, he is acquitted u/Sec.271 (1) of Bharatiya Nagarik Suraksha Sanhitha. MO.1-Motorcycle which is handed over to the defacto complainant vide Crl.M.P.No.571/2025, dt.3.2.2025 and MO.2-Motorcycle which is handed over to the defacto complainant 14 vide Crl.M.P.No.4358/2024, dt.16.10.2024 shall holds good after the lapse of appeal time.

Typed to my dictation by Stenographer Grade III, corrected and pronounced by me in open Court, this the 17th day of April, 2026.

Sd/-XXXX

JUDICIAL MAGISTRATE OF I CLASS-CUM-

CIVIL JUDGE (JUNIOR DIVISION),

MUMMIDIVARAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: P.W.1: 02.03.2026 :Mamidisetti Lakshmi. P.W.2: 02.03.2026 : Tirumani Yesubabu. P.W.3: 10.03.2026 : Lanka Kodanda Srinivas, Village Revenue Officer, Komaragiri of I.Polavaram. P.W.4: 30.03.2026 : G.Bhairava Swamy, the then Head Constable, Mummidivaram Police Station. P.W.5: 01.04.2026 : J.Bhanu Prasad, the then Sub Inspector of Police, I.Polavaram Police Station. P.W.6: 08.04.2026 : D.Jwala Sagar, Sub Inspector of Police, Mummidivaram Police Station. FOR DEFENCE: None

DOCUMENTS MARKED

FOR PROSECUTION : Ex.P.1/PW.1: Report given by PW.1 Ex.P.2/PW.2: Report given by PW.2 Ex.P.3/PW.3: Mediators report, dt.20.9.2024. Ex.P.4/PW.3: Mediators report, dt.20.9.2024. Ex.P.5/PW.4: Original First Information Report in Cr.No.287/2024 Ex.P.6/PW.4: Rough Sketch. Ex.P.7/PW.4: Original First Information Report in Cr.No.289/2024 Ex.P.8/PW.4: Rough Sketch. FOR DEFENCE: Nil

MOs. Marked

M.O.1: Hero Honda Splendor Motor Cycle bearing No. AP 39 BR 7647 M.O.2: Hero Honda passion Pro Motor Cycle Bearing No. AP 37 DG 6383

Sd/-XXXX

J.M.F.C, Cum C.J., (J.D.,)

MMD.

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FORM No.72

CALENDAR AND JUDGMENT

District of East Godavari Calendar of cases tried by the Judicial Magistrate of I Class, Mummidivaram.

Judgment in Calendar Case No.474/2024 Nature of Offence: under Sections 303 (2) r/w 317 (2) of BNS

Date of Judgment: 17.4.2026 Report ofApprehensionRelease onCommencemeClosure ofSentence or Offence complainantof accusedbailnt of trialtrialorder 8.3.2024 &16.9.2024 & 27.9.20244.10.20242.3.20268.4.202617.4.2026 2.9.202418.9.2024

Explanation for the delay: The delay is due to non-appearance of the accused and non production of witnesses.

Judgment in Calendar Case No.474/2024 (Cr.No.287/2024 and Cr.No.289/2024) On the file of the Judicial Magistrate of I Class Court, Mummidivaram.

Complainant: The State : Sub Inspector of Police, Mummidivaram Police Station. Name ofAge Father’sReligionCalling ResidenceMandal accusedname Rangisetty Srinivas @ Bonkadu, S/o.Lakshmi Narayana, Age.35 Years, Serepalem, Mogalthuru Village and Mandal.

Finding: Not Guilty

Sentence:

In the result, the accused is found not guilty for the offence, punishable under Sections 303 (2) r/w 317 (2) of Bharatiya Nyaya Sanhitha, and accordingly, he is acquitted u/Sec.271 (1) of Bharatiya Nagarik Suraksha Sanhitha. MO.1-Motorcycle which is handed over to the defacto complainant vide Crl.M.P.No.571/2025, dt.3.2.2025 and MO.2-Motorcycle which is handed over to the defacto complainant vide Crl.M.P.No.4358/2024, dt.16.10.2024 shall holds good after the lapse of appeal time.

Sd/-XXXX

JUDICIAL MAGISTRATE OF I CLASS-CUM-

CIVIL JUDGE (JUNIOR DIVISION),

MUMMIDIVARAM.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, East Godavari Rajamahendravaram

1

:: IN THE COURT OF ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-

ADDITIONAL JUDICIAL MAGISTRATE OF THE I CLASS, AMALAPURAM

Present:- SRI MOHAMMED RAHAMTULLA

Civil Judge (Junior Division) Cum Judicial Magistrate of I Class, Mummidivaram.

