N.ramesh Naidu

1

IN THE COURT OF JUNIOR CIVIL JUDGE: MADAKASIRA

PRESENT: SRI N.RAMESH NAIDU,

JUNIOR CIVIL JUDGE

MONDAY, THE FIFTH DAY OF FEBRUARY,

TWO THOUSAND EIGHTEEN

ORIGINAL SUIT No.61 OF 2012

BETWEEN: Talige Rangappa S/o Dasappa, Age:about 65 years, Hindu, Cultivation, R/o Madhudhi Gollahatti Village, H/o Madhudhi, Agali Mandal. …PLAINTIFF

AND

1.Smt Bhagyamma W/o Late Mahalingappa, Age:about 32 years,

2.Chithanna S/o Janagappa, Age:about 60 years,

3.Jairam S/o Thimmappa, Age:about 45 years,

4.Janagappa S/o Dasappa, Age:about 35 years, All are Hindus, Agriculturists, R/o Madhudhi Gollahatti Village, H/o Madhudhi, Agali Mandal …DEFENDANTS

This suit coming up before me on 22-01-2018 for hearing in the presence of Sri P.E.Lokesh and Smt B.C.Kalpana, Advocates for the Plaintiff, Sri M.G.Gopal Rao, Advocate for Defendant 1, 3 and 4 and the suit against 2 nd Defendant is abated and having stood over for consideration, till this day, this Court, delivered the following :-

:J U D G M E N T:

1.The plaintiff claims for perpetual injunction restraining the defendants and their men from interfering with his peaceful possession and enjoyment over the suit schedule properties.

2.The 2nd defendant, by way of written statement has resisted the suit, which was adopted by the defendants 1, 3 and 4. But, suit against the 2nd defendant was abated on 27-02-2017.

3.The first and foremost case of plaintiff is that the suit schedule properties are the ancestral joint family properties of one Late Dasanna, who was survived by the plaintiff and one Eeranna, who have succeeded the suit schedule properties and that subsequently about 15 years ago they have 2 orally partitioned the suit schedule properties wherein the suit schedule properties have been fallen to the share of plaintiff and ever since he has been enjoying the suit schedule properties and that the revenue authorities in recognition of right, title and possession of the plaintiff over the suit schedule properties had issued pattadar pass book and title deed in his favour and that thereafter on 24-08-2007 he has mortgaged the suit schedule properties before the Primary Agricultural Cooperative Society, Agali and had obtained a loan by pledging his title deed. The defendants who are utter strangers to the plaintiff and who have no manner of right, title or possession over the suit schedule properties requested the plaintiff to convey those properties in their favour and that when he had refused to accede that request, there arose some disputes between him and the defendants, who are powerful and influential persons having large support of politicians and rowdy elements and that thereby the defendants have been proclaiming in the village to dispossess him from the suit schedule properties and therefore, he got issued a legal notice to the defendants but they did not stop interfering with his possession over the suit schedule properties and that therefore he was constrained to file the suit claiming for perpetual injunction.

4.Whereas the contest of defendants, as could be seen from the averments of written statement of 2nd defendant is that the Government is the true owner of the properties covered under item nos. 2 & 7 of the suit schedule properties. His father – Jangamappa, during his life time had been in possession and enjoyment of the properties covered under items 2 & 7 of the suit schedule properties. After his demise, his 2 sons viz. Dasappa, who is the father of 4th defendant and he (2nd defendant) had succeeded those properties and have been enjoying those properties and that their names have also been mutated in the revenue records.

5.The 1st defendant is daughter-in-law of Dasappa. The 4th defendant is the 3 son of Dasappa. The 2nd defendant is the senior paternal uncle of 4th defendant. The 3rd defendant has no nexus with the family of defendants 1, 2 and 4.

6.The further contest of defendants is that the total extent of property covered under item No.2 of the suit schedule properties is Ac.1-52 cents, which was in possession and enjoyment of the plaintiff, his brother – Eranna and

Dasappa. Similarly the total extent of property covered under item No.7 of the suit schedule properties is Ac.1-53 cents, wherein the plaintiff, his brother – Eranna have been in possession and enjoyment of Ac.0-53 cents and that the 2nd defendant has been in possession and enjoyment of Ac.1-00 cents. The plaintiff has no manner of right, title or possession over the entire extents of properties covered under items 2 & 7 of the suit schedule properties.

7.Lastly, the contest of defendants is that the Court Fee paid is incorrect and that the plaintiffs suit for injunction simplicitor without claiming for relief of declaration is not maintainable and that therefore the suit was sought to be dismissed.

8.In view of the rival contentions referred above, an opportunity was given to the warring parties to avail the benefit of Section 89 of Civil Procedure

Code. But when they failed to resolve the dispute at the negotiating table, the following issues were settled by my learned predecessor:

1. Whether the plaintiff is entitled for permanent injunction against the defendants?

2. To what relief?

9.During the course of trial, the plaintiff himself was examined as PW-1 and

Exs.A-1 to Ex.A-8 were marked. On behalf of the defendants, DW-1 and

DW-2 were examined and Exs.B-1 to Ex.B-6 were marked.

10. I have heard the arguments of plaintiff and defendants.

11. ISSUE No.1: The specific case of plaintiff is that the suit schedule 4 properties are the ancestral joint family properties of one Late Dasanna, who was survived by the plaintiff and one Eeranna, who have succeeded the suit schedule properties and that subsequently about 15 years ago they have orally partitioned the suit schedule properties wherein the suit schedule properties have been fallen to the share of plaintiff and ever since he has been enjoying the suit schedule properties. Whereas the specific contest of 2nd defendant is that the properties covered under item nos. 2 & 7 of the suit schedule properties as though belonged to the Government, his father –

Jangamappa, during his life time had been in possession and enjoyment of the properties covered under items nos. 2 & 7 of the suit schedule properties and that after his demise, his 2 sons viz. Dasappa (father of 4th defendant) and he (2nd defendant) had succeeded those properties and have been enjoying the suit schedule properties. Now let me see which of these two rivals versions is correct.

