Sri N.Ramesh Babu

C

IN THE COURT OF SPECIAL JUDGE FOR TRIAL OF CASES UNDER

SCs & STs (POA) ACT-CUM-

IV ADDL. DISTRICT & SESSIONS JUDGE, SRIKAKULAM.

Present: N.RAMESH BABU,

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

SCs & STs (POA) ACT-CUM-

IV ADDL. DISTRICT & SESSIONS JUDGE, SRIKAKULAM

FRIDAY, THIS THE 22 ND DAY OF JANUARY, 2021.

CRIMINAL APPEAL No.51/2018

From What Court the :Additional Assistant Sessions Judge, Appeal is preferredSrikakulam. 

Number of the case in that :S.C.No.38/2016 Court

Number of the Appeal:Crl.A.51/2018

Name and description of :Duvvu Upendra, S/o Appa Rao, aged the Appellant28 years, Hindu, Yadava by caste, R/at Kattera Veedhi, Srikakulam town and District.

 Name of the :1. Bukka Yugandhar, son of respondents/complainant:Narasimha Murthy, aged 28 years, Vadabalija by caste, R/at Mahalaxmi Nagar Colony, Srikakulam town and District. 

2. Ika Chinna, S/o late Appa Rao, aged 27 years, Padmasali by caste, R/at New Colony, Srikakulam town and District.

3. Mungi Chandra Bhushan, son of Sambamurthy, aged 27 years, Segidi by caste, R/at ChinnaMandalVeedhi, Srikakulam town and District. 

4. State of A.P. represented by the Public Prosecutor, Srikakulam.

The sentence and order :The accused Nos.1 to 3 are found not under which it was guilty for the offence punishable imposed in the lower Court.under sections 307, 324, 323 read with 34 of the Indian Penal Code and they are acquitted under section 235(1) of Cr.P.C., for the said offences. M.O.1 i.e., one iron Atlapulla shall be destroy after appeal time is over. The bail bonds of the accused Nos.1 to 3 shall stand cancelled after six months as per 2

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Section 437 of Cr.P.C.

Whether :DISMISSED: confirmed/modified or Reversed, if modified the In the result, the appeal is modificationdismissed confirming the judgment

dated 27.09.2017 in S.C.No.38/2016

passed by the learned Assistant

Sessions Judge, Srikakulam in all

respects. 

Date of presentation19.02.2018

Date of filing:01.11.2018

Notice issued by Court to :01.11.2018 appear Bail bonds if appellant has : ­­ been let out on bail Appellant ordered to :18.12.2018 appear Date of hearing:19.01.2021

Date of judgment:22.01.2021

This Criminal Appeal coming on 19.01.2021 for final hearing before me in the presence of Sri P.S.Gandhi, Advocate for the appellant/defacto complainant and of Sri G.Janardhana Rao, Advocate for Respondent Nos.1 to 3/accused Nos.1 to 3 and Additional Public Prosecutor for the State­ respondent No.4 and having heard both sides and having stood over till this day for consideration, this Court delivered the following:

J U D G M E N T

01. This Criminal Appeal has been filed by the appellant who is the defacto complainant in S.C.No.38/2016 against the respondents as per the proviso under section 372 of the Code of Criminal Procedure.

The respondent Nos.1 to 3 are the accused in that case and the 4th respondent­State has filed that case which was made over to the Court of the learned Additional Assistant Sessions Judge, Srikakulam for disposal according to law.

02 The Sub Inspector of Police, Srikakulam II Town Police Station has filed a charge sheet in Cr.No.21/2015 of Srikakulam II Town Police

Station for the offences under sections 307, 324 and 323 read with 34 of 3

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the Indian Penal Code against the respondent Nos.1 to3/accused. It was alleged against them that on 11.02.2015 around 10.00 P.M., they had taken tiffin at the tiffin cart of Mrs.Sadhu Eswaramma (P.W.3) situated on Arts College Road in Srikakulam but did not make payment for the tiffin and in spite of P.W.3 had asked for the same, the accused heckled her in that regard. So, Mr.Duvvu Upendra (P.W.1) had interfered and asked the accused to give money, but A.1 having caught hold of the shirt of P.W.1 had fisted on his face and A.2 and A.3 beat him with hands and kicked him with legs. A.1 took an iron pan stick from the tiffin cart and beat P.W.1 on the backside of the head with an intention to kill him.

Then, P.W.3, Mr.Rajana Ravi (P.W.4), Mr.Challaiboina Srinivasa Rao (P.W.5) and Mr.Gorusu Kishore (P.W.6) interfered and rescued P.W.1 from the hands of the accused. Subsequently P.W.1 was shifted to the

Government hospital, Srikakulam for treatment. Basing on the statement given by P.W.1 which was recorded by Mr.V.Govinda Rajulu (P.W.11) who worked as the Head Constable in Srikakulam II Town Police

Station, a case in Cr.No.21/2015 for the offences under sections 324 and 323 read with 34 of the Indian Penal Code was registered and investigated. P.W.1 was shifted to a hospital in Visakhapatnam for better treatment. During the investigation of the case, Mr.D.Mohana Rao (P.W.12) who is the then Inspector of Police, Srikakulam II Town Police

Station has added the section of law under section 307 of the Indian

Penal Code. On completion of the investigation, a charge sheet was filed against the accused with those allegations. 

03.Considering the contents of the charge sheet, the learned

Additional Judicial Magistrate of the I Class, Srikakulam took the case

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on file in P.R.C.No.12/2015 for the offences under sections 307 and 324 read with 34 of the Indian Penal Code and by following the due procedure has committed the case to the learned Principal Sessions

Judge, Srikakulam who in turn made over the case to the Court of

learned Additional Assistant Sessions Judge, Srikakulam in

S.C.No.38/2016.

04.The learned Additional Assistant Sessions Judge, Srikakulam on hearing both sides has framed the charges under sections 307 and 324 of the Indian Penal Code against A.1 and under section 323 read with 34 of the Indian Penal Code against A.1 toA.3, read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried. During the course of trial, the prosecution side has got examined 12 witnesses as P.W.1 to P.W.12 and got marked Ex.P.1 to

P.10 documents on its behalf. No oral or documentary evidence was adduced on behalf of the accused. The learned Additional Assistant

Sessions Judge, Srikakulam having heard both sides and appreciated

the evidence on record has pronounced the judgment dated 27.09.2017 finding the accused not guilty of any of the offences and acquitted them under section 235 (1) of Code of Criminal Procedure. Challenging the same, this criminal appeal has been filed.

05.In the grounds of appeal, the appellant contends that the judgment of the trial court is contrary to law, weight of evidence and probabilities of the case and that it has not looked into the evidence of

P.Ws.4 to 6 who corroborated the facts stated by P.W.1 and that P.W.2 and P.W.3 having got influenced by the local politicians had turned hostile and not cooperated with the case of prosecution even though 5

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P.Ws.4 to P.W.6 have supported the case of prosecution and that the evidence of P.W.1 is duly corroborated by the wound certificate under

Ex.P.3 and the document under Ex.P.8 regarding the injuries sustained by him and that the trial court having kept away the evidence on record had acquitted the accused in a lenient manner even though the trial court ought to have convicted the accused. 

06.I have heard the learned counsel for the appellant and the learned counsel for the respondent Nos.1 to 3 and the leaned Public

Prosecutor for the 4th respondent­State. I have perused the entire case record and evidence on record both oral and documentary. 

07.Now, the points for determination are as follows:

(1) Whether the prosecution side is able to establish that A.1 had attempted to kill P.W.1 punishable under section 307 of the Indian Penal Code beyond reasonable doubt?

(2) Whether the prosecution side is able to establish that A.1 had voluntarily caused grievous hurt with a dangerous weapon or with a weapon which is likely to cause death of P.W.1 punishable under section 324 of the Indian Penal Code beyond reasonable doubt?

(3) Whether the prosecution side is able to establish that A.1 to A.3 had voluntarily caused hurt to P.W.1 with a common intention of causing hurt punishable under section 323 read with 34 of the Indian Penal Code beyond reasonable doubt?

(4) Whether the judgment passed by the learned Additional Assistant Sessions Judge, Srikakulam dated 27.09.2017 in S.C.No.38/2016 is correct according to law and basing on the evidence on record?

08.POINT Nos.1 to 3:

These three points require common discussion to avoid repetition of the facts and circumstances of the case and the evidence in the discussion. So, these three points are taken together for discussion.

Among the witnesses examined by the prosecution side, P.W.1 is the defacto complainant and injured person. P.W.2 is the father of P.W.1.

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P.Ws.3 to P.W.6 are said to be the direct witnesses to the alleged occurrence of the offence. P.Ws.8 to P.W.10 are the Medical Officers and

P.W.11 and P.W.12 are the investigation officers. The evidence of P.W.1 is that on the date of incident around 10.00 P.M., he and

Mr.Ch.Srinivasa Rao (P.W.5) were taking tiffin, all the accused and another person who were in drunken state did not make payment of money to P.W.3 after taking tiffin and when P.W.3 asked the accused to pay money for the tiffin, he interfered and asked A.2 to pay money to

P.W.3 and when A.2 stated that he would pay money, A.1 questioned

P.W.1 as to who, he was to ask A.2 for payment of money and A.1 pushed P.W.1 and beat him with Atlapulla which is made of iron on the backside of his headand he sustained a bleeding injury and then A.2 and A.3 and another person beat him with hands and kicked him with legs as they like and threatened to kill him and he sustained injuries on his left leg, left hand, left cheek and that his neck was broken. His further evidence is that the accused dragged him up to Axis Bank and there also beat him and he lost conscious and then thinking that he died, the accused went away by leaving him there. One or one and half hour later, he regained conscious and in the meanwhile P.W.6 and

Mr.Ravikumar who is the brother of P.W.1 came there and took him to the house of Mr.Ravi Kumar. On the next day morning his father (P.W.2), brother and P.W.6 took him to RIMS Hospital and subsequently his statement under Ex.P.1 was recorded by police. During the course of his cross­examination, he admitted that A.2 is his friend and classmate and that P.W.5 is his best friend and that he used to act as a cleaner of the van of P.W.6 and that the doctor who gave treatment to him had asked 7

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him as to how he sustained the injuries and that the doctor had recorded the same. He admitted that on the date of his joining in RIMS Hospital,

Srikakulam A.2 came to him for curtesy sake. He mentioned the name of

A.2 in Ex.P.1 because he knows the name and he did not mention the names of other persons who beat him because he does not know their names. He denied of stating to police as in Ex.D.1 which was marked as part in his Section 161 of Cr.P.C., statement which reads that soon after the incident P.W.5, P.W.6 and the brother of P.W.1 took him in an auto from the scene of offence and admitted in RIMS Government Hospital,

Srikakulam.

09. P.W.2 is admittedly the father of P.W.1 and even according to the case of prosecution, he is not a direct witness to the alleged occurrence of the offence. Having come to know about the injury sustained by P.W.1 through his elder son namely Mr.Ravi, P.W.2 and

P.W.6 and said Mr.Ravi took P.W.1 to RIMS Hospital, Srikakulam on the next date of the incident from the house of Mr.Ravi. Acording to P.W.2,

P.W.1 had informed that four persons beat P.W.1 at a tiffin cart in connection with money dispute, with Atlakarra on the back and neck of

P.W.1. In his cross=examination P.W.2 has admitted that on the date of alleged incident, he was in Thotapalem on the occasion of his house warming ceremony which was celebrated on 11.02.2015 at about 11.00 or 11.30 P.M., So even according to P.W.2, he did not witness the alleged occurrence of the offence. He did not state anything against the accused.

He has very fairly admitted that he has no acquaintance with the accused and he does not know them. So, the evidence of P.W.2 is only useful to consider that P.W.1 sustained injuries and that on 12.02.2015 8

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P.W.2, P.W.6 and the elder son of P.W.2 namely Mr.Ravi had shifted

P.W.1 to RIMS Hospital, Srikakulam from the house of Mr.Ravi.

10. P.W.3 and P.W.4 are said to be the direct witnesses to the occurrence of the offence. In fact the case of the prosecution and even the evidence of P.W.1, P.W.5 and P.W.6 is that the alleged incident in this case was taken place at the tiffin cart of P.W.3 when the accused did not make payment of money after taking tiffin to P.W.3. But P.W.3 and

P.W.4 have categorically deposed that no galata was taken place at the tiffin cart of P.W.3 at any point of time. According to them, they do not know either the accused or the witnesses i.e., P.W.1 and P.W.5. Even though the learned Public Prosecutor has cross­examined P.W.3 and

P.W.4 but nothing was elicited from their evidence in support the case of the prosecution. Only some suggestions were put regarding the occurrence of the alleged offence to P.W.3 and P.W.4 but they have denied all those suggestions. So, there is no evidence at all from P.W.3 and P.W.4 in support of the case of the prosecution. If really such an incident as alleged in this case was taken place certainly P.W.3 at least would have supported the case of prosecution because P.W.1 interfered in the alleged galata for the sake of P.W.3 and to see that the amount is paid by the accused to P.W.3 for the tiffin taken by them from P.W.3.

The contention of the learned counsel for the appellants regarding the evidence of P.W.3 and P.W.4 is that due to political influence P.W.3 and

P.W.4 turned hostile and not supported the case of prosecution. But this contention of the learned counsel for the appellants cannot be accepted because the court has to see as to what is the evidence deposed by P.W.3 and P.W.4 but not the reason for their not supporting the case of 9

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prosecution until it is proved in the evidence. There is no iota of evidence to consider and believe that P.W.3 and P.W.4 did not support the case of prosecution only because of the political influence. Unless there is some evidence in that regard, the bald contention of the learned counsel for the appellants cannot be accepted. 

11. Coming to the evidence of P.W.5 even according to P.W.1 he is the best friend of P.W.1. Even though P.W.5 in his evidence has deposed about the incident and the accused beating P.W.1 and causing injuries to him, in addition to the same, he further deposed that the accused came over him and A.3 beat him on his cheek with hand and that due to fear, he ran away from the scene of offence and about half an hour later again he came to the scene of offence and noticed P.W.1 being present at hotel and that the accused beat P.W.1 erven at that hotel and when he (P.W.5) tried to rescue P.W.1 from the hands of the accused, he was beaten again by A.3 on his chest. Later he took P.W.1 to Day and

Night junction and made him to sit there and by securing an auto, he took P.W.1 to the house of brother of P.W.1 and thereafter he went away.