(FAC) Additional Civil Judge (Junior Division) Cum Additional Judicial Magistrate of I Class, Amalapuram.

Tuesday, this the Eighteenth (18th Tuesday, this the Eighteenth (18th) day of March, 2025 ) day of March, 2025 ORIGINAL SUIT No.26/2019 ORIGINAL SUIT No.26/2019

Between:

Dangati Radha Krishna, S/o. Narasimha Murty, Age.55 years, D.No.7-63, Pullatikurru Village, Ambajipeta Mandal, East Godavari District, Amalapuram J.C.J.C.… PLAINTIFF

And

Vasamsetty Ramalingeswara Rao, S/o.China Subrahmanyam, Age.45 years, Employee, D.No.1-119, Lanka Thota, Pullatikurru Village, Ambajipeta Mandal, East Godavari District, Amalapuram J.C.J.C. Presently working as Security in A.P.S.R.T.C., Ramachandra Puram Village and Mandal, East Godavari District, Ramachandrapuram J.C.J.C.… DEFENDANT

This suit has came before me for final hearing on 6.3.2025 in the presence of Sri. P. V. Ramana Murhty, Advocate for plaintiff and of Sri. T. V. Prasada Rao, Advocate for the defendant and upon hearing both sides, and on perusing the material placed on record, and the matter having stood over till this date for consideration, this Court delivered the following:

: J U D G M E N T :

1.The plaintiff filed this suit for recovery of a sum of Rs.1,70,600/- due under the foot of promissory note, dt.25.12.2015 said to have been executed by the defendant for Rs.1,00,000/- in favour of the plaintiff with subsequent interest @ 24% p.a. and costs thereon.

THE BRIEF AVERMENTS OF THE PLAINT ARE IS AS FOLLOWS :

2. On 25.12.2015 the defendant borrowed an amount of Rs.1,00,000/- from the plaintiff for his family expenses and to discharge family debts and he executed the suit promissory note agreeing to repay the same with interest at 24 % per annum but later failed to repay the same inspite of several demands made by the plaintiff personally and through mediators and issuance of legal notice,dt.2.3.2018. Hence, the suit.

2

3.Refuting the averments, the defendant filed his written statement denying the plaint averments and contended that there is no creditor and debtor relationship between the plaintiff and the defendant. The defendant never borrowed amount from the plaintiff at anytime. The defendant after receiving the registered legal notice, approached the plaintiff and questioned him about issuance of the registered notice to him. The plaintiff represented that he did not got issued the legal notice, but it was got issued by his friend

B.N.V.Prakash in his name who is working as Driver in A.P.S.R.T.C, Amalapuram Depot and that he would not proceed as the defendant not owed anything to the plaintiff and that the defendant need not take it as serious. So, the defendant did not got issue any reply to the said registered notice.

3.1). It is further submitted that the said B.N.V.Prakash is doing money lending business. The defendant who was in badly need of money borrowed an amount of

Rs.50,000/- from said B.N.V.Prakash with an understanding to repay the same with monthly interest of Rs.4/- per hundred. He before lending amount demanded the defendant to subscribe his signatures on 3 blank printed promissory notes affixed with revenue stamps. The defendant subscribed his signatures on 3 blank printed promissory notes as there is no alternative for him. This happened in the month of January, 2015. The defendant used to pay interest regularly as agreed upon and also paid part payments towards principal amount. The defendant in the month of January, 2018 paid balance

principal amount with interest to said B.N.V.Prakash who agreed to hand over the above

stated blank promissory notes subsequently, as they were kept somewhere.

3.2). It is further submitted that in the last week of January, 2018 the defendant approached said B.N.V.Prakash and demanded him to hand over the blank printed promissory notes. Then he gave evasive answers stating that still some amount has to be paid to him, then only he would return the promissory notes. The defendant questioned his illegal demand for which he grow grudge against defendant. Then he got issued

Registered Notice, dt.02-03-2018 in name of the plaintiff with false allegations. The defendant also placed the matter before elders in which the said B.N.V.Prakash agreed to return the blank promissory notes. So, the defendant did not issue reply to the registered notice. Taking advantage of non-issuing of registered notice and taking advantage of blank printed promissory notes containing the signatures of the defendant the plaintiff and said

B.N.V.Prakash colluded together fabricated the suit pronote and filed the suit with false and untenable allegations. There is no cause of action for the plaintiff to file the suit. The 3 alleged cause of action is not true and correct. Hence, prayed to dismiss the suit with costs.

4.Basing on the above pleadings my learned predecessor in office settled the following issues for trial:

1) Whether the suit promissory note is true, valid and binding on defendant?

2) Whether the plaintiff is entitled for the suit promissory note amount as claimed for?