12. The burden of proof, in a suit for injunction simplicitor naturally lies on the shoulders of plaintiff so as to establish his possession and enjoyment over the entire suit schedule properties as on the date of filing of the suit.

13. The plaintiff, in order to establish his possession and enjoyment over the suit schedule properties has given evidence as PW-1 and he has reiterating and reaffirming the contents of the plaint and has produced Ex.A-1 to Ex.A- 8 to fortify his contention.

14. Thereafter PW-1 was subjected to cross examination by the learned counsel for the contesting defendants wherein the very opening lines of the cross examination, PW-1 has deposed that he did not know the extents and survey numbers of the properties pertaining to which he filed the suit. PW-1 has also deposed in his cross examination that he did not know whether the suit schedule properties can be located on ground. The answers given by PW-1 in his cross examination have been exposing PW-1 that he does not have any knowledge about the topography of the suit schedule properties apart 5 from it's survey numbers and extents.

15. PW-1 has produced his pattadar pass book covered by Ex.A-1. On examination of Ex.A-1, it appears to have been issued on 05-09-2009 by the

Tahasildar, Agali Mandal in hi favor in respect of items 1 to 7 of the suit schedule properties. The defendants have not been disputing the right, tile and possession of the plaintiff over the the properties covered under items nos.1, 3 to 6 of the suit schedule properties. But, their only contention is that they have been in possession and enjoyment of the properties covered under items 2 & 7 of the suit schedule properties. So, it is needless to ascertain whether the plaintiff has right, title and possession over the items 1, 3 to 6 of the suit schedule properties.

16. It is an admitted fact, as has been admitted by PW-1 in his cross examination that the total extent of property covered under item No.2 of the suit schedule properties is Ac.1-52 cents and that the total extent of property covered under item No.7 of the suit schedule property is Ac.1-53 cents.

17. Ex.A-1–pattadar pass book shows that the plaintiff has been in possession and enjoyment of Ac.0-76 cents out of Ac.1-52 cents in S.No.235-2D, which is no other than the item No.2 of the suit schedule properties. The plaintiff's contention is that the remaining extent of Ac.0-76 cents out of

Ac.1-52 cents in S.No.235-2D has been standing in the name of his brother – Eeranna.

18. PW-1 has produced the certified copy of adangal/pahani for the Fasli 1425, the Gregorian year of which is 2015, issued on 02-04-2016 by the

Tahasildar, Agali Mandal, pertaining to item No.2 of the suit schedule properties and got it marked as EX.A.3 wherein the plaintiff is shown to have been in possession and enjoyment of the property covered by item no.2 of the suit schedule properties i.e Ac.0-76 cents out of Ac.1-52 cents situated in S.No.235-2D of Madhudi Revenue Village with Katha No.762 and that his brother – Eeranna has been shown to be in possession and 6 enjoyment of remaining Ac.0-76 cents out of Ac.1-52 cents in S.No.235-2D with Katha No.763.

19. According to Ex.A-1 – pattadar pass book, the plaintiff is shown to have been in possession of item No.7 of the suit schedule properties i.e. Ac.0-78 cents out of Ac.1-53 cents in S.No.234-3 of Madhudi Revenue Village.

Ex.A-2 is the certified copy of adangal/pahani, for the Fasli 1420, the

Gregorian year of which is 2010 obtained on 02-04-2016 from the

Tahasildar, Agali Mandal. A perusal of Ex.A-2 reveals that the plaintiff has been in possession and enjoyment of item no.7 of the suit schedule property of Ac.0-76 cents out of Ac.1-53 cents situated in S.No.234-3 of Madhudi

Revenue Village with Katha No.762. Likewise the plaintiff's brother –

Eeranna is shown to have been in possession and enjoyment of remaining extent of Ac.0-07 cents out of Ac.1-53 cents in S.No.234-3 of Madhudi

Revenue Village with Patta No.763.

20. The plaintiff has not produced his title deed document, claiming that it was pledged with Primary Agricultural Cooperative Society. The plaintiff did not attempt to summon the authorities of Primary Agricultural Cooperative

Society with whom he is stated to have deposited his title deed document nor produced any scrap of paper showing pledging of title deed document in a bank for obtaining loan.

21. Thus, in the absence of any documentary proof, it cannot be said by any stretch of imagination that the plaintiff has ever obtained any loan from the

Primary Agricultural Cooperative Society by depositing his title deed as otherwise he was in position to produce any convincing documentary evidence. Non production of title deed of the plaintiff pertaining to the suit schedule properties drives this Court to draw an adverse inference that no such title deed has ever been issued in his name by the revenue authorities.

22. The plaintiff has produced the certified copy of adangal/pahani, for the Fasli 1426, the Gregorian year of which is 2016, obtained from Tahasildar, Agali 7

Mandal in respect of item No.2 of suit schedule properties and got it marked as EX.A.4 and a perusal of it would go to show that the plaintiff has been in possession of item no.2 of the suit schedule properties i.e Ac.0-76 cents out of Ac.1-52 cents and that his brother has been in possession and enjoyment of Ac.0-76 cents out of Ac.1-52 cents with Patta Numbers 762 and 763.

23. The first document under Ex.A-5 is adangal/pahani for the Fasli 1422, the

Gregorian year of which is 2012, issued by the Tahasildar, Agali, which discloses that the plaintiff has been in possession and enjoyment of item

No.2 of the suit schedule properties i.e Ac.0-76 cents out of Ac.1-52 cents in S.No.235-2D.

24. The second document covered by Ex.A-5 is adangal/pahani for the Fasli 1422 in respect of item No.1 of the suit schedule properties wherein the plaintiff is shown to have been in possession of Ac.0-68 cents out of Ac.1- 36 cents in S.No.235-1D with Katha No.408. Likewise, the plaintiff is also found to have been in possession of Ac.0-68 cents out of Ac.1-36 cents in

S.No.235-1D.

25. According to Ex.A-1 – Pattadar pass book, the plaintiff has been issued with Patta/Katha No.762, pertaining to items 1 to 7 of the suit schedule properties. But, the second document covered by Ex.A-5 would go to show that the plaintiff has been issued with Patta/Katha Numbers 408 and 762, in respect of item No.1 of the suit schedule properties. Nevertheless, the plaintiff did not produce his patta issued in respect of Katha No.408.