This further evidence of P.W.5 is nothing but an exaggerated and improved version because the same is neither found place in the statement under Ex.P.1 nor was deposed by P.W.1. According to P.W.5 the alleged incident was taken place at two places, one at the tiffin center of P.W.3 and the other at hotel. But P.W.1 has not deposed anything about any part of the incident being taken place at hotel. The evidence of

P.W.5 that he took P.W.1 in an auto to the house of the brother of P.W.1 is entirely inconsistent with the evidence of P.W.1 because according to

P.W.1 it was P.W.6 and Mr.Ravi Kumar who is the brother of P.W.1 who 10

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took him to the house of his brother. If really such an incident was taken place as deposed by P.W.5, certainly P.W.1 would have firstly mentioned about the same in the report under Ex.P.1 and also deposed the same before the court. The evidence of P.W.1 regarding P.W.5 is that

P.W.5 also came to the tiffin cart of P.W.3. P.W.1 has not deposed any other thing about the participation of P.W.5 in the alleged incident and even not deposed that the accused also beat P.W.5. Ex.P.1 which is the statement of P.W.1 shows that P.W.1 having lost his conscious in the alleged incident could regain the same sometime later and himself went to the house of his brother in an auto. Even inEx.P.1 there is no mention about the presence of P.W.5 at the scene of offence at the time of alleged occurrence of the offence. There is no mention in Ex.P.1 that

P.W.5 accompanied P.W.1 to the place of occurrence. In his cross examination P.W.5 has denied of stating to police as in Ex.D.2 which is a portion in his Section 161 of Cr.P.C., statement to the effect that P.W.3, her husband and some others came and rescued P.W.1 and sent the accused away and P.W.5 has also denied of stating to police as in Ex.D.3 which is another portion in his Section 161 of Cr.P.C., statement to the effect that he took P.W.1 in an auto to the house of his brother. The contradictions marked as Ex.D.2 and Ex.D.3 are against the evidence of

P.W.1 according to which his brother and P.W.6 took P.W.1 to the house of his brother. So, there is a clear ambiguity in the evidence as to who in fact took P.W.1 to the house of his brother whether P.W.1 himself went to the house of his brother as stated in Ex.P.1 or P.W.6 and the brother of

P.W.1 who took to his brother’s house or it was P.W.5 who dropped

P.W.1 at his brother’s house. 

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12.P.W.6 has deposed that on 12.02.2015 around 10.00 P.M., he returned from Visakhapatnam and parked his van by the side of compound wall of Superintendent of Police office and went to a tiffin cart situated opposite to Sivajyothi Mess by which time the alleged galata of this case was taking place and he witnessed, A.1 beat on the back side head of P.W.1 with an iron Atlakarra and that the other accused and another person twisted P.W.1 with hands and then on hearing the cries of himself and another person who was present there, the accused ran away. When he asked the owner of tiffin cart, she stated that since

P.W.1 asked the accused to pay money for the tiffin, the accused beat

P.W.1. Later he went away from the scene of offence to his house. He did not state about the presence of P.W.5 at the place of offence and at the time of alleged occurrence of the offence. The evidence of P.W.6 is not that P.W.5 was accompanying P.W.1 at the time of alleged occurrence of the offence and that P.W.5 has witnessed the same. In Ex.P.1 also there is no mention that P.W.6 has witnessed the alleged occurrence of the offence. Ex.P.1 does not contain about the presence of P.W.6. Even

P.W.1 did not depose that P.W.6 has witnessed any part of the alleged occurrence of the offence. According to the evidence of P.W.1, P.W.5 and

P.W.6 some other persons had witnessed the alleged incident in this case. Even there were some other shops near the place of offence. The prosecution side has not examined any other witnesses to prove the alleged occurrence of the offence. If the facts and circumstances which I have discussed earlier are taken together and considered, certainly a reasonable doubt arises about the presence of P.W.5 and P.W.6 at the scene of offence and also about their witnessing the alleged occurrence of 12

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the offence. If the evidence of P.W.5 and P.W.6 is taken out of consideration by expressing a doubt about their witnessing the alleged occurrence of the offence, there remains only the evidence of P.W.1 for consideration regarding the actual occurrence of the offence.

13. P.W.7 is only a mediator for police observing the scene of offence and recording the preparation of scene observation report under

Ex.P.2 and the seizure of an iron Atlapulla which was marked as M.O.1.

According to the case of prosecution and the evidence of P.W.11 and

P.W.7, M.O.1 was seized on 13.02.2015 around 08.00 A.M., But the evidence of P.W.3 in this regard is that a police constable came to her and took away M.O.1 from her. But according to P.W.1 as deposed in his evidence in examination in chief itself M.O.1 is not the weapon which was used for beating him and that the weapon used for beating him is bigger in size than M.O.1. So in view of the evidence of P.W.1 and P.W.3 in this regard no importance need be given to the evidence of P.W.7 and the observation report marked as Ex.P.2 and M.O.1.

14.Coming to the medical evidence available on record, according to P.W.8 namely Dr.L.Gouthami who worked as Casualty Medical Officer in RIMS Hospital, Srikakulam who examined P.W.1 on 12.02.2015 at 10.30 A.M., P.W.1 sustained six simple injuries and a grievous injury at cervical spine and that she issued a wound certificate which was marked as Ex.P.3. In her evidence in examination in chief itself P.W.8has deposed that P.W.1 came to the hospital with those injuries due to violence by an unknown person with a weapon stick caused at 09.30A.M., at Ambedkar Junction, Srikakulam on 12.02.2015. Even in the wound certificate under Ex.P.3, P.W.8 has clearly mentioned that 13

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P.W.1 alleged to have sustained injuries due to hit by unknown person by hands and wooden stick at 09.30 A.M., at Ambedkar Junction on 12.02.2015. P.W.8 is a medical officer and an official witness and an independent witness. She has no motive to speak falsely particularly after taking oath before the court either in favour of the prosecution or against the accused. Unless P.W.1 has stated about the same, she would not have mentioned the same either in Ex.P.3 wound certificate or in her evidence. Because P.W.1 and P.W.2 have also deposed that the medical officer who treated P.W.1 has asked as to how P.W.1 sustained injuries and recorded the same, the evidence of P.W.8 in this regard cannot be ignored. This evidence of P.W.8 totally demolishes the case of prosecution regarding the alleged incident. There is inconsistency not only regarding the time, date and place of the alleged incident but also regarding the weapon used between the evidence of P.W.8 and the other evidence available on record regarding the same. In her evidence and also in wound certificate under Ex.P.3, P.W.8 has clearly mentioned that the duration of injuries was 1 to 1½ hours prior to her examination of

P.W.1 which took place on 12.02.2015 at about 10.30A.M. So, certainly those injuries might have been caused to P.W.1 at about 09.00 A.M., on 12.02.2015 and certainly according to that medical evidence those injuries must have not been caused on 11.02.2015 around 10.00 P.M. If really such an incident as alleged by the prosecution and deposed by

P.W.1, P.W.5 and P.W.6 was taken place and P.W.1 sustained so many injuries as mentioned in Ex.P.3 wound certificate on 11.02.2015 around 10.00 P.M., itself, certainly P.W.1 would have been taken directly to the hospital on the same night or at least to the police station on the same 14

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day night. There was no reason for P.W.1 to go to the hospital on the next day i.e., on 12.02.2015 around 10.30 A.M., So, in this view of the matter the evidence of P.W.8appears to be more probable than the case of prosecution and the evidence of P.W.1 at least regarding the date and time of P.W.1 sustaining those injuries. 

15. The evidence of P.W.9 namely Dr.R.Kiranmai who worked as

Assistant Professor in RIMS Hospital, Srikakulam has deposed that on 12.02.2015 and on 14.02.2015 six X­rays for the injuries of P.W.1 were taken and on examination of those X­rays she found C4 vertebra body fracture to P.W.4 and no boney injuries in other places. P.W.8 gave her opinion about the injuries basing on those X­rays. 

16. The evidence of P.W.10 who is the Managing Director of

Vysnavi Hospital, Visakhapatnam is that on 22.02.2015 at 09.20 A.M.,

P.W.1 was admitted in their hospital with a neck injury and that

Dr.D.Ravi conducted surgery for the injury of P.W.1 on 25.02.2015 and that P.W.1 was discharged from the hospital on 07.03.2015. P.W.10 has exhibited the discharge certificate of P.W.1 as Ex.P.5 and the case record as Ex.P.6. An important aspect which can be observed in the case record under Ex.P.6 is that on page No.2 of the same, the statement of P.W.1 was recorded which was signed by P.W.2 as a witness apart from P.W.1 signing the same, in which he came to the hospital on his own because of the pain at his neck. He did not state that he sustained the injuries because the accused beat him. On the reverse of page No.5 in Ex.P.6, there is a clear mention that P.W.1 complained of neck pain following domestic fall 12 days ago. Unless it was stated byP.W.1, there was no reason for mentioning in Ex.P.6 that P.W.1 sustained injury at the neck 15

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due to domestic fall. At this juncture, it is pertinent to note that the case of the accused is that P.W.1 used to consume alcohol and by himself falling down, he sustained injuries at his residence but due to his political rivalry with the accused, this case has been foisted with false contents. P.W.1 has admitted that he participated in a rally conducted by YSR party and that after the incident, he came to know that A.1 is supporter of Telugudesam party. He further admitted that his friend and relatives made an agitation at the office of the Superintendent of Police for the delay in conducting investigation of this case and that P.W.5 and

P.W.6 have also participated in that agitation. Even though he denied that he belongs to YSR Congress party and the accused belong to

Telugudesam party and this case was foisted due to that political rivalry, but his admission shows that he participated in the rally conducted by

YSR party and A.1 belongs to Telugudesam party. Ex.P.6 shows that

P.W.1 sustained injuries due to domestic fall. So, taking advantage of the injuries sustained by him due to domestic fall, a possibility of filing a case of this nature due to the political connections cannot be ruled out. 

17. P.W.11 and P.W.12 are the investigation officers and their evidence is about receipt of medical intimation under Ex.P.8 and recording the statement of P.W.1 under Ex.P.1 in the hospital and registration of the crime and issuing the FIR under Ex.P.7 and examination of the witnesses and recording their statements and preparation of observation report under Ex.P.2 and rough sketch under

Ex.P.9and seizure of M.O.1 and arrest of the accused and filing of charge sheet by P.W.12. Since P.W.11 and P.W.12 are only investigation officers 16

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and not direct witnesses to the alleged occurrence of the offence, their evidence is not useful to prove the alleged occurrence of the offence. 

18.In the statement of P.W.1 under Ex.P.1 and in the FIR only the name of A.2 has been specifically mentioned stating that three others had participated in the alleged commission of the offence along with A.2.

The names of A.1 and A.3 are not mentioned in Ex.P.1 and Ex.P.7. Even though according to Ex.P.1, Ex.P.7 and the evidence of P.W.1, P.W.5 and

P.W.6 four persons participated in the commission of the offence but according to the investigation of the case in total only three persons who are A.1 to A.3 participated in the commission of the offence. So, it is not the case of investigation agency that four persons participated in the commission of the offence. According to the investigation agency, M.O.1 iron Atlakada was used in the commission of the offence whereas P.W.1 denied the same. The weapon spoken to by P.W.1 has not been seized in this case. For the first time in the evidence of P.W.1 before the trial court, P.W.1 spoke about A.1 and A.3. He gave evidence before the trial court on 19.12.2016 whereas the alleged incident is alleged to have taken place according to P.W.1 on 11.02.2015. No identification parade of A.1 and A.3 was conducted in this case. Specific identification marks of A.1 and A.3 not been stated in Ex.P.1 statement. The clear evidence of

P.W.1, P.W.5 and P.W.6 who are alleged direct witnesses to the occurrence of the offence is that they had no prior acquaintance with A.1 and A.3. There is no evidence to show that they have seen or identified

A.1 and A.3 anywhere subsequent the alleged occurrence of the offence and prior to P.W.1 giving evidence before the trial court. Under these circumstances, it is ununderstable as to how the investigation agency 17

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would locate A.1 and A.3 as the participants in the alleged commission of the offence. Simply because P.W.1, P.W.5 and P.W.6 have deposed against A.1 and A.3 by seeing them for the first time in the trial court when they stood in the place allotted to the accused, it is not safe and desirable to believe their evidence that A.1 and A.3 had really participated in the alleged commission of the offence along with A.2. So, in the absence of conducting any identification parade of A.1 and A.3 particularly when the witnesses had no acquaintance with them and their names are not mentioned in the FIR and not even their specific identification marks are stated by the witnesses, the identity of A.1 and

A.3 for the first time before the trial court does not carry much evidenciary value and even in that regard a reasonable benefit of doubt about the participation of A.1 and A.3 in the alleged commission of the offence certainly arises. Under these circumstances, it is not safe and desirable to rely upon the evidence of P.W.1 against the accused. Even if

P.W.1 sustained injuries which is evident from the medical evidence but because of the other circumstances discussed by me above which are available in the evidence, the prosecution case becomes doubtful and certainly under these circumstances a reasonable doubt can be extended to the accused.

19.There is no evidence to show that there was intention on the part of the accused to kill P.W.1 and that the alleged attack made by them against P.W.1 was with an intention to kill him. Even there is no evidence to show that the injuries sustained by P.W.1 are to the extent of causing the death of P.W.1 or that they might likely to cause his death.

The medical evidence does not show that the injuries are in the nature of 18

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causing death of P.W.1. Certainly M.O.1 cannot be said to be either deadly weapon or a weapon which is likely to cause death of P.W.1. So, the facts of the case do not attract the offence punishable under section 307 of the Indian Penal Code. 

20.From the above discussion, I hold on point Nos.1 to 3 that the prosecution side has failed to establish that A.1 had attempted to kill

P.W.1, punishable under section 307 of the Indian Penal Code and that

A.1 voluntarily caused grievous hurt with a dangerous weapon or with a weapon which is likely to cause death of A.1 punishable under section 324 of the Indian Penal Code and that A.1 to A.3 had voluntarily caused hurt to P.W.1 with a common intention of causing hurt punishable under section 323 read with 34 of the Indian Penal Code beyond reasonable doubt and that the accused are entitled to acquittal of all the charges framed against them. Accordingly, I decide these three points against the appellants and in favour of the respondent Nos.1 to 3.

21.POINT No.4 : ­

In view of my observations and findings on the point Nos.1 to 3, I hold that the learned Additional Assistant Sessions Judge,

Srikakulam has considered all the facts and circumstances of the case and has appreciated the evidence on record in right prospective and that the judgment passed by him dated 27.09.2017 in S.C.No.38/2016 is correct according to law and basing on the evidence on record and that there is no need for this court to interfere with the same and that the said judgment deserves confirmation in all respects. Accordingly, I answer this point.

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22.In the result, the appeal is dismissed confirming the judgment dated 27.09.2017 in S.C.No.38/2016 passed by the learned

Additional Assistant Sessions Judge, Srikakulam in all respects. 

Dictated to the Stenographer­Gr.I, transcribed by him,

corrected and pronounced by me in open court, this the 22nd day of January, 2021.

Sd/­ N.Ramesh Babu, 

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

SCs & STs (POA) ACT-CUM-IV ADDL. DISTRICT &

SESSIONS JUDGE, SRIKAKULAM.