3) To what relief? 5.During trial, the plaintiff got examined himself as PW.1 and got marked

Exs.A1 to A3 and got examined 2nd attestor of Ex.A1 as PW.2. The defendant failed to adduce his evidence inspite of ample opportunity given to him. Ex.A1 is suit promissory note, dt.25.12.2015 for an amount of Rs.1,00,000/- executed by the defendant in favour of the plaintiff. Ex.A2 is the office copy registered legal notice,dt.2.3.2018. Ex.A3 is acknowledgment ft.10.3.2018.

6.On the aforementioned evidential backdrop, it is the larger contention of the learned counsel for the Plaintiff, Sri. P. V. Ramana Murthy that when defendant was struggling with finance, P.W.1 extended his helping hand by parting with the amount covered under Ex.A.1 in order to bail him out from the financial exigencies, however the defendant has no amount of goodness and made PW.1 to land in litigation. The testimonial assertions of PW.1 and PW.2 are attempted hard to be assailed, however, nothing infirm is elicited in the cross-examination so as to doubt the integrity of Ex.A1. Eventhough the defendant took the contention of the fabrication and forgery, he did not take any steps to produce any evidence to prove the said fact. The defendant also did not get into witness box nor offered any cogent and convincing reason for not entering into the witness box.

Therefore, the suit liability has to be fastened against the defendant.

7.No arguments are advanced on behalf of the defendant.

8. In order to appreciate the debatable issues, now at this juncture, this Court is obliged to advert to the material forth came from the testimony of PW.1 and PW.2 and recitals of Ex.A1 to Ex.A3.

ISSUE Nos.1 & 2:-

9. Now, this Court is setting forth the scope of controversy under different 4 heads which are stated below.

Whether the plaintiff is able to prove that the defendant borrowed

Rs.1,00,000/- from him in the presence of scribe and attestors ?

10.PW.1 during his cross-examination categorically stated that he lent

Rs.1,00,000/- at his house in the presence of his brother Srinivas and Birisetti Naga

Venkata Prakash. One Birrisetti Naga Venkata Prakash is his co-brother-in-law and he is working as R.T.C., employee, he asked his brother to lend money to the defendant on that his brother by name Dangeti Srinivas asked him to lend money to the defendant. After 10 days he lent money to the defendant. He denied the suggestion that the defendant never borrowed Rs.1,00,000/- from him on 25.12.2015 and did not execute any promissory note in his favour. It was suggested to PW.1 that the said B. N. V. Prakash obtained empty promissory note and subsequently disputes arose between him and the defendant and taking advantage of the said promissory note he got filed the same in the name of PW.1.

11.To prove the case of the plaintiff, he got examined the 2nd attestor of Ex.A1

Dangati Srinivas as PW.2. He supported the case of PW.1 on all aspects. During his cross- examination he stated that on the request of B.N.V.Prakash to lend money to the defendant, he requested the plaintiff to lend money to the defendant. He, B.N.V.Prakash, the scribe Prudhvi Srinivas were present at the time of the transaction. Nothing was elicited from his cross-examination in favour of the defendant except suggesting that there were disputes between the defendant and B.N.V.Prakash.

12.The contention of the defendant is that PW.1 and B. N. V. Prakash are co- brothers and the said Prakash obtained empty promissory note and subsequently, created the same as promissory note and filed the present suit through PW.1. After receiving of notice from PW.1, the defendant approached PW.1 and questioned him about issuance of legal notice, on that he gave assurance to the defendant that he will not file any case against him. The suit promissory note is not supported by consideration. If really the contention of the defendant that the said B.N.V.Prakash obtained a blank promissory note from him and subsequently created the same as Ex.A1 and filed the present suit through

PW.1, he would have taken a suitable legal action against the said B.N.V.Prakash. It is pertinent to mention that the defendant never stated that what made him to issue an empty promissory note to the said Prakash when there are no money dealings between him and the said Prakash. It is further pertinent to mention that the defendant never disputed the 5 signature and never stated that he does not know PW.1. Further, to prove his contentions raised in his written statement, he did not enter into the witness box.

13.From the evidence of PW.1 and PW.2 who is attestor of Ex.A1, it is clear that

PW.1 paid Rs.1,00,000/- to the defendant and defendant executed Ex.A1 in his favour. By examining himself and by examining one of the attestors of Ex.A1 as PW.2 and by exhibiting Ex.A1 promissory note, PW.1 proved the passing of consideration of

Rs.1,00,000/- to the defendant.

Whether the defendant proved that the suit promissory note

is fabricated and forged document ?