26. The 6th document covered by Ex.A-5 is copy of adangal/pahani, for the

Fasli 1422 in respect of item No.7 of the suit schedule properties wherein the plaintiff and his brother are shown to have been in possession and enjoyment of total extent of Ac.1-53 cents.

27. Ex.A-6 and Ex.A-7 are certificates of encumbrances, issued by the Sub

Registrar, Madakasira on 10-07-2012 and 21-12-2012. The plaintiff has 8 produced EXs.A-6 & A-7 in order to show that the plaintiff has mortgaged the suit schedule properties with Primary Agricultural Cooperative Society on 15-09-2010.

28. Ex.A-8 is the certified extract of 1B namuna dt:11-07-2016, issued by the

Tahasildar, Agali in respect of items 1 to 3 and items 5 to 7.

29. Ex.A-2 and Ex.A-3 have been issued on 02-04-2016 and Ex.A-4 was issued on 11-07-2016. In other words, Ex.A-2 to Ex.A-4 have been issued subsequent to filing of the suit inasmuch as the suit indisputably filed in the year 2012. Therefore, Ex.A-2 to Ex.A-4 being the revenue records obtained subsequent to the filing of the suit, cannot be taken into consideration for deciding the possession and enjoyment of the parties therein as on the date of filing of the suit for the reason that the possibility of parties to obtain revenue records to suit their claim by managing the revenue authorities, could not have been ignored.

30. On the other hand the entries made in the revenue record are not proof of title. Such entries are considered to be the statements for revenue purpose.

If the revenue records are to be ignored, there is no other acceptable evidence to establish the plaintiff's right and title in respect of properties covered under item nos.2 & 7 of the suit schedule properties. Therefore, the documents covered by Exs.A.1 to A.8, being only the revenue records, in the light of my aforementioned discussion does not ipso-facto establish the right and title of the plaintiff.

31. Now let me evaluate the evidence of defendants.

32. The 4th defendant has filed his chief examination affidavit reiterating the averments of the written statement filed by 2nd defendant. DW-1 has produced Ex.B-1 to Ex.B-6 in support of the defendants case.

33. Ex.B-1 is true copy of adangal/pahani for the Fasli 1417 issued by the

Tahasildar, Agali on 12-10-2012 wherein the plaintiff is shown to have been in possession and enjoyment of only Ac.0-26 cents out of Ac.1-53 9 cents in S.No.234-3 i.e. item No.7 of the suit schedule property. Likewise the father of 4th defendant – Dasappa is shown to have been in possession of

Ac.1-00 cents out of Ac.1-53 cents in the S.No.234-3. Similarly, the plaintiff's brother – Erappa (sic) Eeranna is shown to have been in possession and enjoyment of Ac.0-27 cents out of Ac.1-53 cents in

S.No.234-3. The extent of Ac.0-76 cents standing in the name of the plaintiff in Ex.B-1 is found to be rounded off by inserting Ac.0-26 cents without there being initials of issuing authority. So, also the extent of Ac.0- 77 cents available against the name of the plaintiff's brother – Erappa (sic)

Eranna is noticed to have been rounded off by inserting extent only Ac.0-27 cents without there being initials of issuing authority. Further a perusal of

Ex.B-1 would also go to show that the plaintiff has been in possession and enjoyment of only an extent of Ac.0-28 cents out of Ac.1-52 cents in

S.No.235-2, pertaining to item No.2 of the suit schedule properties. The original extent of Ac.1-52 cents made against the plaintiff's name is found to be rounded off by inserting only an extent of Ac.0-28 cents without putting the initials of Mandal Revenue Officer, Agali, who is the issuing authority. There is no explanation offered by the defendants for corrections carried out in Ex.B-1 nor the defendants have attempted to examine the revenue officials, who have issued Ex.B-1 for explaining the reason for interpolations in Ex.B-1.

34. Ex.B-2 is true copy of adangal/pahani for the Fasli 1418 issued by the

Tahasildar, Agali on 12-10-2012 wherein the plaintiff is shown to have been in possession and enjoyment of only Ac.0-26 cents out of Ac.1-53 cents in S.No.234-3 i.e., item No.7 of the suit schedule property. Likewise the father of 4th defendant – Dasappa is shown to have been in possession of

Ac.1-00 cents out of Ac.1-53 cents in the S.No.234-3. Similarly, the plaintiff's brother – Erappa (sic) Eeranna is shown to have been in possession and enjoyment of Ac.0-27 cents out of Ac.1-53 cents in 10

S.No.234-3. The extent of Ac.0-76 cents standing in the name of the plaintiff in Ex.B-2 is found to be rounded off by inserting Ac.0-26 cents without there being initials of issuing authority. So, also the extent of Ac.0- 77 cents available against the name of the plaintiff's brother – Erappa (sic)

Eranna is noticed to have been rounded off by inserting extent only Ac.0-27 cents without there being initials of issuing authority. Further a perusal of

Ex.B-2 would also go to show that the plaintiff has been in possession and enjoyment of only an extent of Ac.0-28 cents out of Ac.1-52 cents in

S.No.235-2, pertaining to item No.2 of the suit schedule properties. The original extent of Ac.1-52 cents made against the plaintiff's name is found to be rounded off by inserting only an extent of Ac.0-28 cents without putting the initials of Mandal Revenue Officer, Agali, who is the issuing authority. There is no explanation offered by the defendants for corrections in Ex.B-2 nor the defendants have attempted to examine the revenue officials who issued Ex.B-2 for explaining the reason for interpolations in

Ex.B-2.