Copy to the learned Additional Assistant Sessions Judge, Srikakulam. 

IN THE COURT OF IV ADDITIONAL DISTRICT JUDGE,

SRIKAKULAM.

Present: - N.Ramesh Babu,

IV Additional District Judge.

Monday, this the 22nd day of February, 2021

Appeal Suit.No.58 of 2019

Between:-

Simma Karuvudu, S/o late Chinnappadu, Hindu, aged 53 years, cultivation, residing at Kondamma colony, Singupuram, Srikakulam rural Mandalam, Srikakulam District. …. Appellant/Plaintiff. And:-

1. Simma Narasayya, S/o late Mukhalingam, Hindu, aged about 70 years, employee, residing at Thangivanipeta, Near Peddapadu, Srikakulam rural Mandalam, Srikakulam District.

2. Simma Ramana, S/o Narasayya, Hindu, aged 26 years, employee, residing at Thangivanipeta, Near Peddapadu, Srikakulam rural Mandalam, Srikakulam District.

3. Simma Sreenu, S/o Narasayya, Hindu, aged 21 years, student, residing at Thangivanipeta, near Peddapadu, Srikakulam rural Mandalam, Srikakulam District, Hindu, aged 40 years, business, rest do.,

4. K.Mohan, S/o not known, aged 50 years, cultivation, residing at Thangivanipeta, Near Peddapadu, Srikakulam rural Mandalam, Srikakulam District.

..Respondents/defendants.

On appeal from the judgment and decree dated 08.06.2018 in

O.S.No.458/2009 on the file of Additional Senior Civil Judge, Srikakulam.

Between:-

Simma Karuvudu. …. Plaintiff. And:-

1. Simma Narasayya.

2. Simma Ramana.

3. Simma Sreenu.

4. K.Mohan. … Defendants.

This appeal coming on 03.02.2021 for final hearing before me in the presence of Sri P.Murali Krishna and P.Madhavi, Advocates for appellant/plaintiff and of Sri T.Sivaprasada Rao, Advocate for respondent Nos.1 to 4/Defendant Nos.1 to 4 and having heard both sides and having stood over till this day for consideration, this Court made the following:- 2

A.S.No.58/2019 Dated:22.02.2021.

J U D G M E N T

This appeal suit has been filed by the appellant who is the plaintiff in

O.S.No.458/2009 on the file of the learned Additional Senior Civil Judge,

Srikakulam against the respondents who are the defendants in that suit. For convenience sake, I refer the parties herein after as per their array in the original suit before the trial court.

02. The plaintiff has filed O.S.No.458/2009 for the relief of permanent injunction in respect of an extent of Ac.0.59 cents situated in S.No.349/18 of

Singupuram village in Srikakulam Mandal of Srikakulam District which I herein after refer as the schedule property against the defendants restraining them, their men, agents and supporters etc., from in any way interfering with his peaceful possession and enjoyment over the schedule property and for costs of the suit. His case as set out in the plaint is that originally the schedule property belonged to his paternal grandfather namely Mr.Simma Kistappadu and in the oral partition that took place among his sons, the schedule property fell to the share of

Mr.Chinnappadu who is the father of the plaintiff and in the oral partition that took place among the brothers of the plaintiff, during the life time of Mr.Chinnappadu itself, the schedule property fell to the share of plaintiff and since then, he has been enjoying the said property but when he was attending agricultural operations of green gram crop in the 1st week of December, 2009, the defendants without any manner of right had tried to interfere with the same and tried to dispossess the plaintiff by proclaiming that they had purchased the schedule property from third parties, but the plaintiff could resist the defendants from their illegal acts and that the defendants have proclaimed to dispossess the plaintiff from the schedule property and that the defendants are highly rich and politically influenced people having money and muscle power.

3

A.S.No.58/2019 Dated:22.02.2021.

03. The case of the defendants as per the written statement filed by the 1st defendant which was adopted by the other defendants is that the 1st defendant had purchased the schedule property from Mr.Simma Simmayya and others under a registered sale deed dated 10.09.2008 in document No.4697 and since then, he has been in possession and enjoyment of the same and that due to political rivalry the plaintiff bore grudge against him and tried to trespass into the schedule property without any manner of right but with the help of neighbouring land owners, the 1st defendant could obstruct the plaintiff and that the 1st defendant filed

O.S.No.10/2010 on the file of the learned Additional Senior Civil Judge,

Srikakulam for the relief of permanent injunction and obtained temporary injunction against the plaintiff herein and his sons and one Mr.Adinarayana in

I.A.No.05/2010 and subsequently after due enquiry the temporary injunction was made absolute. So, the suit is not maintainable and liable to be dismissed. The defendants have requested the court to dismiss the suit with costs.

04. Basing on the above contentions of the parties, the trial court has framed the following two issues and settled for trial:

(1) Whether plaintiff is entitled for the relief of permanent injunction as prayed for?

(2) To what relief?

05.In order to prove the case of the plaintiff, he himself got examined as

P.W.1 and got examined 07 other witnesses as P.W.2 to P.W.8 and got marked

Ex.A.1 and Ex.X.1 to Ex.X.12 documents. On the other hand, the 1st defendant himself got examined as D.W.1 and got examined one Mr.G.Kondala Rao as

D.W.2 and got marked Ex.B.1 to Ex.B.11 documents on behalf of the defendants.

06. The trial court having heard the arguments of both sides and analyzed the evidence on record has pronounced a judgment dated 08.06.2018 by 4

A.S.No.58/2019 Dated:22.02.2021.

dismissing the suit with costs which was followed by a decree. Challenging the same, the present civil appeal has been filed.

07.In the grounds of appeal, the appellant/plaintiff has contended that the trial court ought to have decreed the suit instead of dismissing the same by believing the document under Ex.A.1 and the evidence of P.W.1 to P.W.8 and that the trial court has not scrutinized the evidence on record properly and not even appreciated the facts and circumstances of the case and the pleadings of the parties.

08.I have heard the learned counsel for both sides and perused the case record and the evidence on record both oral and documentary.

09.Now, the points that arise for determination are as follows:

(1) Whether the plaintiff was in possession and enjoyment

of the plaint schedule property as on the date of filing the suit?

(2) Whether the plaintiff is entitled to grant the relief of permanent

injunction as prayed for in the plaint?

(3) Whether the decree and judgment passed by the trial court

are correct basing on the evidence on record and according to law?

10.POINT Nos.1 and 2 :-

These two points require common discussion to avoid repetition of the facts and circumstances and evidence in the discussion. So, these two points are taken together for discussion.

The evidence of P.W.1 on one side and the evidence of D.W.1 on the other side are nothing but oath against oath because they are parties to the suit.

P.W.2, P.W.3 and P.W.8 are the witnesses for the case of the plaintiff. D.W.2 is one of the vendors of the 1st defendant and a witness for the defendants. All of them have filed their respective affidavits in the form of their evidence in examination in chief and they were cross-examined. P.W.4 is an official witness being a

Tahsildar of Srikakulam. P.W.5 to P.W.7 are also the vendors of the 1st defendant.

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The plaintiff has relied upon the adangal fasali for 1918 which has been marked as

Ex.A.1 to prove his possession and enjoyment over the schedule property. The learned counsel for the plaintiff contends that fasali 1918 correspondence to the year 2008 which is just prior to filing the suit and so with this document under

Ex.A.1, the plaintiff is able to prove that the plaintiff was in possession and enjoyment of the plaint schedule property as on the date of filing the suit. P.W.4 has deposed that he did not issue Ex.A.1 but it appears to be issued by Tahsildar.

Ex.A.1 is a true copy of No.3 adangal and it was counter signed by the Tahsildar,

Srikakulam Mandal. Except Ex.A.1 there is no other document to prove the contentions of the plaintiff raised in his pleadings regarding the schedule property.

11.It is an admitted fact that originally the schedule property belonged to Mr.Simma Krishnamma @ Kistappadu who is the paternal grandfather of the plaintiff. Admittedly, Mr.Krishnamma @ Kistappadu has got three sons namely

Mr.Surappadu, Mr.Chinnapadu and Mr.Narasimhulu. The plaintiff is the son of

Mr.Chinnappadu whereas the father of Mr.Simma Simmayya (P.W.5) who is one of the vendors of the 1st defendant is the son of said Mr.Narasimhulu. So, P.W.5 and the plaintiff are cousins. But in the judgment of the trial court basing on the evidence of P.W.2 recorded in the cross-examination of P.W.2 wherein he stated that the father of the plaintiff and vendor of defendant No.1 are own brothers, the trial court has observed that the father of the plaintiff and vendor of the 1st defendant are own brothers but it is not correct. So far as the relationship between the plaintiff and one of the vendors of the 1st defendant namely Mr.Simma

Simmayya is concerned as I have already stated they are cousins because the plaintiff is the son of Mr.Chinnappadu whereas Mr.Simma Simmayya is the son of

Mr.Narasimhulu and said Mr.Chinnappadu and said Mr.Narasimhulu are natural brothers being the sons of Mr.Simma Kistappadu.

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12.In a suit for the relief of permanent injunction which is an equitable and discretionary relief, the burden always lies on the plaintiff to show that he was in possession and enjoyment of the schedule property as on the date of filing the suit. It is not necessary for the defendant either to prove his case or even to disprove the case of the plaintiff. The plaintiff cannot depend upon the weakness of the defendant. Even if the defendant fails either to prove to his case or to disprove the case of the plaintiff is not entitled to grant the relief of permanent injunction. Irrespective of whether the defendant either proved his case or disproved the case of the plaintiff, it is obligatory on the part of the plaintiff to prove his case positively by adducing cogent and clinching evidence to prove that he was in possession and enjoyment of the plaint schedule property as on the date of filing the suit to make himself entitled for the relief of permanent injunction and otherwise the case of the plaintiff fails and is not entitled for grant of the relief of permanent injunction.

13.The plaintiff claims that in the partition between his father

Mr.Chinnappadu and the two brothers of Mr.Chinnappadu, the schedule property fell to the share of Mr.Chinnappadu. The oral evidence of the plaintiff and his witnesses in this regard is not sufficient to believe the version of the plaintiff. The next contention of the plaintiff is that in the partition among himself and his brothers, the plaint schedule property fell to his share. In this regard except the oral evidence of the plaintiff and his witnesses, there is no documentary evidence.

In the absence of documentary evidence because the dispute in the suit regarding immoveable property, the oral evidence is not sufficient to believe the case of the plaintiff regarding the said partitions.

14.Coming to the case of the defendants, Mr.Simma Simm,ayya has inherited the schedule property from his father Mr.Narasimhulu and because 7

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Mr.Simma Simmayya and Mr.Simma Appa Rao and Mr.Gunda Geddayya were living jointly and enjoying the properties jointly all of them with their children have sold away the schedule property to the 1st defendant under a registered sale deed, the certified copy which has been marked as Ex.B.1 dated 10.09.2008.

According to the defendants, since the date of purchase under Ex.B.1 sale deed, the 1st defendant has been in possession and enjoyment of the schedule property.

The adangals under Ex.B.2 to Ex.B.6 support the contention of the defendants in this regard. The sale deed under Ex.B.1 also duly corroborate the evidence of

D.W.1 and D.W.2 regarding the 1st defendant purchasing the schedule property.

There is a recital regarding delivery of possession of schedule property to the 1st defendant by his vendors. The I-B namoona under Ex.B.7 shows the name of the 1st defendant in respect of the schedule property. The land revenue receipts two in number under Ex.B.8 show that the 1st defendant paid cist for the schedule property. Ex.B.9 is the I-B namoona standing in the name of the plaintiff but it does not contain any entry regarding the schedule property. Ex.B.10 is the form I-

B relating to Mr.Karanam Mohana Rao who is the neighbouring landlord of the schedule property abutting on the South and West. Ex.B,.11 is the form I-B standing in the name of P.W.8 who is the vendor of Mr.Karanam Mohana Rao.

Ex.B.10 and Ex.B.11 relate to different properties but not the schedule property.

15.According to the evidence of P.W.4, the schedule land stands in the name of Mr.Simma Krishnamma who is the paternal grandfather of the plaintiff and P.W.5 and it is evident from the SLR under Ex.X.1. According to P.W.4 no changes took place in the SLR and still the name of Simma Krishnamma continues to be the original owner of the schedule property according to the SLR which is a permanent record. Referring this evidence of P.W.4, the learned counsel for the plaintiff contends that it supports the case of the plaintiff. But this contention 8

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cannot be accepted because Mr.Simma Krishnamma is equally related to the plaintiff as well as P.W.5 who is one of the vendors of the 1st defendant as the paternal grandfather. Even the defendants did not dispute the original ownership of Mr.S.Krishnamma over the schedule property. The point is as to who between the plaintiff and P.W.5 had succeeded in respect of the schedule property. When the plaintiff contends that he succeeded to the schedule property through his father

Mr.Chinnappadu from Mr.Simma Krishnamma, it is for the plaintiff to prove the same by placing sufficient documentary evidence. But he did not produce any document regarding the same which I have already stated.

16.So far as the validity of the sale deed under Ex.B.1 is concerned,

P.W.5 to P.W.7 who are the vendors under Ex.B.1 sale deed have categorically deposed that they sold away the schedule property to the 1st defendant under

Ex.B.1 sale deed. The learned counsel for the plaintiff contends that Ex.B.1 sale deed is not valid because of the brothers of P.W.5 and the legal representatives of the deceased brother of P.W.5 have not executed that document. This contention cannot be accepted because if the sale deed under Ex.B.1 is not executed by all the brothers or the legal representatives of the deceased brother of P.W.5, even if

Ex.B.1 sale deed is not valid only it is for the other brothers of P.W.5 who have not executed the same to take such contention but not the plaintiff. The plaintiff cannot invalidated Ex.B.1 sale deed on the ground that all the brothers of P.W.5 have not executed the same. When P.W.5 contends that his father acquired the schedule property and he succeeded to the same, it is not necessary for obtaining a sale deed from all the brothers of P.W.5. The brothers of P.W.5 who have not executed the sale deed under Ex.B.1 did not raise any dispute in that regard in the present suit. So, the contention of the learned counsel for the plaintiff in this regard cannot be accepted.

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17.Ex.X.2 the form I-B stands in the name of the plaintiff and it does not contain the schedule property. All the lands belonging to the plaintiff are shown in Ex.X.2 and it does not contain any entry regarding the schedule property.

It shows that the schedule property was not recorded in the name of the plaintiff in the revenue records. Ex.X.3 to Ex.X.12 relate to other properties but not the schedule property. So, it is not necessary to discuss about those documents.