14. No serious challenge is laid down in the cross-examination with respect to the signature of the defendant on Ex.A.1. In such a case, the presumption contemplated under section 118 of Negotiable Instruments Act operates in favour of the plaintiff. The presumption contemplated under section 118 of Negotiable Instruments Act is one of the

Law which obliges the Court to presume, interalia that the negotiable instrument was made for consideration and the defendant need not adduce evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by consideration, however, he has to establish his case by preponderance of probabilities. It is the defendant who knows how to prove his case. However, he failed to substantiate his defence by producing some bankable proof. The defendant failed to appear before this

Court and failed to produce any evidence to prove his contention of the fabrication and forgery.

15.For the reasons as mentioned above, this Court is of the unhesitant opinion,

PW.1 succinctly proved Ex.A1 promissory note as per the evidential standards i.e. proof beyond reasonable doubt.

16. From the above discussion, this Court is of the opinion that the defendant executed Ex.A.1 promissory note in favour of PW.1 and the defendant is making hectic efforts to avoid the debt. In view of the above reasons Issue Nos.1 and 2 are answered in favor of plaintiff and against the defendant.

ISSUE No.3 :

17.In view of the findings on issue Nos.1 and 2, the suit deserves to be decreed with costs. Therefore, this issue is answered accordingly in favour of the plaintiff.

6

18. In the result, the suit is decreed with costs in favour of the plaintiff directing the defendant to pay a sum of Rs.1,70,600/- (Rupees One Lakh, Seventy Thousands and

Six Hundred only) to the plaintiff with subsequent interest at 12% per annum from the date of suit till the date of decree and thereafter at 6% per annum from the date of decree till the date of realization on principal sum of Rs.1,00,000/- (Rupees One Lakh only).

Typed to my dictation by the Stenographer Grade III, corrected and

pronounced by me in open Court on this the 18thday of March, 2025.

Sd/-Md.Rahamtulla

Civil Judge (Junior Division)-Cum-

Judicial Magistrate Of I Class,

Mummidivaram (FAC) Additional Civil Judge, (Junior Division) Cum

Additional -Judicial Magistrate of I Class

First Class, Amalapuram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:

P.W.1/27.12.2022 : Dangeti Radha Krishna P.W.2/27.12.2022 : Dangati Srinivas

FOR DEFENDANT: None

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A1 : Suit promissory note, dt.25.12.2015 for an amount of Rs.1,00,000/- executed by the defendant in favour of the plaintiff. Ex.A2 : Office copy registered legal notice,dt.2.3.2018. Ex.A3 : Acknowledgment, dt.10.3.2018.

FOR DEFENDANT: Nil

Sd/-Md.Rahamtulla

C.J., (J.D.,) Cum J.M.F.C., MMD (FAC) A.C.J., (J.D.,) Cum A.J.M.F.C., AMP 7

Plaint presented on : 5.12.2018 Plaint registered on : 30.1.2019

:: IN THE COURT OF ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-

ADDITIONAL JUDICIAL MAGISTRATE OF THE I CLASS, AMALAPURAM

Present:- SRI MOHAMMED RAHAMTULLA

Civil Judge (Junior Division) Cum Judicial Magistrate of I Class, Mummidivaram.

(FAC) Additional Civil Judge (Junior Division) Cum Additional Judicial Magistrate of I Class, Amalapuram.

Tuesday, this the Eighteenth (18th Tuesday, this the Eighteenth (18th) day of March, 2025 ) day of March, 2025 ORIGINAL SUIT No.26/2019 ORIGINAL SUIT No.26/2019 Between:

Dangati Radha Krishna, S/o. Narasimha Murty, Age.55 years, D.No.7-63, Pullatikurru Village, Ambajipeta Mandal, East Godavari District, Amalapuram J.C.J.C.… PLAINTIFF

And

Vasamsetty Ramalingeswara Rao, S/o.China Subrahmanyam, Age.45 years, Employee, D.No.1-119, Lanka Thota, Pullatikurru Village, Ambajipeta Mandal, East Godavari District, Amalapuram J.C.J.C. Presently working as Security in A.P.S.R.T.C., Ramachandra Puram Village and Mandal, East Godavari District, Ramachandrapuram J.C.J.C.… DEFENDANT

The plaintiff filed this suit for recovery of a sum of Rs.1,70,600/- due under the foot of promissory note, dt.25.12.2015 said to have been executed by the defendant for Rs.1,00,000/- in favour of the plaintiff with subsequent interest @ 24% p.a. and costs thereon. Cause of action: Cause of action for the suit arose on arose on 25.12.2015 when the defendant borrowed Rs.1,00,000/- from the Plaintiff and executed the suit Promissory Note and on when the plaintiff demanded the defendant personally and through mediators and through legal notice on when the plaintiff demanded the defendant and at Pullatikurru Village of Amalapuram J.C.J.C., where the suit transaction has taken place and where the plaintiff residing which are within the jurisdiction of this Honourable Court. Value of the suit: Rs.1,00,000/-

Principal amount borrowed under the promissory

note dt:25.12.2015 Rs. 70,600/- Add: Interest from 25.12.2015 to 4.12.2018 at 24% p.a., on Rs.1,00,000/-

Total Rs.1,70,600/- 8

A Court fee of Rs.4,200/- is paid there on u/Sec.20 r/w Sch.I Art.I (c) of A.C.F. and S.V. Act, 1956.