35. Ex.B-3 is true copy of adangal/pahani for the Fasli 1419 issued by the

Tahasildar, Agali on 12-10-2012 wherein the plaintiff is shown to have been in possession and enjoyment of only Ac.0-26 cents out of Ac.1-53 cents in S.No.234-3 i.e. item No.7 of the suit schedule property. Likewise the father of 4th defendant – Dasappa is shown to have been in possession of

Ac.1-00 cents out of Ac.1-53 cents in the S.No.234-3. Similarly, the plaintiff's brother – Erappa (sic) Eeranna is shown to have been in possession and enjoyment of Ac.0-27 cents out of Ac.1-53 cents in

S.No.234-3. The extent of Ac.0-76 cents standing in the name of the plaintiff in Ex.B-2 is found to be rounded off by inserting Ac.0-26 cents without there being initials of issuing authority. So, also the extent of Ac.0- 77 cents available against the name of the plaintiff's brother – Erappa (sic)

Eranna is noticed to have been rounded off by inserting extent only Ac.0-27 11 cents without there being initials of issuing authority. Further a perusal of

Ex.B-3 would also go to show that the plaintiff and his brother – Eranna are shown to have been in possession of Ac.0-76 cents out of Ac.1-52 cents in

S.No.235-2D. The extent of Ac.1-52 cents available against the plaintiff and his brother is rounded off and shown only Ac.0-76 cents without initials of issuing authority.

36. Ex.B-4 is true copy of adangal/pahani for the Fasli 1420 issued by the

Tahasildar, Agali on 12-10-2012 wherein the plaintiff is shown to have been in possession and enjoyment of only Ac.0-26 cents out of Ac.1-53 cents in S.No.234-3 i.e. item No.7 of the suit schedule property. Likewise the father of 4th defendant – Dasappa is shown to have been in possession of

Ac.1-00 cents out of Ac.1-53 cents in the S.No.234-3. Similarly, the plaintiff's brother – Erappa (sic) Eeranna is shown to have been in possession and enjoyment of Ac.0-27 cents out of Ac.1-53 cents in

S.No.234-3. The extent of Ac.0-76 cents standing in the name of the plaintiff in Ex.B-4 is found to be rounded off by inserting Ac.0-26 cents without there being initials of issuing authority. So, also the extent of Ac.0- 77 cents available against the name of the plaintiff's brother – Erappa (sic)

Eranna is noticed to have been rounded off by inserting extent only Ac.0-27 cents without there being initials of issuing authority. Further a perusal of

Ex.B-3 would also go to show that the plaintiff and his brother – Eranna are shown to have been in possession of Ac.0-76 cents out of Ac.1-52 cents in

S.No.235-2D. The extent of Ac.1-52 cents available against the plaintiff and his brother is rounded off and shown only Ac.0-76 cents without initials of issuing authority.

37. Ex.B-5 is true copy of adangal/pahani for the Fasli 1420 issued by the

Tahasildar, Agali on 12-10-2012 wherein the plaintiff is shown to have been in possession and enjoyment of only Ac.0-26 cents out of Ac.1-53 cents in S.No.234-3 i.e., item No.7 of the suit schedule property. Likewise 12 the father of 4th defendant – Dasappa is shown to have been in possession of

Ac.1-00 cents out of Ac.1-53 cents in the S.No.234-3. Similarly, the plaintiff's brother – Erappa (sic) Eeranna is shown to have been in possession and enjoyment of Ac.0-27 cents out of Ac.1-53 cents in

S.No.234-3. The extent of Ac.0-76 cents standing in the name of the plaintiff in Ex.B-5 is found to be rounded off by inserting Ac.0-26 cents without there being initials of issuing authority. So, also the extent of Ac.0- 77 cents available against the name of the plaintiff's brother – Erappa (sic)

Eranna is noticed to have been rounded off by inserting extent only Ac.0-27 cents without there being initials of issuing authority. Further a perusal of

Ex.B-3 would also go to show that the plaintiff and his brother – Eranna are shown to have been in possession of Ac.0-76 cents out of Ac.1-52 cents in

S.No.235-2D. The extent of Ac.1-52 cents available against the plaintiff and his brother is rounded off and shown only Ac.0-76 cents without initials of issuing authority.

38. The contention of the plaintiff is that the defendants inconsonance with the revenue authorities have created Ex.B-1 to Ex.B-5. But, then the defendants have failed to produce certified copies of Ex.B-1 to Ex.B-5. True copies does not take place the certified copies. The defendants without there being any plausible explanation have failed to examine revenue officials nor obtained certified copies of Exs.B-1 to Ex.B-5. So, Ex.B-1 to Ex.B-5, being true copies cannot be substitute the place of certified copies and that therefore EXs.B1 to B.5 cannot be given due weightage or attaches any credence.

39. Ex.B-6 is proceedings of the Revenue Divisional Officer, Penukonda

dt:16-02-2017 issued in D.Dis.No.2720/2015-B. PW-1 during the course of

his cross examination has admitted that the defendants have preferred an appeal challenging the issuing of pattadar pass book in his favour in respect of items nos. 2 and 7 of the suit schedule properties. Thus, Ex.B-6 – 13 revenue appeal is an admitted document. But, the Revenue Divisional

Officer, Penukonda under EX.B6 while remanding the appeal to the

Tahasildar, Agali for conducting fresh enquiry has found that the land of

Ac.1-53 cents situated in S.No.234-3 (item No.7 of the suit schedule properties) and that the property of Ac.1-52 cents in S.No.235-2D (item

No.2 of the suit schedule properties) are Government lands wherein

Dasappa (4th defendant) s/o Jangamappa and that Eranna w/o Chithanna (2nd defendant) were found to have been in possession of properties for several decades and that as verified from those records, no D form patta was issued so far to anybody.

40. So, the findings arrived at by the Revenue Divisional Officer, Penukonda under EX.B6 would clinchingly establishes that the properties covered under items 2 and 7 of the suit schedule properties are Government lands and were not assigned to anyone.

41. The specific contest of the plaintiff is that all the suit schedule properties including the properties covered by items 2 and 7 of the suit schedule properties are his ancestral joint family properties. Nevertheless, there has been no evidence adduced by the plaintiff as to who among his ancestors had originally acquired the properties covered by items nos. 2 and 7 of the suit schedule properties, the nature of acquisition and the person from whom those properties have been acquired. If the revenue records produced by the plaintiff under the cover of Exs.A-1 to Ex.A-8 are ignored, there is no tangible evidence showing the antecedent title of the plaintiff.