18.In his cross-examination the plaintiff has very clearly and categorically deposed that he was not given any revenue records or documents for the suit schedule property and further deposed that for the current year also

Mr.Simma Narasayya obtained the adangal copy and I=B account for the schedule property. He admitted that the plaintiff in O.S.No.10/2010 who is no other than the 1st defendant herein was given pattadar pass book and title deed for the schedule property. But according to the plaintiff, by paying an amount of

Rs.20,000/- to the concerned, the 1st defendant got issued the pattadar pass book and title deeds and that he (P.W.1) was not given those books because he did not pay any amount. This admission of P.W.1 i.e., the plaintiff and the documents relied upon by the defendants clearly show that the schedule property has been recorded in the name of the 1st defendant in the revenue records and that the name of the plaintiff was not recorded in the revenue records relating to the schedule property. When the name of the plaintiff was not recorded in the revenue records in respect of the schedule property, there was no possibility for officially issuing the adangal under Ex.A.1 mentioning the name of the plaintiff as the possessor and enjoyer of the schedule property for the fasali 1409. So, merely basing on the document under Ex.A.1 it is not safe and desirable to believe that the plaintiff was in possession and enjoyment of the schedule property as on the date of filing the suit.

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19.The plaintiff himself has admitted that prior to filing the suit itself

Mr.Simma Adinarayana (P.W.8) has sold away the property which is situated on the South and West of the schedule property to Mr.Karanam Mohana Rao. Even

P.W.8 has admitted that he sold away the land to Mr.Karanam Mohana Rao on 21.03.2007. But in the plaint schedule the plaintiff has shown the name of p.W.8 as the boundary owner on the West and South of the schedule property instead of

Mr.Karanam Mohana Rao who is admittedly the son-in-law of the 1st defendant.

So it is very clear that the plaintiff has not come to the court with clean hands by mentioning the actual boundaries existing by the time of filing the suit for the schedule property.

20. In the cross-examination of P.W.6 done by the plaintiff it has been recorded that the plaintiff raised horse gram crop on the suit property. Preceding that sentence what is the sentence recorded is it is not true to say that we (means

P.W.6 and others) are not having any right over the suit property to execute sale deed in favour of the 1st defendant. Referring the same, the learned counsel for the plaintiff contends that P.W.6 who is one of the vendors of the 1st defendant has admitted that the plaintiff raised horse gram crop on the suit property which is nothing but the admission of the plaintiff’s possession and enjoyment over the schedule property. The learned counsel for the defendants has submitted that by mistake it was recorded positively and even though a suggestion was given and it was denied by P.W.6 regarding the plaintiff raising horse gram crop on the suit property and that there must be continuation of the earlier suggestion in the recording of evidence and that it cannot be taken as an admission on the part of

P.W.6 regarding the plaintiff raising horse gram crop on the suit property. If the overall evidence of P.W.6 is taken into consideration, it is very clear that he and other vendors under Ex.B.1 sale deed having sold away the schedule property to 11

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the 1st defendant had executed that sale deed and that they have delivered possession of the schedule property to the 1st defendant and that the 1st defendant has been enjoying the same. So if the entire evidence of P.W.6 is taken into consideration, it appears to be that there was mistake in recording the evidence in the cross-examination done on behalf of the plaintiff or otherwise it must be taken as a stray admission on the part of P.W.6 regarding the plaintiff raising horse gram crop on the suit property. P.W.6 gave evidence in the year 2017 whereas the suit was filed in the year 2009. It is not the evidence of P.W.6 that the plaintiff raising horse gram crop in the schedule property was in the year 2009 which is by the time of filing the suit. So, this stray admission of P.W.6 cannot be taken into consideration either to believe the case of the plaintiff or to discard the defendants’ case.

21.P.W.2 has deposed in his cross-examination that the plaintiff got pattadar pass book and title deed for the disputed property which is even against the evidence of the plaintiff who categorically deposed that he was not issued any revenue record regarding the schedule property. According to P.W.2 the father of plaintiff and vendor of defendant No.1 who is P.W.5 are own brothers, which is not correct even according to the plaintiff, because the father of P.W.5 and the father of plaintiff are own brothers. So P.W.2 doesn’t even know the relationship between the plaintiff and P.W.5. For these reason his evidence cannot be accepted.

Coming to the evidence of p.W.3, the plaintiff is his friend and he knows the plaintiff since his childhood. According to P.W.3 the plaintiff has got Ac.2.00 land in three items at three places but he cannot say their boundaries. He stated the name of Mr.Simma Adinarayana i.e., P.W.8 as the boundary owner on the South and West for the schedule property which is not correct because as I have already stated the plaintiff himself admitted that P.W.8 had sold away his property to 12

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Mr.Karanam Mohana Rao and by the time of filing the suit Mr.Karanam Mohana

Rao is the boundary owner on the South and West of the schedule property. So, the evidence of P.W.3 cannot be believed.

22.The defendants have adduced plenty of documentary evidence to show that the 1st defendant having purchased the schedule property has been in possession and enjoyment of the same and that his name was entered into the revenue records in respect of the schedule property. The documents exhibited by the defendants’ further show that the plaintiff has got properties and his name was entered into the revenue records in respect of those properties which do not include the schedule property. So basing on the document under Ex.A.1 and the oral evidence of P.W.1 to P.W.3 and P.W.8 the case of the plaintiff that he was in possession and enjoyment of the schedule property as on the date of filing the suit cannot be believed. On the other hand the evidence of D.W.1 and D.W.2 which is duly corroborated by the evidence of P.W.5 to P.W.7 and the documents under

Ex.B.1 to Ex.B.8 clearly shows the possession and enjoyment of the 1st defendant in respect of the schedule property. So, the case of the defendants is more probable than the case of the plaintiff in respect of the schedule property.

23.When the name of the 1st defendant has been recorded in the revenue records, it means that the name of his vendor was removed for entering the name of the 1st defendant in the revenue records in respect of the schedule property.

Unless the name of his vendor was existing in the revenue records in respect of the schedule property, the name of the 1st defendant would not have been entered into the revenue records by removing the name of his vendor. If somebody’s name was existing in the revenue record than his vendor’s name in respect of the plaint schedule property, certainly the name of the 1st defendant would not have been entered into the revenue records in respect of the schedule property without giving 13

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notice to the other person whose name was existing in the revenue records. The learned counsel for the plaintiff has contended that without issuing notice to the plaintiff, the name of the 1st defendant was entered into the revenue records and the pattadar pass book was issued in favour of the 1st defendant in respect of the plaint schedule property and so it is not valid. The learned counsel for the plaintiff has relied upon a decision in D.Suidhakar Reddy Vs. Joint Collector reported in 2021 (1) ALD 238 (TS) in support of his contention in this regard. But this contention cannot be accepted because there is no record to show that firstly the name of the plaintiff was entered into the revenue records in respect of the plaint schedule property and that by removing the name of the plaintiff, the name of the 1st defendant was entered into the revenue records in respect of the schedule property in that way the pattadar pass book was issued in favour of the 1st defendant. Notice to the plaintiff for entering the name of the 1st defendant into the revenue records in respect of the plaint schedule property could be issued only if the name of the plaintiff was existing in the revenue records in respect of the schedule property, otherwise no notice would be issued to the plaintiff. The contention of the learned counsel for the plaintiff in this regard shows that no notice was issued to the plaintiff before entering the name of the 1st defendant into the revenue records in respect of the schedule property. It means that the name of the plaintiff was not existing in the revenue records in respect of the schedule property. Even otherwise if the plaintiff is aggrieved of issuing pattadar pass book in favour of the 1st defendant and entering the name of the 1st defendant into the revenue records in respect of the schedule property, it is for the plaintiff to take steps for cancellation of the pattadar pass book. Without taking such steps his mere contention that pattadar pass book is not valid because no notice was issued to him is neither correct nor can it be accepted. Since the dispute in the suit is 14

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regarding immoveable property, mere oral evidence of the plaintiff and his witnesses is not sufficient to believe the case of the plaintiff and it is necessary for the plaintiff to exhibit documents in support of his contentions. Since the plaintiff has not exhibited any documents in support of his contentions, his case and evidence cannot be believed. The decision relied upon by the learned counsel for the plaintiff in this regard is in a writ petition filed challenging the orders passed by revenue officials under the provisions of A.P.Rights in Land and Pattadar Pass

Books Act, 1971 when one of the parties of the case had challenged the orders passed by the revenue officials. But the plaintiff herein did not challenge issuing pattadar pass book in respect of the schedule property in favour of the 1st defendant. So, the cited decision cannot be applied in the present case.

24.The learned counsel for the plaintiff has relied upon a decision in

Jose Vs. Johnson in Civil Appeal No.1892/2020 of the Honourable Supreme

Court of India dated 02.03.2020 in which even though the trial court has passed a decree for permanent injunction but the 1st appellate court having set aside that decree had remanded the matter for fresh disposal to the trial court because and

I.A.No.349/2013 filed under Order 41 Rule 27 of the Code of Civil Procedure was filed for production of a certified copy of the partition deed bearing No.651/1964.

In the appeal filed against that remanded order the Honourable High Court has restored the judgment of the trial court by allowing the appeal set aside the remand order of the 1st appellate court. The Honourable Supreme Court in the cited case has restored the order of the 1st appellate court by setting aside the judgment dated 14.11.2014 passed by the Honourable High Court of Kerala in FAO (RO)

No.229/2014. The cited case was decided basing on the facts and circumstances of the case. There is no preposition of law laid down in that decision. So that decision cannot be applied to the present case.

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25.From the above discussion, I hold on the point Nos.1 and 2 that the plaintiff has failed to prove that he was in possession and enjoyment of the schedule property as on the date of filing the suit and that he is not entitled for granting the relief of permanent injunction as prayed for in the plaint. Accordingly

I decide these two points against the plaintiff and in favour of the defendants.

26.POINT No.3 :

In view of my findings on the earlier discussed and decided point

Nos.1 and 2, I hold that the trial court has rightly appreciated the facts and circumstances of the case and the evidence on record and that its observations and findings on all material aspects except with regard to the relationship between the plaintiff and P.W.5 are correct and that the judgment and decree passed by the trial court are also correct basing on the evidence on record and according to law.

Accordingly, I decide this point against the plaintiff and in favour of defendants.

27.In view of my findings on point Nos.1 to 3, I hold that the appeal is not maintainable and liable to be dismissed and that the decree and judgment passed by the trial court deserve confirmation in all respects.

28.In the result, the appeal is dismissed with costs confirming the decree and judgment dated 08.06.2018 in O.S.No.458/2009 passed by the learned

Additional Senior Civil Judge, Srikakulam.

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

pronounced by me in open court, this the 22nd day of February, 2021.

Sd/-.Ramesh Babu,

IV Additional District Judge, Srikakulam. Copy to the Additional Senior Civil Judge, Srikakulam.

IN THE COURT OF IV ADDITIONAL DISTRICT JUDGE,

SRIKAKULAM.

Present: - N.Ramesh Babu,

IV Additional District Judge.

Wednesday, this the 10th day of February, 2021

Appeal Suit.No.87 of 2019

Between:-

Tirlangi Yeshoda, W/o late Madhusudhan Rao, aged 47 years, household duties and cultivation, R/o I.J.Naidu Colony, Amadalavalasa Municipality, Amadalavalasa, Srikakulam District. …. Appellant/Plaintiff. And:-

1. Kothakota Suryanarayana, S/o Satyam, aged 57 years, Hindu, resident of Laxmudupeta village, S.M.Puram post, Etcherla Mandalam, Srikakulam District.

2. Kothakota Yerrannaidu, S/o Byragi, aged 67 years, Hindu, resident of Kinthali Mill junction, Laxmudupeta village, S.M.Puram post, Etcherla Mandalam, Srikakulam District.

3. Pydi Koteswara Rao, S/o Satyam, aged 49 years, Hindu, resident of Laxmudupeta village, S.M.Puram Post, Etcherla Mandalam, Srikakulam District.

4. Hanumanthu Latchanna, S/o Narayudu, aged 59 years, Hindu, Laxmudupeta village, S.M.Puram post, Etcherla Mandalam, Srikakulam District.

5. Hanumanthu Varahalu, S/o Narayudu, aged 62 years, Hindu, Laxmudupeta village, S.M.Puram post, Etcherla Mandalam, Srikakulam District.

6. Pedada Srirama Murthy, S/o late Ramulu, aged 45 years, Hindu, Laxmudupeta village, S.M.Puram post, Etcherla Mandalam, Srikakulam District.

..Respondents/defendants.

On appeal from the judgment and decree dated 07.08.2018 in

O.S.No.114/2011 on the file of Additional Senior Civil Judge, Srikakulam.

Between:-

T.Yesoda. …. Plaintiff. And:-

1. K.Suryanarayana.

2. K.Yerrannaidu.

3. Pydi Koteswara Rao.

4. H.Latchanna.

5. H.Varahalu.

6. P.Sri Rama Murthy. … Defendants.

This appeal coming on 04.02.2021 for final hearing before me in the presence of Sri Chapara Ramesh, Sri Jallu Thirupathi Rao, Smt.Chapara 2

A.S.No.87/2019 Dated:10.02.2021.

Umamaheswari and Smt.Jallu Someswari, Advocates for appellant/plaintiff and of

Sri B.R.V.L.N.Patro, Advocate for respondent No.1/Defendant No.1, Sri Ch.Satya

Rao, Advocate for Defendant Nos.3 to 6/respondent Nos.3 to 6 and the appeal against 2nd defendant/2nd respondent is dismissed on 14.10.2019 and having heard both sides and having stood over till this day for consideration, this Court made the following:-

J U D G M E N T

This appeal has been filed by the appellant against the respondents seeking to set aside the decree and judgment dated 07.08.2018 passed by the learned

Additional Senior Civil Judge, Srikakulam in O.S.No.114/2011.

02.The appellant has filed O.S.No.114/2011 on the file of the learned

Additional Senior Civil Judge, Srikakulam seeking the relief of permanent

injunction against the respondents in respect of four items of landed property shown in plaint schedule which I herein after refer as the schedule property for convenience sake, which items are situated in different survey numbers of

S.M.Puram village limits in Etcherla Mandal of Srikakulam District. Her case as set out in the plaint of that suit is that she and late Mr.Kottakota Appanna who is the son of late Mr.Kottakota Sriramulu are the original owners of the schedule property and that he died intestate on 30.03.2007 leaving behind him, the appellant and her mother as his legal heirs and that subsequently her mother died intestate on 19.03.2010 leaving behind her, the appellant as her sole legal representative and that during his lifetime late Mr.Appanna possessed and enjoyed the schedule property and after his death the appellant and her mother possessed and enjoyed the same and after the death of her mother, the appellant has been possessing and enjoying the same. But the defendants who have no right in the schedule property tried to interfere with her right in the schedule property in May, 2010 and the appellant got issued a legal notice dated 11.05.2010 to all the respondents, but the respondent Nos.2 and 6 have evaded to receive that notice whereas the other respondents have received the same and so she got issued the said notice to the 3

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respondent Nos.2 and 5 by way of certificate of posting and that there was no reply from the respondents. Her further case is that again in the 2nd week of April, 2011 the respondents attempted to trespass into the schedule property with the collusion of the local Village Revenue Officer and so, the appellant has filed that suit for the relief of permanent injunction.