This suit has came before me for final hearing on 6.3.2025 in the presence of Sri. P. V. Ramana Murhty, Advocate for plaintiff and of Sri. T. V. Prasada Rao, Advocate for the defendant and upon hearing both side and having stood over for consideration to this day, this Court made the following this court DOTH ORDER AND DECREE as follows :

:: DECREE ::

1.that the suit be and the same is hereby decreed with costs; 2. that the defendant be and is hereby directed to pay to the plaintiff an amount of Rs.1,70,600/- with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and thereafter at the rate of 6% per annum from the date of decree till the date of realization, on the principal amount of Rs.1,00,000/- and ;

3.that the defendant do also pay to the plaintiffs a sum of Rs.4,242/- towards institutional costs (no costs memo filed) of suit.

Given under my hand and seal of this Court, this the 18 th day of March, 2025.

Civil Judge (Junior Division)-Cum-

Judicial Magistrate Of I Class,

Mummidivaram

(FAC) Additional Civil Judge, (Junior Division) Cum

Additional -Judicial Magistrate of I Class

First Class, Amalapuram.

MEMO OF COSTS

FOR PLAINTIFF Rs. Ps. FOR DEFENDANT

(INSTITUTIONAL COSTS)

Vakalat fee2-00

Plaint fee 4,200-00

Process fee40-00(No cost Memo filed)

Total 4,242-00

Sd/-Md.Rahamtulla

C.J., (J.D.,) Cum J.M.F.C., MMD (FAC) A.C.J., (J.D.,) Cum A.J.M.F.C., AMP.

Note : “The parties should apply as soon as possible for the return of all exhibits which they may wish to preserve, as the record will be liable to be destroyed after 3 years from this date.”

1

:: IN THE COURT OF ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-

ADDITIONAL JUDICIAL MAGISTRATE OF THE I CLASS, AMALAPURAM

Present:- SRI MOHAMMED RAHAMTULLA

Civil Judge (Junior Division) Cum Judicial Magistrate of I Class, Mummidivaram.

(FAC) Additional Civil Judge (Junior Division) Cum Additional Judicial Magistrate of I Class, Amalapuram.

Tuesday, this the Eighteenth (18th Tuesday, this the Eighteenth (18th) day of March, 2025 ) day of March, 2025 ORIGINAL SUIT No.26/2019 ORIGINAL SUIT No.26/2019

Between:

Dangati Radha Krishna, S/o. Narasimha Murty, Age.55 years, D.No.7-63, Pullatikurru Village, Ambajipeta Mandal, East Godavari District, Amalapuram J.C.J.C.… PLAINTIFF

And

Vasamsetty Ramalingeswara Rao, S/o.China Subrahmanyam, Age.45 years, Employee, D.No.1-119, Lanka Thota, Pullatikurru Village, Ambajipeta Mandal, East Godavari District, Amalapuram J.C.J.C. Presently working as Security in A.P.S.R.T.C., Ramachandra Puram Village and Mandal, East Godavari District, Ramachandrapuram J.C.J.C.… DEFENDANT

This suit has came before me for final hearing on 6.3.2025 in the presence of Sri. P. V. Ramana Murhty, Advocate for plaintiff and of Sri. T. V. Prasada Rao, Advocate for the defendant and upon hearing both sides, and on perusing the material placed on record, and the matter having stood over till this date for consideration, this Court delivered the following:

: J U D G M E N T :

1.The plaintiff filed this suit for recovery of a sum of Rs.1,70,600/- due under the foot of promissory note, dt.25.12.2015 said to have been executed by the defendant for Rs.1,00,000/- in favour of the plaintiff with subsequent interest @ 24% p.a. and costs thereon.

THE BRIEF AVERMENTS OF THE PLAINT ARE IS AS FOLLOWS :

2. On 25.12.2015 the defendant borrowed an amount of Rs.1,00,000/- from the plaintiff for his family expenses and to discharge family debts and he executed the suit promissory note agreeing to repay the same with interest at 24 % per annum but later failed to repay the same inspite of several demands made by the plaintiff personally and through mediators and issuance of legal notice,dt.2.3.2018. Hence, the suit.