42. In the light of Ex.B-6, the properties covered by items 2 and 7 of the suit schedule properties are prima facie found to be Government properties. The plaintiff, notwithstanding the quintessence of his that all the suit schedule properties including the properties covered by items nos. 2 and 7 of the suit schedule properties are his ancestral joint family properties, the plaintiff, while being examined as PW-1 in the course of his cross examination has 14 swiftly changed his version suitably and has deposed that he has produced

D form patta in respect of the properties covered under items 2 and 7 of the suit schedule properties. Further PW.1 has denied to the suggestion that no such D form patta was ever issued in his favour in respect of the properties covered under items 2 and 7 of the suit schedule properties. Both the answers given by PW.1 in his cross-examination goes to show the item nos.2 & 7 of the suit schedule properties are assigned lands said to have assigned to him under D Form Patta. Nevertheless, PW-1 did not produce the alleged D form patta, said to have been issued in his favour by the revenue authorities for and in respect of the properties covered by items 2 and 7 of the suit schedule properties. Therefore, non production of D Form

Patta of plaintiff in respect of the properties covered under item nos. 2 and 7 drives this court to draw an adverse inference that no such D form patta was ever issued in favour of the plaintiff in respect of the properties covered under items 2 and 7 of the suit schedule properties.

43. Even though it is the tall contest of plaintiff that he and his brother -

Eeranna, having succeeded the suit schedule properties from his father -

Dasanna have orally got partitioned the suit schedule properties, about 15 years ago, there is no tangible evidence to prove the factum of oral partition, alleged to have been taken place between the plaintiff and his brother - Eeranna. So, the plea of alleged oral partition is proved to be bereft of any evidence.

44. In a suit for injunction simplicitor, as I have already stated in my earlier discussion, the burden of proof always lies on the shoulders of the plaintiff to establish his his possession and enjoyment over the suit schedule properties. But, the plaintiff by examining himself as PW-1 and producing

Ex.A-1 to Ex.A-8 has failed to establish his possession and enjoyment over the entire suit schedule properties. He who approaches the Court claiming for equitable relief of injunction should have to take recourse to disclose all 15 facts honestly without giving a scope/room for hiding true facts.

45. Here in the case on hand, the plaintiff has deliberately suppressed the fact that the properties covered by items nos. 2 and 7 of the suit schedule properties are Government lands, which suppression certainly amounts to suppression of material facts. Therefore, the plaintiff is non suited for suppression of material facts for seeking equitable relief of injunction.

46. That apart there has been a cloud cast over title of the plaintiff over the entire properties covered under items 2 & 7 of the suit schedule properties and that therefore the plaintiff's suit for injunction simplicitor with out seeking for the relief of his right and tittle over the entire properties covered under items 2 & 7 of the suit schedule properties is not maintainable.

47. Thus, regard had been to the circumstances of the case, the first issue is answered in negative holding that the plaintiff has failed to establish his possession and enjoyment over the entire properties covered under items nos. 1 to 7 of the suit schedule properties.

48. ISSUE No.2: In the result, the plaintiff’s suit claiming for the relief of perpetual injunction has been dismissed without costs.

Typed to my dictation to the Stenographer Grade III, corrected and pronounced by me in the open Court, this the 5 th day of February, Two thousand Eighteen.

JUNIOR CIVIL JUDGE

MADAKASIRA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: PW-1: Rangappa

FOR DEFENDANTS: DW-1: Jangamappa DW-2: Kenchappa

DOCUMENTS MARKED

16

FOR PLAINTIFF: Ex.A-1: Pattadar pass book Ex.A-2: Certified copy of adangal for fasli 1420 Ex.A-3: Certified copy of adangal for fasli 1425 Ex.A-4: Certified copy of adangal for fasli 1426 Ex.A-5: Certified copy of adangal for fasli 1422 Ex.A-6: Encumbrance certificate dt:10-07-2012 Ex.A-7: Encumbrance certificate dt:21-12-2013 Ex.A-8: Certified copy of 1B dt:11-07-2016

FOR DEFENDANTS: Ex.B-1: True copy of adangal for fasli 1417 Ex.B-2: True copy of adangal for fasli 1418 Ex.B-3: True copy of adangal for fasli 1419 Ex.B-4: True copy of adangal for fasli 1420 Ex.B-5: True copy of adangal for fasli 1421 Ex.B-6: Served copy of proceedings issued by the RDO, Penukonda in

R.C.No.2720/2015(B)

J.C.J.

1

IN THE COURT OF JUNIOR CIVIL JUDGE: MADAKASIRA

PRESENT: SRI N.RAMESH NAIDU,

JUNIOR CIVIL JUDGE

FRIDAY, THE SIXTEENTH DAY OF FEBRUARY,

TWO THOUSAND EIGHTEEN

ORIGINAL SUIT No.15 OF 2012

BETWEEN: Gangamma W/o Thurpu Anjaneyulu, Age:58 years, Hindu, Sinecure, Near Market, Somandepalli Village and Mandal, Anantapur District. …PLAINTIFF

AND

1.Lalithamma W/o Late Dasari Narasimhulu, Age:55 years, Hindu, Sinecure, R/o Near Chodamma Temple, Vijayanagar Colony, Melapuram, Hindupur, Anantapur District.

2.Chandakacharla Anantaraju S/o N.Anjaneyulu, Age:53 years, Hindu, Cultivation, R/o Gandhi Nagar, Cheepuleti, Madakasira Taluq.

3.Chandakacharla Ramanjaneyulu S/o N.Anjaneyulu, Age:51 years, Hindu, Cultivation, R/o Chandakacharla, Madakasira Taluq, Anantapur District.

4.Rathnamma W/o V.N.Ramakrishna, Age:48 years, Hindu, Sinecure, Residing at Bramhanagudi, Sadasivanagar, Melapuram, Hindupur, Anantapur District.

5.Santhamma W/o Mayakuntla Sankarappa, Age:46 years, Hindu, Sinecure, R/o Beside D.C.Eswaraiah House, Maruthi Nagar, Somandepalli, Anantapur District.

6.Ramaprasad S/o N.Anjaneyulu, Age:44 years, Hindu, Cultivation, R/o Venkateswara Nagar, Dandu Road, Muddireddypalli, Hindupur, Anantapur District.