03. The respondents have totally denied the case of the appellant and seriously disputed the same by taking several contentions. The case of the 1st respondent as set out in his written statement is that the appellant and her father having received an amount of Rs.24,100/- from him had executed an un registered sale document on 31.03.1998 for an extent of Ac.0.22 cents situated in

S.No.378/17 and another extent of Ac.0.03½ cents situated in S.No.378/15 which is a part of item No.1 of schedule property and that he was delivered possession of the property purchased by him and that since 31.03.1998 he has been possessing and enjoying the said property, but the appellant has filed the suit with false contents and that he perfected his title over that property by adverse possession.

04.The case of the 2nd respondent as set out in his written statement is that he purchased Ac.0.19 cents from the father of the appellant in the year 1990 under a registered sale deed bearing No.409/2009 and also purchased Ac.0.15 cents in S.No.378/27 and Ac.0.40 cents in S.No.378/26 and that the appellant has shown the said Ac.0.15 cents of land in Item No.2 of the plaint schedule and that he got title, possession and enjoyment over the property purchased by him since 1990 but the appellant filed the suit with false contents and wrong boundaries to have wrongful gain.

05.The case of the 3rd respondent as set out in his written statement is that the appellant had suppressed the material facts about selling away all items of the schedule property and that the appellant sold away her property to the respondent Nos.3 to 6 for a valuable consideration under registered sale deeds and 4

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that the 3rd respondent and his sons had purchased Ac.0.20cents of land in

S.No.378/26 under a registered sale deed bearing No.1476 dated 25.07.1991 and have been enjoying the same by taking possession of the same and that she sold away item No.1 of the schedule properties to the 5th respondent for a valuable consideration under a registered sale deed dated 25.07.1991, an extent of Ac.0.13 cents and since then the 5th respondent has been in possession and enjoyment of the same. He further contends that the 4th respondent has purchased Ac.0.16 cents of land in S.No.378/15 under a registered sale deed dated 30.03.1998 and was delivered possession of the same and has been enjoying the same by constructing a

RCC slabbed house in it and further that the 5th respondent has purchased Ac.0.12 cents of land in S.No.378/15 and was delivered possession of the same and has been enjoying the same by constructing a RCC slabbed house in it and that the 6th respondent has purchased an extent of Ac.0.12 cents in S.No.378/26 out of item

No.3 of schedule property and that the appellant has sold away Ac.0.20 cents of land each to Mr.Pydi Jagannadha Rao and Mr.Pydi Ramana Murthy situated in

R.S.No.378/26 and they have been enjoying the same. The respondent Nos.4 to 6 adopted the written statement filed by the 3rd respondent. All the respondents have requested to dismiss the suit.

06. Basing on the above contentions of the parties, the trial court has framed the following five issues and settled for trial:

(1) Whether the defendant No.1 has perfected his title by way of adverse possession as contended by him?

(2) Whether the boundaries shown in plaint schedule property are wrong?

(3) Whether this court has no pecuniary jurisdiction to entertain the suit?

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

(5) To what relief?

08.During the trial, the appellant herself got examined as P.W.1 and got examined three more witnesses as P.W.2 to P.W.4 and got marked Ex.A.1 to 5

A.S.No.87/2019 Dated:10.02.2021.

Ex.A.10 documents on her behalf. On the other hand, the respondent Nos.1, 4, 5, 6 and 3 have got themselves examined as D.Ws.1 to 5 respectively and got examined one Mr.Pedada Adinarayana as D.W.6 and got marked Ex.B.1 to

Ex.B.19 documents on their behalf.

09.The trial court having heard the arguments of both sides has

pronounced a judgment dated 07.08.2018 by dismissing the suit of the appellant

with costs followed by a decree. In its judgment, the trial court has decided the issue Nos.1 to3 in favour of the appellant and against the respondents but decided the 4th issue against the appellant and in favour of the respondents. Consequently the issue No.5 ended against the appellant and in favour of the respondents resulting in dismissal of the suit with costs. Having aggrieved of the said decree and judgment, the appellant has preferred the present appeal. Since this appeal is regarding the decision of the trial court in respect of issue No.4, it is not necessary for this court to discuss about the issue Nos.1 to 3 which were framed by the trial court and decided in favour of the appellant and against the respondents. Even otherwise in a suit for the relief of bear permanent injunction, the important and only point for determination would be as to whether the plaintiff was in possession and enjoyment of the plaint schedule property as on the date of filing the suit. So, it is not necessary to discuss and decide about the other issues in this appeal.

10.The contention of the appellant as set out in her appeal grounds is that the decree and judgment passed by the trial court are contrary to law, weight of evidence and probabilities of the case and that the trial court erred in dismissing the suit which ought to have been allowed and that the trial court ought to have answered the 4th issue also in favour of the appellant because she proved her possession and enjoyment over the schedule property by examining P.W.1 to P.W.4 and Ex.A.1 to Ex.A.10 documents. According to her, Ex.B.5 to Ex.B.19 documents are subsequent to filing the suit and were brought into existence for the 6

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purpose of the suit and that the respondents have failed to prove that they belong to schedule property and that D.W.6 who is an independent witness has supported the case of the appellant that she did not execute any registered sale deeds in favour of the respondents as deposed by D.W.6 in his cross-examination. Further, the appellant contended that the trial court has not properly appreciated the evidence on record and did not consider several facts and circumstances of the case.

11. I have heard the learned counsel for both sides. I have perused the case record and the evidence on record both oral and documentary and also the decree and judgment passed by the trial court and the grounds of appeal submitted by the appellant.

12.Now, the point for determination is:

Whether the appellant was in possession and enjoyment of the schedule property as on the date of filing the suit?

13.POINT :-

The appellant as P.W.1 filed her affidavit in the form of her evidence in examination in chief stating all the material facts which were mentioned in her plaint. D.W.1 to D.W.5 have filed their respective affidavits in the form of their evidence in examination in chief in respect of their contentions which have been set out in their respective written statements. All these witnesses were cross examined. The evidence of P.W.1 on one side and the evidence of D.W.1 to D.W.5 on the other side being the parties to the suit are nothing but oath against oath.

Ex.A.1 is the office copy of the legal notice got issued by the plaintiff which was received by all the respondents except respondent Nos.2 and 6. The notices sent to respondent Nos.2 and 6 were returned unserved. Ex.A.2 to Ex.A.7 are the documents in that connection. Ex.A.8 is the copy of SLR which shows that the schedule property belonged to late Mr.Kottakota Appanna who is admittedly the father of the appellant. There is no dispute with regard to the fact that originally 7

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the schedule property belonged to said late Mr.Appanna. Even the respondent contend that they purchased properties either from late Mr.Appanna or jointly from him and the appellant. There is no dispute with regard to the fact that the father of the appellant who is Mr.Appanna died intestate on 30.03.2007 and his wife who is the mother of the appellant died on 19.03.2010, both intestate and now the appellant alone remained in their family.

14. Coming to the documentary evidence of the respondents mainly they have relied upon the registered sale deeds marked as Ex.B.1 to Ex.B.4.

Ex.B.1 is the original registered sale deed dated 25.07.1991 which shows that

Mr.PydiKoteswara Rao, Mr.Jagannadham and Mr.Ramana Murthy who are the sons of late Pydi Satyanarayana have purchased an extent of Ac.0.20cents of land situated on the North out of Ac.0.40cents of land situated in S.No.378/26 and patta

No.782 of Kesavaraopeta village panchayat and Etcherla revenue mandal from

Mr.Kottakota Appanna who is the father of the appellant for a valuable consideration of Rs.3,600/- and that it was delivered possession to the purchasers by the vendor on the same day. Ex.B.2 to Ex.B.4 registered sale deeds show that the respondent Nos.4, 5 and the father of 6th respondent had purchased an extent of

Ac.0.16 cents, Ac.0.13 cents out of item No.1 schedule properties and Ac.0.12 cents out of Item No.3 schedule property respectively under those three sale deeds on 30.03.1998 from the appellant and her father for valuable considerations and were delivered possession of those properties on the same day. The appellant has denied of execution of the documents under Ex.B.1 to Ex.B.4 either by her father or jointly by her and her father. Mr.Pydi Adinarayana who is D.W.6 and one of the attesters of Ex.B.1 to Ex.B.4 registered sale deeds, even though filed his affidavit clearly stating that the appellant and her father had sold away the properties and executed those documents and delivered possession of the respective properties to the respective vendees, but in his cross-examination he admitted that the appellant 8

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did not execute those sale deeds and that she did not sign on those documents in his presence, but he voluntarily deposed in his cross-examination that the father of the appellant has signed on those sale deeds. Ex.B.1 to Ex.B.4 sale deeds contain the thumb impressions which are said to be belonging to the father of the appellant and Ex.B.2 to Ex.B.4 contain the thumb impressions which are said to be belonging to the appellant. A perusal of Ex.B.2 to Ex.B.4 sale deeds shows that the appellant also executed those three sale deeds along with her father. Even though the respondents did not get D.W.6 declared as a hostile witness because his evidence in the cross-examination regarding his admission that the appellant did not execute the sale deeds in his presence by resiling from his earlier version as mentioned in his affidavit given in the form of evidence in examination in chief but because the documents themselves prove that the appellant also executed those documents along with her father, this admission of D.W.6 doesn’t need to be taken into consideration. The evidence of D.W.1 to D.W.5 is clear that the appellant also sold away the schedule properties along with her father which is evident from the documentary evidence under Ex.B.2 to Ex.B.4. So, the contention of the appellant that she did not sell away the schedule properties and did not execute those sale deeds cannot be accepted. Even otherwise when Ex.B.2 to Ex.B.4 sale deeds are showing that she too had executed those documents along with her father, her oral contention that she did not execute those documents cannot be taken into consideration. She has not taken any steps to get compared her admitted thumb impressions with her alleged thumb impressions appearing on Ex.B.2 to Ex.B.4 documents even though comparison of finger prints is exact science. She would have taken steps for comparison of her alleged thumb impressions available on

Ex.B.2 to Ex.B.4 documents with her admitted thumb impressions to prove that she did not execute those documents and that the thumb impressions available on those documents do not belong to her. It is pertinent to note here that Ex.A.9 9

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which is the adangal pahani for the fasali 1420 which has been exhibited by the appellant herself, shows that the name of 4th respondent has been shown therein in respect of Ac.0.28 cents of land out of Ac.0.58 cents land shown in item No.1 schedule property and it also contains that he acquired the same by purchase. This entry in Ex.A.9 supports the sale transaction under Ex.B.2 sale deed. The appellant has not even taken any steps to get Ex.B.1 to Ex.B.4 sale deeds cancelled. So long as Ex.B.1 to Ex.B.4 sale deeds remain un-cancelled they need to be taken into consideration and the oral contention of the appellant against them does not deserve any merits.

15. Coming to the documents under Ex.B.5 to Ex.B.19, they are house tax demand notices and according to D.W.3 to D.W.5 after purchase of the properties as per the sale deeds under Ex.B.2 to Ex.B.4, they have constructed houses in their respective sites for which Ex.B.4 to Ex.B.19 demand notices were issued. The contention of the appellant regarding those demand notices is that the respondents have not proved that those demand notices are connected to the schedule property. No doubt there is no documentary evidence to show that the houses for which Ex.B.4 to Ex.B.19 house tax demand notices were issued, were constructed in the schedule property, but the oral evidence of D.W.3 to D.W.5 is very much available in this regard. Except putting some suggestions to them, nothing has been elicited to discredit their oral evidence, by the appellant in this regard. D.W.3 to D.W.5 have denied all the suggestions put to them in this regard.

There is no reason to disbelieve their oral evidence. The appellant has not even placed any contra material or rebuttal evidence in this regard. The appellant has not placed any material to show that Ex.B.5 to Ex.B.19documents are not connected to the houses situated in the schedule property or that they are connected to the houses situated other than in the schedule property. So, the contention of the appellant in this regard cannot be accepted.

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16. Ex.A.10 is the adangal pahani for the Fasali 1420 which is connected to Item No.2 schedule property. It stands in the name of late

Mr.Appanna. Even though admittedly Mr.Appanna died on 30.03.2007 itself but even for fasali 1420 which relates to the calendar year 2010-2011, his name is shown as enjoyer for that property in Ex.A.10. So far as Ex.A.9 is concerned, it contains only Ac.0.30 cents in the name of late Appanna out of Ac.0.58 cents in

Item No.1 schedule property. Even in Ex.A.9 also late Mr.Appanna is shown as enjoyer in the year 2010-2011. So merely basing on Ex.A.8 to A.10 documents the case of the appellant that she was in possession and enjoyment of the schedule property as on the date of filing the suit i.e., 27.04.2011 cannot be believed.

17. Coming to the oral evidence of the witnesses of the appellant who are P.W.2 to P.W.4, their oral evidence does not inspire any confidence to believe that the appellant was in possession and enjoyment of the schedule property as on the date of filing the suit for the following reasons. According to them P.W.2 to

P.W.4 have attended as coolies under appellant in the schedule properties. They have admitted that they do not know the boundaries of the schedule properties.

According to them, the schedule properties are situated in Laxmudupeta village.

None of them belongs to that village. P.W.2 resides in Amadalavalasa in the same colony in which the appellant has been residing which is at a fare of Rs.15/- by 2017 from Laxmudupeta village. The appellant in her evidence has not deposed that she took P.W.2 to P.W.4 for agricultural operations in the schedule properties.

Even though in his affidavit P.W.2 has mentioned that the respondents without having any manner of right, possession and enjoyment have tried to interfere with the possession and enjoyment of the appellant in the schedule property, but in his cross examination he has categorically admitted that he does not know the respondents. When suggestions were made in their cross-examination that the respondents have purchased the schedule property, P.W.2 to P.W.4 have pleaded 11

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ignorance stating that they do not know about the same. P.W.3 is a resident of

Chiguruvalasa village of Sarubujjili Mandal whereas the schedule properties are situated in Etcherla Mandal. According to P.W.4, he attended the cooli work for the appellant in the schedule property about two years back to his cross- examination dated 13.11.2017 which is much later to the filing of the suit. So, his evidence doesn’t need to be taken into consideration. So, it is unsafe and undesirable to rely upon the oral evidence of P.W.2 to P.W.4.

18.The appellant herself admitted in her cross-examination that her father came to her house about 10 years prior to his death and he died in her house in Amadalavalasa. Admittedly he died on 30.03.2007. The properties sold under

Ex.B.2 to Ex.B.4 was in 1998 and in Ex.B.1 in 1991. A possibility of the father of the appellant shifting his residence to Amadalavalasa by disposing of his properties situated in S.M.Puram village of Etcherla Mandal subsequent to execution of the sale deeds under Ex.B.1 to Ex.B.4 cannot be ruled out. The appellant has not filed any document to show that personally she had ever in possession and enjoyment of the schedule property much less as on the date of filing the suit. Likewise, there is no document filed by the appellant to show that her parents had ever in possession and enjoyment of the schedule property subsequent to the year 1998, during their lifetime. The appellant has not examined the neighbouring land owners excluding the respondents or at least the villagers in which village the schedule property is situated. So even the oral evidence of the appellant as P.W.1 is not sufficient to consider and believe that she was in possession and enjoyment of the schedule property as on the date of filing the suit.