2

3.Refuting the averments, the defendant filed his written statement denying the plaint averments and contended that there is no creditor and debtor relationship between the plaintiff and the defendant. The defendant never borrowed amount from the plaintiff at anytime. The defendant after receiving the registered legal notice, approached the plaintiff and questioned him about issuance of the registered notice to him. The plaintiff represented that he did not got issued the legal notice, but it was got issued by his friend

B.N.V.Prakash in his name who is working as Driver in A.P.S.R.T.C, Amalapuram Depot and that he would not proceed as the defendant not owed anything to the plaintiff and that the defendant need not take it as serious. So, the defendant did not got issue any reply to the said registered notice.

3.1). It is further submitted that the said B.N.V.Prakash is doing money lending business. The defendant who was in badly need of money borrowed an amount of

Rs.50,000/- from said B.N.V.Prakash with an understanding to repay the same with monthly interest of Rs.4/- per hundred. He before lending amount demanded the defendant to subscribe his signatures on 3 blank printed promissory notes affixed with revenue stamps. The defendant subscribed his signatures on 3 blank printed promissory notes as there is no alternative for him. This happened in the month of January, 2015. The defendant used to pay interest regularly as agreed upon and also paid part payments towards principal amount. The defendant in the month of January, 2018 paid balance

principal amount with interest to said B.N.V.Prakash who agreed to hand over the above

stated blank promissory notes subsequently, as they were kept somewhere.

3.2). It is further submitted that in the last week of January, 2018 the defendant approached said B.N.V.Prakash and demanded him to hand over the blank printed promissory notes. Then he gave evasive answers stating that still some amount has to be paid to him, then only he would return the promissory notes. The defendant questioned his illegal demand for which he grow grudge against defendant. Then he got issued

Registered Notice, dt.02-03-2018 in name of the plaintiff with false allegations. The defendant also placed the matter before elders in which the said B.N.V.Prakash agreed to return the blank promissory notes. So, the defendant did not issue reply to the registered notice. Taking advantage of non-issuing of registered notice and taking advantage of blank printed promissory notes containing the signatures of the defendant the plaintiff and said

B.N.V.Prakash colluded together fabricated the suit pronote and filed the suit with false and untenable allegations. There is no cause of action for the plaintiff to file the suit. The 3 alleged cause of action is not true and correct. Hence, prayed to dismiss the suit with costs.

4.Basing on the above pleadings my learned predecessor in office settled the following issues for trial:

1) Whether the suit promissory note is true, valid and binding on defendant?

2) Whether the plaintiff is entitled for the suit promissory note amount as claimed for?

3) To what relief? 5.During trial, the plaintiff got examined himself as PW.1 and got marked

Exs.A1 to A3 and got examined 2nd attestor of Ex.A1 as PW.2. The defendant failed to adduce his evidence inspite of ample opportunity given to him. Ex.A1 is suit promissory note, dt.25.12.2015 for an amount of Rs.1,00,000/- executed by the defendant in favour of the plaintiff. Ex.A2 is the office copy registered legal notice,dt.2.3.2018. Ex.A3 is acknowledgment ft.10.3.2018.

6.On the aforementioned evidential backdrop, it is the larger contention of the learned counsel for the Plaintiff, Sri. P. V. Ramana Murthy that when defendant was struggling with finance, P.W.1 extended his helping hand by parting with the amount covered under Ex.A.1 in order to bail him out from the financial exigencies, however the defendant has no amount of goodness and made PW.1 to land in litigation. The testimonial assertions of PW.1 and PW.2 are attempted hard to be assailed, however, nothing infirm is elicited in the cross-examination so as to doubt the integrity of Ex.A1. Eventhough the defendant took the contention of the fabrication and forgery, he did not take any steps to produce any evidence to prove the said fact. The defendant also did not get into witness box nor offered any cogent and convincing reason for not entering into the witness box.

Therefore, the suit liability has to be fastened against the defendant.

7.No arguments are advanced on behalf of the defendant.

8. In order to appreciate the debatable issues, now at this juncture, this Court is obliged to advert to the material forth came from the testimony of PW.1 and PW.2 and recitals of Ex.A1 to Ex.A3.

ISSUE Nos.1 & 2:-

9. Now, this Court is setting forth the scope of controversy under different 4 heads which are stated below.

Whether the plaintiff is able to prove that the defendant borrowed

Rs.1,00,000/- from him in the presence of scribe and attestors ?

10.PW.1 during his cross-examination categorically stated that he lent

Rs.1,00,000/- at his house in the presence of his brother Srinivas and Birisetti Naga

Venkata Prakash. One Birrisetti Naga Venkata Prakash is his co-brother-in-law and he is working as R.T.C., employee, he asked his brother to lend money to the defendant on that his brother by name Dangeti Srinivas asked him to lend money to the defendant. After 10 days he lent money to the defendant. He denied the suggestion that the defendant never borrowed Rs.1,00,000/- from him on 25.12.2015 and did not execute any promissory note in his favour. It was suggested to PW.1 that the said B. N. V. Prakash obtained empty promissory note and subsequently disputes arose between him and the defendant and taking advantage of the said promissory note he got filed the same in the name of PW.1.