7.Govindarajulu S/o N.Anjaneyulu, Age:42 years, Hindu, Cultivation, R/o D.No.26-3-574, C/o Venkatesulu Naik, ASI, Near Melapuram, Hindupur, Anantapur District.

8.N.Vimalaram W/o S.Sreenivasulu, Age:40 years, Hindu, Sinecure, R/o Near D.B.Anjaneyulu Power Looms, Maruthi Nagar, Somandepalli, Anantapur District.

9.Lakshmamma W/o Sanjanna, Age:58 years, Hindu, Sinecure, R/o at C/o Ramanjaneyulu, Chandakacherla, Madakasira Taluq, Anantapur District. (Died by LR 11th defendant)

10. Lakshmidevamma W/o Chandakacherla Anantaraju, Age:40 years, Hindu, R/o Gandhi Nagar, Cheepuleti, Madakasira Taluq.

11. Ramanjinamma W/o Narayana Swamy, Age:46 years, Hindu, Cultivation, Gitanagar, Somandepalli, Anantapur District.

11 th defendant is added as per orders in I.A.No.430 of 2016 dt:04-01-

2017 …DEFENDANTS 2

This suit coming up before me on 27-12-2017 for hearing in the presence of Sri P.Raghunatha Sastry, Advocate for the Plaintiff, Sri N.Chandramouli, Advocate for the 6 th Defendant, Sri H.S.Narayanow Gowd, Advocate for the 2 nd Defendant, 1, 3 to 5, 7, 8 & 10 th Defendants remained exparte and the suit against 9 th Defendant is abated and having stood over for consideration, till this day, this Court, delivered the following :-

:J U D G M E N T:

1.The plaintiff claims for partition of the suit schedule properties into 9 equal shares, with respect to good and bad soil and thereby to allot one such share for her together with separate possession.

2.Whereas D.2 and D.6, by way of their respective written statements have resisted the suit. But, D.1, D.3 to D.5, D.7, 8, D.10 and D.11 have remained exparte.

3.The first and foremost case of plaintiff is that she and the defendants 1 to 8 are siblings cum children of Late Anjaneyulu s/o Chinna Hanumanthappa and that their joint family has both ancestral and joint family properties.

Their joint family out of joint nucleus funds had purchased the suit schedule properties of Ac.3-20 cents, situated in S.No.238-1 of

Chandakacharla Revenue Village and Ac.10-60 cents, situated in S.No.241 of Chandakacharla Revenue Village under aregistered sale deed dt:22-01- 1975, in the name of 2nd defendant, who was eldest son of Late Anjaneyulu.

The plaintiff and defendants 1 to 8, being joint family members have been enjoying the suit schedule properties by raising crops and sharing the usufruct and all of them have equal shares. But, the 2nd defendant was reliably known to have executed a gift deed in favour of his wife (10th defendant) in respect of the suit schedule properties, without obtaining consent from the remaining joint family members cum co-sharers cum co- owners. Therefore she (plaintiff) has got issued a legal notice dt. 24-09- 2011 to the defendants demanding for amicable partition and separate 3 possession of her 1/9th share in the suit schedule properties. However, the defendants, on one pretext or the other have been postponing the issue and did not evince interest for amicable partition and that therefore she (plaintiff) was constrained to file the suit claiming for partition of her 1/9th share in the suit schedule properties.

4.The 9th defendant, being the senior paternal aunt of the plaintiff and defendants 1 to 8 was added as necessary party to the suit. But during the pendency of suit, the 9th defendant died leaving behind her, the 11th defendant (Ramanjanamma) as her sole legal heir.

5.Whereas the contest of 2nd defendant, interalia is that the Genealogical Tree produced by the plaintiff is incorrect and that never the plaintiff has got issued the alleged legal notice dt:24-09-2011 demanding for partition and that there is no cause of action for the suit and the Court Fee paid is incorrect.

6.The further contest of 2nd defendant is that one Chinna Hanumanthappa S/o

Anjinappa had two wives viz. Nagamma (first wife) and Lakshmamma (second wife). Chinna Hanumanthappa had seven children through his two wives viz. Kuriyamma, Gundamma, Aswarthamma, Anjineyulu,

Ramanjineyulu, Seshappa and Suseelamma. Of them Kuriyamma,

Gundamma and Aswarthamma died leaving behind them, their legal heirs, who are as though proper and necessary parties have not been joined in the suit and that therefore the plaintiff's suit is liable to be dismissed for non- joinder of necessary parties. It is also the contest of 2nd defendant that there is no division among the legal heirs of Chinna Hanumanthappa, stated supra.

7.The further contest of 2nd defendant is that he is doing business in selling

Silk Sarees besides doing Seasonal Business. He hasn't taken any share in 4 the joint family properties and came out from the joint family with empty hands, prior to the year 1975. He had purchased the suit schedule properties from it's rightful owner for a valuable consideration from and out of his own funds, with the knowledge of the plaintiff and other defendants and that therefore the suit schedule properties are his self acquired properties and he has been in exclusive possession and enjoyment of the suit schedule properties by raising crops and paying land revenue to the concerned authorities. The revenue authorities, after due enquiry had also issued pattadar pass book and title deed document in his favor and that he has also availed loan from a local bank by pledging his title deed documents pertaining to the suit schedule properties. He has 2 daughters viz.

Gangadevi and lakshmamma but no sons. Out of love and affection he had executed a registered gift deed in favour of his wife (10th defendant) on 09- 08-2011, vide document bearing No.1751/2011 pertaining to the suit schedule properties and had delivered possession.

8.Another contest of the 2nd defendant is that his father - Anjaneyulu died on 17-05-2006. During his life time, due to pressure from the plaintiff, being his eldest daughter, he has purchased a house site at Muddireddipalli in the name of her (plaintiff) daughter – Ramanjinamma, who is no other than the wife of 6th defendant and got constructed a house, worth Rs.40,00,000/- and that likewise he also purchased a house site, worth Rs.10,00,000/-, in the name of the wife of 7th defendant viz. Prabhavathi at Muddireddipalli.