Even if the respondents did not issue any reply notice to the notice got issued by the appellant under Ex.A.1, the case of the appellant cannot be believed and she is not entitled to grant the relief of injunction.

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19.When Ex.B.1 to Ex.B.4 registered sale deeds are glaring at her, the best course open for the appellant is to seek for cancellation of those sale deeds and also to seek the relief of declaration of her title over the schedule property.

The suit filed by her for the relief of bare permanent injunction, when particularly the respondents contend that they have purchased the schedule property from the appellant and her father, is not at all sufficient and maintainable.

20.In a suit filed for the relief of bare permanent injunction, the burden heavily lies on the plaintiff to prove that the plaintiff was in possession and enjoyment of the schedule property as on the date of filing the suit. The plaintiff cannot depend upon the weakness of the defendants. It is not necessary for the defendants in such a suit either to prove their case or to disprove the case of the plaintiff. It is suffice for them just to deny the case of the plaintiff. In case of the defendants denying the case of the plaintiff in a suit filed for the relief of bare permanent injunction, the burden heavily lies on the plaintiff to prove that the plaintiff is in possession and enjoyment of the schedule property as on the date of filing the suit, which I have already stated. The learned counsel for the appellant by referring the evidence of D.W.1 to D.W.6 in their cross-examination where there are some discrepancies has contended that the respondents have failed to prove their case. For the above stated reasons, I hold that even if the respondents fail to prove their case and to prove that they have purchased the schedule property and to prove that they were ever in possession and enjoyment of the schedule property, it is not sufficient either to believe the case of the plaintiff/appellant or to grant the relief of permanent injunction in her favour. Even if the sale deeds under

Ex.B.1 to Ex.B.4 are neither true nor valid according to law and even if Ex.B.4 to

Ex.B.19 documents do not pertain to the houses situated in the schedule property, the appellant is not entitled to grant the relief of permanent injunction. Even if the appellant has got title, ownership or at least a share in the schedule property, she is 13

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not entitled to grant the relief of permanent injunction. As I have already stated actually what is required to grant the relief of permanent injunction for the appellant is her proving that she was in possession and enjoyment of the schedule property as on the date of filing the suit and that the respondents were trying to interfere with her possession and enjoyment of the same. Merely basing on the oral evidence of P.W.1 to P.W.4 and Ex.A.8 to Ex.A.10 documents which I have discussed earlier, the appellant is not entitled to grant the relief of permanent injunction as prayed for in the suit. In this case, the appellant has miserably failed to prove that she was in possession and enjoyment of the schedule property as on the date of filing the suit and so she is not entitled to grant the relief of permanent injunction as prayed for in the suit. Accordingly, I decide this point against the appellant and in favour of the respondents.

21. From the above discussion and my finding on the earlier discussed and decided point, I hold that the trial court has rightly dismissed the suit of the appellant with costs and that the contention of the appellant that the decree and judgment passed by the trial court are not correct is not acceptable and maintainable. Consequently the appeal fails and is liable to be dismissed with costs.

22.Since the appeal stood dismissed against the 2nd respondent on 14.10.2019 the appellant is not entitled to grant any relief against the 2nd respondent.

23.In the result, the appeal is dismissed with costs confirming the decree and judgment dated 07.08.2018 in O.S.No.114/2011 passed by the learned

Additional Senior Civil Judge, Srikakulam.

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

pronounced by me in open court, this the 10th day of February, 2021.

Sd/-.N.Ramesh Babu,

IV Additional District Judge, Srikakulam. Copy to the Additional Senior Civil Judge, Srikakulam.

IN THE COURT OF IV ADDITIONAL DISTRICT JUDGE,

SRIKAKULAM.

Present: - N.Ramesh Babu,

IV Additional District Judge.

Wednesday, this the 17th day of February, 2021

Appeal Suit.No.09 of 2018

Between:-

1. Sasapu Srirama Murthy, S/o late Chiranjeevulu, Hindu, aged 52 years, constable, Excise department, r/o Ponugutivalasa village, Santha Kaviti Mandal, Srikakulam District.

2. Runku Rajeswari styling herself as Sasapu Rajeswari, W/o late Chiranjeevulu, Hindu, aged 63 years, household duties, r/o Ponugutivalasa village, Santhakaviti Mandal, Srikakulam District.

3. Avula Revathi Devi, W/o A.Suresh Kumar, Hindu, aged 37 years, r/o Velama Street, Near Dr.Venkata Naidu Hospital, beside Puppala Apartments, Bobbili Town, Post and Mandal, Vizianagaram District, presently r/o Ponugutivalasa village, Santhakaviti Mandal, Srikakulam District.

4. Sasapu Suresh Kumar, S/o late Chiranjeevulu, Hindu, aged 39 years, business, r/o Ponugutivalasa village, Santhakaviti Mandal, Srikakulam District.

5. Girada Radha Devi, W/o Umamaheswara Rao, Hindu, aged 35 years, household duties, r/o 5th lane, Gandhi Nagar, Rajam town, post and Mandal, Srikakulam District, presently residing at Visakha-B colony, Srikakulam District. …. Appellants/Defendant Nos.1 to 5. And:-

1. Budite Rama Devi, W/o B.V.Bheemeswara Rao, Hindu, aged 39 years, household duties, r/o D.No.3-7-45/12, Kattera Street, Srikakulam town, Post and District. … 1st respondent/plaintiff.

Sasapu Ammannamma (died). … 6 th defendant.

2. Cheemakurthi Sreenivasa Gup[ta, S/o Krishna, Hindu, aged 44 years, Business, r/o Ponugutivalasa village, Santhakaviti Mandal, Srikakulam District.

3. Cheemakurthi Krishna Rao, S/o late Venkatarayulu, aged 71 years, business, r/o rest do.,

4. Cheemakurthi Gopal, S/o late Venkatarayalu, aged 52 years, business, r/o rest do.,

5. G.M.R.Foundations represented by its General Manager, Rajam town, post and Mandal, Srikakulam District.

6. Vavilapalli Chandravathi, W/o late Appalanaidu, aged 70 years, household duties, r/o D.No.12-11-8/2, Gandham Somesu lane, Indira Colony, Balacheruvu Road (B C Road), Kotta Gajuwaka, Visakhapatnam-530026.

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7. Runku Venkata Ratnam, W/o Surapunaidu, aged 68 years, Hindu, household duties, d/oR.Naresh Kumar, r/o D.No.1-173, Beside Binnigari Church, Madhuranagar, Kakinada-533003, East Godavari District.

8. Girada Varahalamma, W/o Thavitinaidu, retired ASI in police department, aged 66 years, Hindu, household duties, r/o Varalaxmi Nilayam, Near Baba Vidyanikethan, Dolapeta, h/oRajam, Rajam Mandal, Srikakulam District.

9. Reddi Seetharatnam, W/o Appalanaidu, aged 64 years, Hindu, B.C.Hostel Cook, r/o D.No.C-108, B.C.Colony, Vandrangi village, G.Sigadam Mandal, Srikakulam District. 10.Sasapu Srinivasa Rao, S/o Appalanaidu, aged 45 years, Hindu, cultivation, r/o Ponugutivalasa village, Santhakaviti Mandal, Srikakulam District. 11.Yarlagadda Srikantyh, S/o Babu Rao, aged 49 years, Hindu, Managing Partner of Sri Ranga Automobiles, Peddapadu road, Srikakulam town and District. 12.Kinthali Rama Sao, S/o Ramanayya, aged 62 years, Hindu, business, r/o Eswara Narayana Colony, Rajam Nagar Panchayat, Srikakulam District. 13.Veturu Rama Rao, S/o Venkata Pydisetti, aged 68 years, Hindu, business, r/o rest do., 14.Mamidipaka Krishna Murthy, S/o Narayana Murthy, aged 50 years, Hindu, business, r/o rest do., 15.Garapati Srineevasa Rao, S/o Kanna Rao, aged 50 years, Hindu, business, r/o Saradhi, Srineevas Theatre Road, Rajam Nagar Panchayat, rest do., 16.Sunkari Satyanarayana, S/o Varahalu, aged 48 years, Hindu, r/o D.No.4-28, Saradhi, rest do., 17.Balivada Ravi Sankar, S/o Srinivasa Rao, afged 56 years, Hindu, r/o Boddapalem village, Anandapuram Mandal, Visakhapatnam District.

..Respondents 2 to 17/defendants 7 to 22.

On appeal from the judgment and decree dated 18.08.2017 in

O.S.No.31/2008 on the file of Senior Civil Judge, Rajam.

Between:-

Budite Rama Devi …. Plaintiff. And:-

1. Sasapu Srirama Murthy

2. Runku Rajeswari.

3. Avula Revathi Devi.

4. Sasapu Suresh Kumar.

5. Girada Radha Devi.

6. Sasapu Ammannamma (Died).

7. Cheemakurthi Sreenivasa Gupta.

8. Cheemakurthi Krishna Rao.

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9. Cheemakurtji Gopal. 10.G.M.R.Foundations represented by its GeneralManager, Rajam. 11.Vavilapalli Chandravathi. 12.Runku Venkata Ratnam. 13.Girada Varahalamma. 14.Reddi Seetharatnam. 15.Sasapu Srinivasa Rao. 16.Yarlagadda Srikanth. 17.Kinthali Rama Sao. 18.Veturu Rama Rao. 19.Mamidpaka Krishna Murthy. 20.Garapati Srineevasa Rao. 21.Sunkari Satyanarayana. 22.Balivada Ravi Sankar. … Defendants.

This appeal coming on 12..02.2021 for final hearing before me in the presence of Sri C.Narasimha Murthy and Sri Y.Prasanna Kumar, Advocates

for Appellants/defendant Nos.1 to 5 and Sri S.Rudra Sekhara Rao, Advocate

for respondent No.1/Plaintiff and respondent No.11/Defendant No.16 and of

Sri R.Vijaya Kumar, Advocate for respondent Nos.2 to 5/defendant Nos.7 to 10 and the respondent Nos.6 to 10 and 12 to 17/Defendant Nos.11 to 15 and 17 to 22 having been called absent and set exparte and having heard both sides and having stood over till this day for consideration, this Court made the following:-

J U D G M E N T

This appeal suit has been filed by the appellants who are defendant

Nos.1 to 5 in O.S.No.31/2008 on the file of the learned Senior Civil Judge,

Rajam against the respondent. The 1st respondent is the plaintiff in that suit whereas the other respondents are the other defendants in that suit. For convenience sake and to avoid confusion, I refer the parties herein after as per their array in the original suit before the trial court.

02.The plaintiff has filed O.S.No.31/2008 for partition of the plaint schedule properties into 24 equal shares and for allotment of 23 shares to her with separate possession and enjoyment and also for mesne profits and costs of the suit. Her case is that the plaint schedule properties are the ancestral properties of late Mr.Sasapu Chiranjeevulu Naidu who is the father of the plaintiff and the 1st defendant through his wife late Mrs.Laxmi and that 4

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during their wedlock the marriage between late Mr.Sasapu Chiranjeevulu

Naidu and the 2nd defendant took place and thereby it became null and void and the children born to them who are defendant Nos.3 to 5 are the illegitimate children of late Mr.Sasapu Chiranjeevulu Naidu who died intestate on 25.09.1998 and Mrs.Laxmi pre-deceased him on 07.07.1985.

So, the plaintiff became a coparcener to late Mr.Sasapu Chiranjeevulu Naidu and the 1st defendant and thereby she is entitled to 1/3rd share in the ancestral joint family properties of late Mr.Sasapu Chiranjeevulu Naidu. The plaintiff further contends that after the death of late Mr.Sasapu Chiranjeevulu Naidu she became entitled to a share in the share of coparcenary properties of late

Mr.Sasapu Chiranjeevulu Naidu. The 6th defendant is the mother of late

Mr.Sasapu Chiranjeevulu Naidu but she died during the pendency of the suit.

The defendant Nos.11 to 14 are the daughters of the deceased 6th defendant and they were brought on record as her legal representatives after her death.

The defendant Nos.2 to 6 have alienated some of the properties to the defendant Nos.6 to 10 prior to filing the suit and some other properties to defendant Nos.15 to 22 during the pendency of the suit and so, the alienations made by them during the pendency of the suit are hit by Section 52 of the Transfer of Property Act.

03. The case of the defendant Nos.1 to 6 as per their written statement filed by the 1st defendant which was adopted by the defendant

Nos.2 to 6 is that when Mrs.Laxmi who is the mother of the plaintiff and the 1st defendant became sick and unable to do anything and unfit to lead sexual life, late Mr.Sasapu Chiranjeevulu Naidu married the 2nd defendant with the consent of Mrs.Laxmi according to their caste custom prevailing in their 5

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community by obtaining the customary divorce under a document and thereby the 2nd defendant and her children who are the defendant Nos.3 to 5 became joint family members and a partition was effected between defendant Nos.1 and 6 as one party and the defendant Nos.2 to 5 as the other party under a registered partition deed dated 01.03.2004 and the properties were divided among them and it was acted upon and each of them enjoyed their respective shares of properties and they have alienated some of the properties to the defendant Nos.7 to 10 and defendant Nos.15 to 22 and thereby the alienees have been in possession and enjoyment of their respective properties and that the marriage of the plaintiff was performed by her father by presenting sufficient dowry and gold.

04. The further case of the defendant Nos.2 to 6 is that in

O.S.No.39/2000 filed by the plaintiff, a settlement was taken place before

Lok Adalat according to which the plaintiff received an amount of

Rs.90,000/- towards all her claims in the properties and as well as the death benefits of late Mr.Sasapu Chiranjeevulu Naidu expressing not to claim any share in the properties and the 2nd defendant agreed to receive pension.

During her life time the 6th defendant had executed a registered Will dated 03.03.2004 in a sound and disposing state of mind which was duly attested and she also executed a registered settlement deed in favour of the 1st defendant out of her love and affection and the plaintiff knows about all those documents and thereby she is not entitled to any shares in the properties.

05.The case of the defendant Nos.7 to 10 and 15 to 22 is that they have purchased the properties for valuable consideration under registered 6

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documents and were delivered possession of their respective properties purchased by them and they have been in possession and enjoyment of those properties and the plaintiff is not entitled for any shares in those properties.

The defendant Nos.11 to 14 who are the legal representatives of the deceased 6th defendant have taken similar contentions which were taken by the defendant Nos.1 to 6. All the defendants have requested to dismiss the suit with costs.