11.To prove the case of the plaintiff, he got examined the 2nd attestor of Ex.A1

Dangati Srinivas as PW.2. He supported the case of PW.1 on all aspects. During his cross- examination he stated that on the request of B.N.V.Prakash to lend money to the defendant, he requested the plaintiff to lend money to the defendant. He, B.N.V.Prakash, the scribe Prudhvi Srinivas were present at the time of the transaction. Nothing was elicited from his cross-examination in favour of the defendant except suggesting that there were disputes between the defendant and B.N.V.Prakash.

12.The contention of the defendant is that PW.1 and B. N. V. Prakash are co- brothers and the said Prakash obtained empty promissory note and subsequently, created the same as promissory note and filed the present suit through PW.1. After receiving of notice from PW.1, the defendant approached PW.1 and questioned him about issuance of legal notice, on that he gave assurance to the defendant that he will not file any case against him. The suit promissory note is not supported by consideration. If really the contention of the defendant that the said B.N.V.Prakash obtained a blank promissory note from him and subsequently created the same as Ex.A1 and filed the present suit through

PW.1, he would have taken a suitable legal action against the said B.N.V.Prakash. It is pertinent to mention that the defendant never stated that what made him to issue an empty promissory note to the said Prakash when there are no money dealings between him and the said Prakash. It is further pertinent to mention that the defendant never disputed the 5 signature and never stated that he does not know PW.1. Further, to prove his contentions raised in his written statement, he did not enter into the witness box.

13.From the evidence of PW.1 and PW.2 who is attestor of Ex.A1, it is clear that

PW.1 paid Rs.1,00,000/- to the defendant and defendant executed Ex.A1 in his favour. By examining himself and by examining one of the attestors of Ex.A1 as PW.2 and by exhibiting Ex.A1 promissory note, PW.1 proved the passing of consideration of

Rs.1,00,000/- to the defendant.

Whether the defendant proved that the suit promissory note

is fabricated and forged document ?

14. No serious challenge is laid down in the cross-examination with respect to the signature of the defendant on Ex.A.1. In such a case, the presumption contemplated under section 118 of Negotiable Instruments Act operates in favour of the plaintiff. The presumption contemplated under section 118 of Negotiable Instruments Act is one of the

Law which obliges the Court to presume, interalia that the negotiable instrument was made for consideration and the defendant need not adduce evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by consideration, however, he has to establish his case by preponderance of probabilities. It is the defendant who knows how to prove his case. However, he failed to substantiate his defence by producing some bankable proof. The defendant failed to appear before this

Court and failed to produce any evidence to prove his contention of the fabrication and forgery.

15.For the reasons as mentioned above, this Court is of the unhesitant opinion,

PW.1 succinctly proved Ex.A1 promissory note as per the evidential standards i.e. proof beyond reasonable doubt.

16. From the above discussion, this Court is of the opinion that the defendant executed Ex.A.1 promissory note in favour of PW.1 and the defendant is making hectic efforts to avoid the debt. In view of the above reasons Issue Nos.1 and 2 are answered in favor of plaintiff and against the defendant.

ISSUE No.3 :

17.In view of the findings on issue Nos.1 and 2, the suit deserves to be decreed with costs. Therefore, this issue is answered accordingly in favour of the plaintiff.

6

18. In the result, the suit is decreed with costs in favour of the plaintiff directing the defendant to pay a sum of Rs.1,70,600/- (Rupees One Lakh, Seventy Thousands and

Six Hundred only) to the plaintiff with subsequent interest at 12% per annum from the date of suit till the date of decree and thereafter at 6% per annum from the date of decree till the date of realization on principal sum of Rs.1,00,000/- (Rupees One Lakh only).

Typed to my dictation by the Stenographer Grade III, corrected and

pronounced by me in open Court on this the 18thday of March, 2025.

Sd/-Md.Rahamtulla

Civil Judge (Junior Division)-Cum-

Judicial Magistrate Of I Class,

Mummidivaram (FAC) Additional Civil Judge, (Junior Division) Cum

Additional -Judicial Magistrate of I Class

First Class, Amalapuram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:

P.W.1/27.12.2022 : Dangeti Radha Krishna P.W.2/27.12.2022 : Dangati Srinivas

FOR DEFENDANT: None

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A1 : Suit promissory note, dt.25.12.2015 for an amount of Rs.1,00,000/- executed by the defendant in favour of the plaintiff. Ex.A2 : Office copy registered legal notice,dt.2.3.2018. Ex.A3 : Acknowledgment, dt.10.3.2018.