9.The plaintiff and defendants 1 to 8 have joint family properties of Ac.2-98 cents in S.No.66-2, Ac.0-52 cents in S.No.66-4, Ac.2-98 cents in S.No.67- 2, Ac.0-92 cents in S.No.71-2, Ac.0-15 cents in S.No.231-1, Ac.0-13 cents in S.No.208-5, Ac.0-47 cents in S.No.22-3, Ac.0-53 cents in S.No.221-1,

Ac.0-45 cents in S.No.231-5, Ac.0-27 cents in S.No.212-5, Ac.4-90 cents in

S.No.274-2 and Ac.0-90 cents in S.No.209-5 of Chandakacharla Revenue 5

Village besides a house bearing door No.1-129-A, worth Rs.10,00,000/-.

But then the plaintiff, in connivance with the 6th defendant, who married her (plaintiff) daughter by leaving all the joint family properties, has got filed the suit against the 2nd defendant in respect of suit schedule properties to knock away his self acquired suit schedule properties.

10. It is also the contest of 2nd defendant that he filed a suit in O.S.No.97 of 1995 on the file of District Munsif, Madakasira against Kuruba Sivapa and others in respect of the suit schedule properties claiming for perpetual injunction and that the suit was decreed on merits, which fact was known to the plaintiff and the other defendants.

11. Therefore the suit is sought to be dismissed.

12. On the other hand, the contention of the 6th defendant is that the averments made in the plaint are true and correct and that he has no objection to pass preliminary decree as prayed for in the suit.

13. In view of the rival contentions referred above, an opportunity was given to the warring parties to avail the benefit of Section 89 of Civil Procedure

Code. But when they failed to resolve the dispute at the negotiating table, the following issues were settled by my learned predecessor:

⁃1. Whether the suit property is the self acquired property of the defendant No.2?

⁃2. Whether the suit is bad for non joinder of necessary parties?

⁃3. Whether the suit is bad for non joinder of some other properties?

⁃4. Whether the plaintiff is entitled for partition and separate possession of her share?

⁃5. To what relief?

6

14. During the course of trial, PW-1 and PW-2 were examined and Exs.A-1 to

Ex.A-6 were marked on behalf of the plaintiff. DW-1 alone was examined on behalf of the defendants and Ex.B-1 to Ex.B-3 were marked.

15. I have heard the arguments of plaintiff and defendants.

16. ISSUES 1 and 4: Both the issues are interdependent and inter-related and as such they are taken up together for simultaneous discussion to avoid redundancy.

17. The specific case of plaintiff is that she and the defendants 1 to 8 are siblings cum children of Late Anjaneyulu s/o Chinna Hanumanthappa and that their joint family has both ancestral and joint family properties. Their joint family out of joint nucleus funds had purchased the suit schedule properties of Ac.3-20 cents, situated in S.No.238-1 of Chandakacharla

Revenue Village and Ac.10-60 cents, situated in S.No.241 of

Chandakacharla Revenue Village under aregistered sale deed dt:22-01- 1975, in the name of 2nd defendant, who was eldest son of Late Anjaneyulu.

The plaintiff and defendants 1 to 8, being joint family members have been enjoying the suit schedule properties by raising crops and sharing the usufruct and all of them have equal shares. Whereas the specific contest of 2nd defendant is that he came out from the joint family in the year 1975 and while rendering business in selling silk sarees and doing seasonal business, he had purchased the suit schedule properties from and out of his own funds. Now let me see, which of these two rival versions is correct.

18. The plaintiff was examined as PW-1 and she has reiterated the averments of the plaint and reaffirmed that the suit schedule properties have been purchased from and out of the joint family funds, in the name of 2nd defendant under a registered sale deed dt:22-01-1975 and copy of it was marked as Ex.A-1. Nevertheless PW-1 during the course of her cross 7 examination has deposed that her father had purchased the suit schedule properties out of his earnings as a Weaver.

19. Thus the plaintiff, notwithstanding the quintessence of her case that the suit schedule properties have been purchased from and out of the joint nucleus funds in the name of 2nd defendant, has deposed in her cross-examination that her father had purchased the suit schedule properties from and out of his earnings as a Weaver.

20. That apart PW-1 has categorically deposed that the 2nd defendant is not at all his brother. Moreover, PW-1 has testified that she does not know that the 2nd defendant by doing clothes business had purchased the suit schedule properties from his own earnings. PW-1 did not even denied to the suggestion that the suit schedule properties are the self acquired properties of the 2nd defendant. More so, PW-1 could not even divulged the total extent of property owned by her paternal grand father viz., Chinna

Hanumantharayappa.

21. On examination of the certified copy of sale deed dt:22-01-1975 would go to show that N.Anantaraju (2nd defendant) S/o Anjaneyulu had purchased the suit schedule properties of Ac.3-20 cents, situated in S.No.238-1 of

Chandakacharla Revenue Village from G.Ramachandrappa S/o Govathi

Nanjappa, for a valuable consideration of Rs.8,000/-.

22. Ex.A-1 does not disclose that the 2nd defendant had purchased the suit schedule properties from and out of joint nucleus funds nor as a kartha of joint family.

23. The plaintiff, while being examined as PW-1 in her evidence did not deny the suggestion put forth to her that the 2nd defendant by doing clothes business had purchased the suit schedule properties from and out of his own earnings. So, the business of the 2nd defendant and his earning capacity has 8 not been disputed by the plaintiff. So, the fact remains established that the 2nd defendant did clothes business and he has earning capacity to purchase the suit schedule properties. The plaintiff did not produce any tangible evidence to establish that the suit schedule properties have been purchased in the name of the 2nd defendant out of joint family funds and nucleus.

24. Even though, it is the tall contention of the plaintiff that she and other defendants have been in joint possession and enjoyment of the suit schedule properties, she has categorically deposed in her evidence as PW-1 that she does not know the survey number of the suit schedule properties besides it's extents. The plaintiff did not shoulder to produce any revenue record showing her alleged possession and enjoyment over the suit schedule properties. Added to it, she did not deny that the entire revenue record has been standing in the name of 2nd defendant. More so, the plaintiff as PW-1 has deposed that never she has seen the suit schedule properties. PW-1 by admitting her ignorance about the suit schedule properties, cannot be said by any stretch of imagination that she was ever in joint possession and enjoyment of the suit schedule properties.