06. Basing on the above contentions of the parties, the trial court has framed the following eight issues and settled for trial:

(1) Whether Sasapu Chiranjeevulu married Lakshmi as per Hindu Law and caste custom long back?

(2) Whether the 2nd defendant is the legally wedded wife of S.Chiranjeevulu and belongs to Regidi Amadalavalasa village?

(3) Whether the defendants 3 to 5 are not the legitimate children of Sasapu Chiranjeevulu?

(4) Whether the suit schedule properties are the ancestral properties of plaintiff and hence plaintiff, D.1, late Chiranjeevulu are entitled to 1/3rd share?

(5) Whether the D.3 to D.5 are not entitled to any share in the ancestral properties as per Sec.16(3) of Hindu Marriage Act?

(6) Whether the plaint A to D schedule properties into 18 equal shares and to allot 7 such shares to the plaintiff after ejecting the defendants from there and put the plaintiff is in separate possession after converting the joint possession?

(7) Whether the plaintiff is entitled for mesne profits from the date of suit till the date of allotment and delivery of the property through the plaintiff?

(8) To what relief?

08. The trial court has framed the following three additional issues as well and settled for trial:

(1) Whether the registered will dated 03.03.2004 is true, valid and binding on the plaintiff?

(2) Whether alienations made by D.1 to D.5 during the pendency of suit in favour of D.15 to D.22 is operates as lispendence?

(3) To what relief?

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09.In order to prove the case of the plaintiff, she herself got examined as P.W.1 and got marked her wedding card as Ex.A.1. On the other hand, the defendant Nos.1 and 2 got themselves examined as D.W.1 and D.W.2 respectively and got examined one Mr.Allena Rajasekhar who is the scribe of the registered partition deed dated 01.03.2004, registered Will

dated 03.03.2004 and the registered settlement deed dated 06.01.2006 as

D.W.3 and Mr.Runku Simhadri Naidu who is the elder brother of the 2nd defendant as D.W.4 and Mrs.Sasapu Sudharani who is the wife of the 1st defendant as D.W.5 and got marked Ex.B.1 to Ex.B.15 documents.

10.The trial court having heard the arguments of both sides and appreciated the evidence on record has pronounced a judgment dated 18.08.2017 preliminarily decreeing the suit with costs by allotting 7/36 shares each to the plaintiff and the 1st defendant and 1/6th share each to the defendant Nos.3 to 5 and 1/36th share each to the defendant Nos.11 to 14 which is followed by passing a preliminary decree. Challenging the same, the present appeal has been filed.

11. In the grounds of appeal, the defendant Nos.2 to 5 have contended that the decree and judgment passed by the trial court are contrary to law, weight of evidence and probabilities of the case and that the trial court ought to have dismissed the suit instead of decreeing the same and that the trial court which has rightly decided issue Nos.1 to 5 as per the evidence on record, ought to have decided the other issues against the plaintiff by holding that the plaintiff is not entitled either to claim for any share or to allot any share in the properties and also not entitled for mesne profits because already a partition of the properties was effected as per the 8

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registered partition deed dated 01.03.2004 and that the trial court has failed to appreciate the latest legal position that the daughter has no right to claim partition of the properties of her father after his death. According to the defendant Nos.2 to 5 the trial court has not evaluated the evidence adduced by the defendants properly and that the suit is not maintainable under law.

They have prayed for setting aside the decree passed by the trial court and to dismiss the suit with costs throughout by allowing the appeal.

12.I have heard the learned counsel for both sides and perused the case record and the evidence on record both oral and documentary and also the decree and judgment passed by the trial court and the grounds of appeal filed by the defendant Nos.2 to 5.

13.Now, the points that arise for determination are as follows:

(1) Whether the plaintiff is entitled for partition of the plaint schedule properties and for allotment of shares therein according to law?

(2) Whether the preliminary decree and judgment passed by the trial court are correct according to the evidence on record and law?

14.POINT No.1 :-

The admitted facts in this case are that late Mr.Sasapu

Chiranjeevulu Naidu died intestate on 25.09.1998 and his wife who is the mother of the plaintiff and the 1st defendant pre-deceased him on 07.07.1985.

The 2nd defendant begot the defendant Nos.3 to 5 through him. The 6th defendant who is the mother of late Mr.Sasapu Chiranjeevulu Naidu died on 12.03.2010 during pendency of the suit. Originally the plaint schedule properties are the ancestral properties of late Mr.Sasapu Chiranjeevulu

Naidu and the defendant Nos.2 to 6 having effected partition of those properties under a registered partition deed dated 01.03.2004 had alienated 9

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some of those properties to defendant Nos.7 to 10 prior to filing the suit and alienated some of the properties to defendant Nos.15 to 22 during pendency of the suit. As per the settlement that took place before Lok Adalat in

O.S.No.39/2000 the plaintiff was paid an amount of Rs.90,000/- out of the

death benefits of late Mr.Sasapu Chiranjeevulu Naidu because he died in harness while working as a Circle Inspector in Excise Department and according to that settlement, the 2nd defendant has been receiving pension and the 1st defendant was provided a job on compassionate grounds.

15. The main dispute lies between the parties regarding the validity of the marriage between late Mr.Sasapu Chiranjeevulu Naidu and the 2nd defendant. According to the defendant Nos.1 to 6 there was a customary divorce that took place between late Mr.Sasapu Chiranjeevulu Naidu and his wife Mrs.Laxmi in the year 1977 prior to his marriage with the 2nd defendant in 1978. So, the burden lies on the defendant Nos.2 to 6 to prove not only that a valid divorce was taken place between late Mr.Sasapu Chiranjeevulu

Naidu and Mrs.Laxmi but also that it is valid according to their custom prevailing in their community. In this connection, there is no documentary evidence adduced by the defendant Nos.2 to 5. Even though D.W.4 in his cross-examination has categorically deposed that a divorce deed was executed in respect of the customary divorce that took place between late

Mr.Sasapu Chiranjeevulu Naidu and Mrs.Laxmi which was drafted at the office of Sub Registrar, Rajam and was registered but it has not been exhibited before the trial court. When there is a document evidencing such a customary divorce, it must be proved only by exhibiting that document and oral evidence is not sufficient to prove the same. Even otherwise there is 10

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neither cogent nor clinching oral evidence regarding that alleged customary divorce. D.W.1 and D.W.5 are not the direct witnesses to the alleged customary divorce. D.W.4 is the elder brother of D.W.2 and they are claiming benefit out of the alleged customary divorce and even according to them, such a divorce was taken place prior to the marriage between D.W.2 and late Mr.Sasapu Chiranjeevulu Naidu. So the oral evidence of D.W.1,

D.W.2, D.W.4 and D.W.5 is not at all sufficient to consider and believe that there was such a customary divorce taken place between late Mr.Sasapu

Chiranjeevulu Naidu and Mrs.Laxmi and that such divorce was prevailing in their community and that it is valid according to law. Since the marriage between D.W.2 and late Mr.Sasapu Chiranjeevulu Naidu was taken place during the life time of Mrs.Laxmi and as the defendant Nos.1 to 5 have failed to prove that there was customary divorce taken place between late

Mr.Sasapu Chiranjeevulu Naidu and Mrs.Laxmi and that it is valid according to law, it must be considered that the marriage between late

Mr.Sasapu Chiranjeevulu Naidu and D.W.2 is a void marriage as rightly held by the trial court. So because the defendant Nos.3 to 5 were born to the 2nd defendant out of her void marriage with late Mr.Sasapu Chiranjeevulu Naidu the defendant Nos.3 to 5 would not become coparceners and so they cannot claim shares in the ancestral joint family properties of late Mr.Sasapu

Chiranjeevulu Naidu, the plaintiff and the 1st defendant. But no doubt they are entitled to shares in the separate property of their father out of his share in the ancestral joint family properties according to Section 16(3) of the

Hindu marriage Act, 1955. The trial court has rightly observed this aspect in its judgment.

11

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16. Ex.B.1 the registered partition deed dated 01.03.2004 supports the contention of the defendant Nos.1 to 6 that they effected a partition of the plaint schedule properties. Because this partition was taken place prior to 20.12.2004 according to Section 6 (5) of the Hindu Succession Amended

Act 39/2005 which came into force with effect from 09.09.2005, the plaintiff is not entitled to claim any share in the coparcenary joint family properties.

17. The learned counsel for both sides have relied upon a recent decision in Vineeta Sharma Vs. Rakesh Sharma reported in 2020 SAR (Civil) 1030 in which at para 129 even though it is clearly decided that since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 09.09.2005, but further clearly decided that the rights can be claimed by the daughter born earlier with effect from 09.09.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004. So even in view of that decision, the plaintiff is not entitled according to Section 6 of the Hindu Succession Amended Act 39/2005 for allotment of any share in the coparcenary joint family properties.

18.But the Hindu Succession Amended Act 39/2005 is only with effect from 09.09.2005 but prior to that Section 29A of the Hindu Succession

Act 1956 was in force since 05.09.1985. Even though the amendment to

Section 6 of the Hindu Succession Act as amended by the Act 39/2005 supersedes the Andhra Pradesh State amendment of Section 29-A of Hindu

Succession Act, 1956 but it is only from 09.09.2005 onwards and not prior to that date. So, the Central amendment to Section 6 of the Hindu 12

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Succession Act as amended by the Act 39/2005 does not take away the effect of Andhra Pradesh Amendment Section 29A of the Hindu Succession Act, 1956 for the period between 05.09.1985 and 08.09.2005. According to that provision the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the rights to claim by survivorship. According to Section 29A(ii) of the

Hindu Succession Act, 1956 as amended in Andhra Pradesh State at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son.

Admittedly as per Ex.A.1 wedding card, the marriage of the plaintiff was taken place on 24.08.1994 which is much subsequent to 05.09.1985. So, according to the said provision, the plaintiff is entitled to a share equally with the 1st defendant who is the son of late Mr.Sasapu Chiranjeevulu Naidu in the coparcenary joint family properties.

19. In the partition that took place among the defendant Nos.1 to 6 under Ex.B.1 partition deed admittedly no share in the properties was allotted to the plaintiff. The plaintiff is not a party to the said partition under that partition deed. Irrespective of whether or not the plaintiff had knowledge about the partition under Ex.B.1 partition deed, because she was not allotted any share in the properties, the said partition deed under Ex.B.1 is neither valid nor binding on the plaintiff so far as her legitimate share in the joint family properties. So far as the payment of Rs.90,000/- to the plaintiff as per the settlement before Lok Adalat in O.S.No.39/2000 is concerned, it is only regarding the death benefits of late Mr.Sasapu 13

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Chiranjeevulu Naidu but not regarding the immoveable properties which are the plaint schedule properties. There is no document to show that the said payment of Rs.90,000/- was paid to the plaintiff in lieu of her share in the joint family properties as contended by the defendant Nos.1 to 6. Even though any presentation of cash and gold was made at the time of marriage of the plaintiff, it cannot be considered that the same was in lieu of her share in the joint family properties. There is no document in that regard. So, the contention of the defendant Nos.1 to 6 in that regard cannot be considered and accepted.

20.According to Sec.29A of the Hindu Succession Act, 1956 as amended in Andhra Pradesh State because the marriage of the plaintiff was held on 24.08.1994 subsequent to 05.09.1985, as I have already stated, the plaintiff is entitled to a share in the coparcenary joint family properties of late Mr.Sasapu Chiranjeevulu Naidu along with him and the 1st defendant.

So, she is entitled to 1/3rd share in the plaint schedule properties as a coparcener. Because admittedly late Mr.Sasapu Chiranjeevulu Naidu died intestate on 25.09.1998, according to Section 8 of the Hindu Succession Act, 1956 the plaintiff is entitled to a share in the share of late Mr.Sasapu

Chiranjeevulu Naidu out of their coparcenary joint family properties being daughter and as class I legal heir along with the 1st defendant being son and the deceased 6th defendant being mother under that provision of law and even the defendant Nos.3 to 5 are also entitled to equal shares with them according to Section 16(3) of the Hindu Marriage Act, 1955. The trial court has rightly observed all these aspects in its judgment and so the same cannot be found fault with. So far as the quantum of shares allotted to the parties in 14

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that judgment and preliminary decree neither party raised any dispute in this appeal. So, it is not necessary to discuss about that aspect in this appeal.

21.So far as the alienations made by the defendant Nos.1 to 6 in favour of the defendant Nos.7 to 10 prior to filing the suit and in favour of the defendant Nos.15 to 22 during the pendency of the suit are concerned, they are not valid so far as the share of the plaintiff in the plaint schedule properties. However because the defendant Nos.1 to 6 have also got shares in the plaint schedule properties equities can be worked out by adjusting to their shares of those alienations in the final decree proceedings. In view of my above discussion and particularly the legal aspects involved in the matter, I feel it not necessary to discuss about other aspects and the evidence adduced by the parties. No other grounds are raised in the appeal than which

I have discussed earlier.

22. In the light of my above discussion, I answer this point holding that the plaintiff is entitled to partition of the plaint schedule properties and allotment of shares therein as decided by the trial court in its judgment and the preliminary decree passed by it.

23.POINT No.2 :-

In the light of my above discussion in point No.1 and observations made therein, I hold that the preliminary decree and judgment passed by the trial court are correct basing on the evidence on record and according to law and that the observations made by the trial court in its judgment regarding several aspects are also correct and that there is no need for this court to interfere with the same. Accordingly, I answer this point.

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24.In view of my findings on the earlier discussed and decided point Nos.1 and 2, I hold that the appeal is not maintainable and liable to be dismissed with costs and that the judgment and preliminary decree dated 18.08.2017 passed by the trial court in O.S.No.31/2008 deserve confirmation in all respects.

25.In the result, the appeal is dismissed with costs confirming the decree and judgment dated 18.08.2017 in O.S.No.31/2008 passed by the learned Senior Civil Judge, Rajam.

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

pronounced by me in open court, this the 17th day of February, 2021.

Sd/- N.Ramesh Babu,

IV Additional District Judge, Srikakulam. Copy to the Senior Civil Judge, Rajam.

IN THE COURT OF IV ADDITIONAL DISTRICT JUDGE,

SRIKAKULAM.

Present: - N.Ramesh Babu,

IV Additional District Judge.

Monday, this the 22nd day of February, 2021

Appeal Suit.No.45 of 2019

Between:-

1. Simma Karuvodu, S/o late Chinnappadu, Hindu, aged about 53 years, Hindu, cultivation, r/at Singupuram village, Srikakulam rural Mandalam and District.

2. Simma Hatakesam, S/o Karuvodu, Hindu, aged about 34 years, Hindu, rest do.,

3. Simma Ramana, S/o JKaruvodu (Died).

4. Simma Adinarayana, S/o late Kondayya, Hindu, aged about 38 years, Hindu, rest do., …. Appellants/Defendants. And:- Simma Narasayya, S/o late Mukhalingam, Hindu, aged about 70 years, employee, residing at Thangivanipeta, Near Peddapadu, Srikakulam rural Mandalam, Srikakulam District.