FOR DEFENDANT: Nil

Sd/-Md.Rahamtulla

C.J., (J.D.,) Cum J.M.F.C., MMD (FAC) A.C.J., (J.D.,) Cum A.J.M.F.C., AMP 7

Plaint presented on : 5.12.2018 Plaint registered on : 30.1.2019

:: IN THE COURT OF ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-

ADDITIONAL JUDICIAL MAGISTRATE OF THE I CLASS, AMALAPURAM

Present:- SRI MOHAMMED RAHAMTULLA

Civil Judge (Junior Division) Cum Judicial Magistrate of I Class, Mummidivaram.

(FAC) Additional Civil Judge (Junior Division) Cum Additional Judicial Magistrate of I Class, Amalapuram.

Tuesday, this the Eighteenth (18th Tuesday, this the Eighteenth (18th) day of March, 2025 ) day of March, 2025 ORIGINAL SUIT No.26/2019 ORIGINAL SUIT No.26/2019 Between:

Dangati Radha Krishna, S/o. Narasimha Murty, Age.55 years, D.No.7-63, Pullatikurru Village, Ambajipeta Mandal, East Godavari District, Amalapuram J.C.J.C.… PLAINTIFF

And

Vasamsetty Ramalingeswara Rao, S/o.China Subrahmanyam, Age.45 years, Employee, D.No.1-119, Lanka Thota, Pullatikurru Village, Ambajipeta Mandal, East Godavari District, Amalapuram J.C.J.C. Presently working as Security in A.P.S.R.T.C., Ramachandra Puram Village and Mandal, East Godavari District, Ramachandrapuram J.C.J.C.… DEFENDANT

The plaintiff filed this suit for recovery of a sum of Rs.1,70,600/- due under the foot of promissory note, dt.25.12.2015 said to have been executed by the defendant for Rs.1,00,000/- in favour of the plaintiff with subsequent interest @ 24% p.a. and costs thereon. Cause of action: Cause of action for the suit arose on arose on 25.12.2015 when the defendant borrowed Rs.1,00,000/- from the Plaintiff and executed the suit Promissory Note and on when the plaintiff demanded the defendant personally and through mediators and through legal notice on when the plaintiff demanded the defendant and at Pullatikurru Village of Amalapuram J.C.J.C., where the suit transaction has taken place and where the plaintiff residing which are within the jurisdiction of this Honourable Court. Value of the suit: Rs.1,00,000/-

Principal amount borrowed under the promissory

note dt:25.12.2015 Rs. 70,600/- Add: Interest from 25.12.2015 to 4.12.2018 at 24% p.a., on Rs.1,00,000/-

Total Rs.1,70,600/- 8

A Court fee of Rs.4,200/- is paid there on u/Sec.20 r/w Sch.I Art.I (c) of A.C.F. and S.V. Act, 1956.

This suit has came before me for final hearing on 6.3.2025 in the presence of Sri. P. V. Ramana Murhty, Advocate for plaintiff and of Sri. T. V. Prasada Rao, Advocate for the defendant and upon hearing both side and having stood over for consideration to this day, this Court made the following this court DOTH ORDER AND DECREE as follows :

:: DECREE ::

1.that the suit be and the same is hereby decreed with costs; 2. that the defendant be and is hereby directed to pay to the plaintiff an amount of Rs.1,70,600/- with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and thereafter at the rate of 6% per annum from the date of decree till the date of realization, on the principal amount of Rs.1,00,000/- and ;

3.that the defendant do also pay to the plaintiffs a sum of Rs.4,242/- towards institutional costs (no costs memo filed) of suit.

Given under my hand and seal of this Court, this the 18 th day of March, 2025.

Civil Judge (Junior Division)-Cum-

Judicial Magistrate Of I Class,

Mummidivaram

(FAC) Additional Civil Judge, (Junior Division) Cum

Additional -Judicial Magistrate of I Class

First Class, Amalapuram.

MEMO OF COSTS

FOR PLAINTIFF Rs. Ps. FOR DEFENDANT

(INSTITUTIONAL COSTS)

Vakalat fee2-00

Plaint fee 4,200-00

Process fee40-00(No cost Memo filed)

Total 4,242-00

Sd/-Md.Rahamtulla

C.J., (J.D.,) Cum J.M.F.C., MMD (FAC) A.C.J., (J.D.,) Cum A.J.M.F.C., AMP.

Note : “The parties should apply as soon as possible for the return of all exhibits which they may wish to preserve, as the record will be liable to be destroyed after 3 years from this date.”