..Respondent/Plaintiff.

On appeal from the judgment and decree dated 08.06.2018 in

O.S.No.10/2010 on the file of Additional Senior Civil Judge, Srikakulam.

Between:- Simma Narasayya. …. Plaintiff. And:-

1. Simma Karuvodu.

2. Simma Hatakesam.

3. Simma Ramana.

4. Simma Adinarayana. . … Defendants.

This appeal coming on 03.02.2021 for final hearing before me in the presence of Sri P.Murali Krishna and P.Madhavi, Advocates for appellants/defendants and of Sri T.Sivaprasada Rao, Advocate for respondent/plaintiff and having heard both sides and having stood over till this day for consideration, this Court made the following:-

J U D G M E N T

This appeal suit has been filed by the appellants who are the defendants in

O.S.No.10/2020 on the file of the learned Additional Senior Civil Judge,

Srikakulam against the respondent who is the plaintiff in that suit. For convenience sake, I refer the parties herein after as per their array in the original suit before the trial court.

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02. The plaintiff has filed O.S.No.10/2010 for the relief of permanent injunction in respect of an extent of Ac.0.57 cents situated in S.No.349/18 of

Singupuram village in Srikakulam Mandal of Srikakulam District which I herein after refer as the schedule property against the defendants restraining them, their men, agents and supporters etc., from in any way interfering with his peaceful possession and enjoyment over the schedule property and for costs of the suit. His case as set out in the plaint is that he purchased the schedule property under a registered sale deed dated 10.09.2008 in document No.4697 from Mr.Simma

Simmayya and others and since then, he has been in possession and enjoyment over the same and that due to some political rivalry, the defendants bore grudge against him and tried to trespass into the schedule land without any manner of right, but with the help of the neighbouring landlords, he could obstruct them, but they proclaimed in the village that they would trespass into the schedule land and occupy the same forcibly.

03. The case of the defendants as per the written statement filed by the 1st defendant which was adopted by the other defendants is that originally the plaint schedule property belonged to Mr.Simma Kistappadu and in the oral partition that took place among his sons, the schedule property fell to the share of

Mr.Chinnappadu who is the father of the 1st defendant and in the oral partition that took place among the brothers of the 1st defendant, during the life time of

Mr.Chinnappadu itself, the schedule property fell to the share of 1st defendant and since then, he has been enjoying the said property but when he was attending agricultural operations of green gram crop in the 1st week of December, 2009, the plaintiff without any manner of right had tried to interfere with the same and tried to dispossess the 1st defendant by proclaiming that they had purchased the schedule property from 3rd parties, but the 1st defendant could resist the plaintiff from his illegal acts and that the plaintiff has proclaimed to dispossess the 1st 3

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defendant from the schedule property and that the plaintiff is highly rich and politically influenced having money and muscle power. It is his further case that he filed a suit before the learned Additional Senior Civil Judge, Srikakulam for grant of permanent injunction in which status-quo order was passed on 30.12.2009 in I.A.No.1138/2009 in O.S.No.458/2009 which is pending. The plaintiff having suppressed about the same filed the present suit with false allegations. The defendants have requested the court to dismiss the suit with costs.

04. Basing on the above contentions of the parties, the trial court has framed the following two issues and settled for trial:

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

(2) To what relief?

05.In order to prove the case of the plaintiff, he himself got examined as

P.W.1 and got examined 04 other witnesses as P.W.2 to P.W.5 and got marked

Ex.A.1 to Ex.A.3 documents on his behalf. On the other hand, the defendant Nos.1 and 4 got themselves examined as D.W.1 and D.W.2 respectively but exhibited no documents on their behalf.

06. The trial court having heard the arguments of both sides and analyzed the evidence on record has pronounced a judgment dated 08.06.2018 by dismissing the suit with costs granting the relief of permanent injunction against the defendants which was followed by a decree. Challenging the same, the present civil appeal has been filed.

07.The case of the appellants as per the appeal grounds is that the trial court ought to have dismissed the suit instead of decreeing the same and that the trial court has not scrutinized the evidence on record in right perspective and the trial court has not considered the facts and circumstances of the case and the pleadings of the defendants and the trial court has not considered the suit in 4

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O.S.No.458/2009 filed by the 1st defendant and that the decree and judgment

passed by the trial court are erroneous and not correct according to law.

08.I have heard the learned counsel for both sides and perused the case record and the evidence on record both oral and documentary.

09.Now, the points that arise for determination are as follows:

(1) Whether the plaintiff was in possession and enjoyment

of the plaint schedule property as on the date of filing the suit?

(2) Whether the plaintiff is entitled to grant the relief of permanent

injunction as prayed for in the plaint?

(3) Whether the decree and judgment passed by the trial court

are correct basing on the evidence on record and according to law?

10.POINT Nos.1 and 2:-

These two points require common discussion to avoid repetition of the facts and circumstances and evidence in the discussion. So, these two points are taken together for discussion.

The evidence of P.W.1 on one side and the evidence of D.W.1 and

D.W.2 on the other side are nothing but oath against oath because they are parties to the suit. They have filed their respective affidavits in the form of their evidence in examination in chief stating all the material facts which were stated in their respective pleadings. P.W.2 who is the neighbouring land owner of the plaint schedule property and P.W.3 who is one of the attestors of the sale deed dated 10.09.2008 under which the plaintiff has purchased the schedule property which was marked as Ex.A.1 and P.W.4 and P.W.5 who are the neighbouring land owners of the schedule property have filed their respective affidavits in the form of their evidence in examination in chief supporting the case of the plaintiff. All these witnesses were cross-examined. The evidence of P.W.2 to P.W.5 duly corroborates the evidence of P.W.1 on all material aspects regarding the plaint schedule property. Their evidence shows that the plaintiff has purchased the schedule 5

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property from Mr.Simma Narasayya under a registered sale deed which is Ex.A.1.

The contents of Ex.A.1 duly corroborate the evidence of P.W.1 regarding his purchase of the schedule property. The adangal for Fasali 1419 which has been marked as Ex.A.2 shows that the plaintiff was possessing and enjoying the plaint schedule property during that fasali which correspondence to the year 2009.

Ex.A.3 which is the pattadar passbook issued to the plaintiff contains an entry regarding the schedule property as per the sale deed under Ex.A.1. Ex.A.2 and

Ex.A.3 documents show that the sale deed under Ex.A.1 was acted upon. Ex.A.1 contains the delivery of possession of the schedule property to the plaintiff. The plaintiff has purchased the schedule property under Ex.A.1 on 10.09.2008 and soon after the same in 2009 itself the possession and enjoyment of the plaint schedule property of the plaintiff has been noted down in the revenue records which is under Ex.A.2. Ex.A.2 and Ex.A.3 documents duly corroborate the evidence of P.W.1 to P.W.5 to the effect that the plaintiff has been in possession and enjoyment of the schedule property and particularly that he was in possession and enjoyment of the schedule property by the time of filing the suit which was filed in the year 2010.

11.In a suit for the relief of permanent injunction which is an equitable and discretionary relief, the burden always lies on the plaintiff to show that he was in possession and enjoyment of the schedule property as on the date of filing the suit. It is not necessary for the defendant either to prove his case or even to disprove the case of the plaintiff. The plaintiff cannot depend upon the weakness of the defendant. Even if the defendant fails either to prove to his case or to disprove the case of the plaintiff, the plaintiff is not entitled to grant the relief of permanent injunction. Irrespective of whether the defendant either proved his case or disproved the case of the plaintiff, it is obligatory on the part of the plaintiff to prove his case positively by adducing cogent and clinching evidence to prove that 6

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he was in possession and enjoyment of the plaint schedule property as on the date of filing the suit to make himself entitled for the relief of permanent injunction and otherwise the case of the plaintiff fails and is not entitled for grant of the relief of permanent injunction.

12.In the present case except claiming that the plaint schedule property fell to the share of Mr.Chinnappadu who is one of the three sons of Mr.Kistappadu who is the original owner of the plaint schedule property and that in the partition among the brothers of the 1st defendant, the schedule property fell to the share of the 1st defendant, no document is exhibited by the defendants respect of the schedule property. It is not their case that no such document was existing or issued in favour of the 1st defendant. In his cross-examination D.W.1 has categorically stated that his father was issued pass books for the properties which fell to the share of his father and that after the death of his father about 20 years back the properties of his father were incorporated in his name and that he has got pass book and title deed in his name and that the revenue record shows that his name is mutated for that property and further he admitted that he did not file his pass books or present revenue records standing in his name before the court and further he asserted that he would not file any such documents to show how much property he is having. Regarding this evidence, the observation of the trial court is that an adverse inference under section 114 (g) of the Indian Evidence Act could be drawn to the effect that the evidence which could be and is not produced, if produced be unfavorable to the person who withholds it. So, in the present case the 1st defendant has intentionally withheld the documents relating to the schedule property in spite of having those documents with him and so certainly an adverse inference under that provision of law can be drawn against him. The defendants have not at all placed any document to prove their contentions raised in their pleadings and evidence. The oral evidence of D.W.1 and D.W.2 is not at all 7

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sufficient either to disbelieve the evidence of P.W.1 to P.W.5 and the documents under Ex.A.1 to Ex.A.3 or to reject the case of the plaintiff.

13.When the name of the plaintiff has been recorded in the revenue records, it means that the name of his vendor was removed for entering the name of the plaintiff in the revenue records in respect of the schedule property. Unless the name of his vendor was existing in the revenue records in respect of the schedule property, the name of the plaintiff would not have been entered into the revenue records by removing the name of his vendor. If somebody’s name was existing in the revenue record than his vendor’s name in respect of the plaint schedule property, certainly the name of the plaintiff would not have been entered into the revenue records in respect of the schedule property without giving notice to the other person whose name was existing in the revenue records. The learned counsel for the defendants has contended that without issuing notice to the 1st defendant, the name of the plaintiff was entered into the revenue records and the pattadar pass book under Ex.A.3 was issued in favour of the plaintiff in respect of the plaint schedule property and so it is not valid. The learned counsel for the defendants has relied upon a decision in D.Suidhakar Reddy Vs. Joint Collector reported in 2021 (1) ALD 238 (TS) in support of his contention in this regard. But this contention cannot be accepted because there is no record to show that firstly the name of the 1st defendant was entered into the revenue records in respect of the plaint schedule property and that by removing the name of the 1st defendant, the name of the plaintiff was entered into the revenue records in respect of the schedule property and in that way the pattadar pass book under Ex.A.3 was issued in favour of the plaintiff. Notice to the 1st defendant for entering of name of the plaintiff into the revenue records in respect of the plaint schedule property could be issued only if the name of the 1st defendant was existing in the revenue records in respect of the schedule property, otherwise no notice would be issued to the 1st 8

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defendant. The contention of the learned counsel for the 1st defendant in this regard shows that no notice was issued to the 1st defendant before entering the name of the plaintiff into the revenue records in respect of the schedule property.

It means that the name of the 1st defendant was not existing in the revenue records in respect of the schedule property. Even otherwise if the 1st defendant is aggrieved of issuing pattadar pass book under Ex.A.3 in favour of the plaintiff and entering the name of the plaintiff into the revenue records in respect of the schedule property, it is for the 1st defendant to take steps for cancellation of the pattadar pass book under Ex.A.3. Without taking such steps his mere contention that Ex.A.3 is not valid because no notice was issued to him is neither correct nor can it be accepted. Since the dispute in the suit is regarding immoveable property, mere oral evidence of D.W.1 and D.W.2 is not sufficient to believe the case of the defendants and it is necessary for the defendants to exhibit documents in support of their contentions. Since the defendants have not exhibited any documents in support of their contentions, their case and evidence cannot be believed. The decision relied upon by the learned counsel for the defendants in this regard is in a writ petition filed challenging the orders passed by revenue officials under the provisions of A.P.Rights in Land and Pattadar Pass Books Act, 1971 when one of the parties of the case had challenged the orders passed by the revenue officials.

But the defendants herein did not challenge issuing pattadar pass book in respect of the schedule property in favour of the plaintiff. So, the cited decision cannot be applied in the present case.

14.Considering the totality of the facts and circumstances of the case and the evidence on record both oral and documentary particularly the documents under Ex.A.1 to Ex.A.3 it can be considered and believed that the plaintiff is able to establish that he was in possession and enjoyment of the schedule property as on the date of filing the suit. The contentions raised by the defendants clearly 9

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show that the defendants were trying to interfere with the peaceful possession and enjoyment of the plaintiff over the schedule property and so it is necessary to grant the relief of permanent injunction in favour of the plaintiff and that the plaintiff is entitled to grant that relief as prayed for in the plaint.

15.The learned counsel for the defendants has relied upon a decision in

Jose Vs. Johnson in Civil Appeal No.1892/2020 of the Honourable Supreme

Court of India dated 02.03.2020 in which even though the trial court has passed a decree for permanent injunction but the 1st appellate court having set aside that decree had remanded the matter for fresh disposal to the trial court because and

I.A.No.349/2013 under Order 41 Rule 27 of the Code of Civil Procedure was filed for production of a certified copy of the partition deed bearing No.651/1964. In the appeal filed against that remanded order the Honourable High Court has restored the judgment of the trial court by allowing the appeal and set aside the remand order of the 1st appellate court. The Honourable Supreme Court in the cited case has restored the order of the 1st appellate court by setting aside the judgment dated 14.11.2014 passed by the Honourable High Court of Kerala in

FAO (RO) No.229/2014. The cited case was decided basing on the facts and circumstances of that case. There is no preposition of law laid down in that decision. So that decision cannot be applied to the present case.

16.From the above discussion, I hold on the point Nos.1 and 2 that the plaintiff was in possession and enjoyment of the plaint schedule property as on the date of filing the suit and that he is entitled to grant relief of permanent injunction as prayed for in the plaint. Accordingly, I answer these two points in favour of the plaintiff and against the defendants.

17.POINT No.3 :-

In view of my observations and findings on the earlier discussed and decided point Nos.1 and 2, I hold that the decree and judgment passed by the trial 10

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court are correct basing on the evidence on record and according to law and that there is no need for this court to interfere with the same and that they deserve confirmation in all respects. Accordingly I answer this point.

18.In view of my findings on the point Nos.1 to 3, I hold that the appeal is not maintainable and liable to be dismissed by confirming the decree and judgment passed by the trial court.

19.In the result, the appeal is dismissed with costs confirming the decree and judgment dated 08.06.2018 in O.S.No.10/2010 passed by the learned

Additional Senior Civil Judge, Srikakulam.

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

pronounced by me in open court, this the 22nd day of February, 2021.

Sd/-N.Ramesh Babu,

IV Additional District Judge, Srikakulam. Copy to the Additional Senior Civil Judge, Srikakulam.