25. The plaintiff has produced one Virupaksha of Chandakacharla Village and examined him as PW-2 and he has stated in his chief examination affidavit that the suit schedule properties are the ancestral properties of the plaintiff and the defendants, which were purchased by their father in the name of

Anantaraju (2nd defendant), while they are joint.

26. The very case of the plaintiff is that the suit schedule properties have been purchased from and out of joint family funds. Nevertheless, the evidence of

PW-2 is that the suit schedule properties are the ancestral properties of the plaintiff and the defendants. So, the evidence of PW-2 is running contra to the pleadings of plaintiff. PW-2 in his cross examination has deposed that 9 he worked as an employee under the 6th defendant handloom and that his chief examination affidavit has been prepared under the instructions of the plaintiff. PW-2 could not have furnished the properties of the father of the plaintiff and the defendants 1 to 8 viz., Anjaneyulu nor he has divulged about the list of properties the family of the plaintiff has, in order to establish that he has knowledge about the properties of the plaintiff and the defendants.

27. Thus, the evidence of PW-2, in the light of his ignorance about the properties of the plaintiff and defendants, besides his employment under the 6th defendant, does not attach much credence.

28. The version of 2nd defendant is that the 6th defendant, who has married the daughter of the plaintiff is the instrumental for institution of the suit. PW-1 in her cross examination has admitted that the 6th defendant has married her daughter. So, the 6th defendant is proved to be the son-in-law of PW.1.

PW-1 during the course of her cross-has denied to the suggestion that the plaint was prepared at the instruction of the 6th defendant. Nevertheless,

PW-1 has failed to furnish the name of her counsel, who prepared the plaint. That apart, PW.1 did not deny to the suggestion that her son-in-law i.e 6th defendant has brought her to her counsel for preparing her plaint.

Above all, she has categorically deposed that she does not know the contents of her plaint. The failure of the plaintiff as PW-1 to divulge the purpose for which the suit was filed, fortifies and probablizes the version of 2nd defendant that the plaintiff, at the instigation of the 6th defendant has got filed the suit.

29. The 2nd defendant, while being examined as DW-1, in the cross examination has deposed that the marriage of the plaintiff (PW.1) was performed, about 10 years prior to his marriage. It is also the evidence of 2nd defendant as 10

DW.1 in his cross examination that his marriage was performed in the year 1983. Both these aspects have not been disputed by the learned counsel for the plaintiff. So, the fact remains established is that the marriage of the plaintiff (PW.1) could have been performed in or about the year 1973.

30. Indisputably, the suit schedule properties have been purchased in the name of 2nd defendant (DW.1) under EX.B1 - registered sale deed dt:22-01- 1975. In other words, the suit schedule properties have been purchased in the name of 2nd defendant (DW.1) under EX.B1, after performance of plaintiff's (PW.1) marriage. It is a settled proposition of law that when a joint family consists of males and females, the females born in the family will continue to be the members of joint family until their marriage and ceases to continue as joint family members after their marriages. So, the plaintiff's version that she, being the joint family member has contributed amounts for purchase of the suit schedule properties after performance of her marriage, is not only improbable but also far-fetching.

31. The plaintiff, in order to establish that she and the defendants 1 to 8 have jointly lived under one roof until the demise of their father – N.Anjaneyulu in the year 2006, has produced Ex.A-4 – voters list. A perusal of Ex.A-4, does not contain the authority that issued it, besides it does not have any seal of the issuing authority. Moreover, the name of the Gram Panchayat in respect of which it was issued is also kept blank. So, no credence, whatsoever can be attached to Ex.A-4.

32. There is no presumption that a family because it is joint, possesses joint property. Possession of property is not under the Mitakshara law a necessary requisite for the constitution of a joint family though where persons live together, joint in food and worship.

33. The plaintiff has produced land ceiling orders under the cover of Ex.A-3 in 11 order to show the suit schedule properties are joint family properties. The first document covered by Ex.A-3, issued by Additional Revenue

Divisional Officer, Land Reforms, Penukonda, standing in the name of the father of plaintiff and the defendants 1 to 8 viz. Niluri Anjaneyulu s/o

Chinna Hanumanthappa, directing him to attend before the issuing authority on 27-10-2015 for enquiry. The 2nd document covered under Ex.A-3, is issued by the II Additional Revenue Divisional Officer, Madakasira, in the name of the father of the plaintiff and defendants 1 to 8 viz. Niluri

Anjaneyulu s/o Chinna Hanumanthappa, showing that his family consists of his wife – Ramakka, son–M.Ramanjineyulu, son–Ramaprasad (6th defendant), son–Govindarajulu (7th defendant), Santhamma–daughter(5th defendant), Ramalakshmamma–daughter. On examination of this document, the suit schedule properties are shown to be properties of the father of plaintiff and defendants viz.Niluri Anjaneyulu. But then the plaintiff did not attempt to examine the concerned authorities, who had issued Ex.A-3.

34. It is a settled proposition of law that mere production of a document does not dispense with it's proof. The plaintiff ought not to have failed to examine the concerned authorities, said to have issued Ex.A-3 for establish it's contents. Mere production of Ex.A-3, cannot by itself be said that the suit schedule properties have been purchased in the name of 2nd defendant from and out of the joint nucleus funds inasmuch as nowhere it is found that the suit schedule properties have been purchased in the name of the 2nd defendant from and out of joint nucleus funds, raised by all the family members.

35. The suit schedule properties are admitted to have been purchased on 22-01- 1975 under a registered sale deed covered by EX.B.1 in the name of 2nd defendant. The father of plaintiff and the defendants 1 to 8 12 viz.N.Anjaneyulu has breathed his last in the year 2006. It is not even the case of plaintiff that the 2nd defendant had acted as a kartha of joint family.

When the father of the plaintiff and defendants 1 to 8 viz. N.Anjaneyulu was alive by the date of purchase of suit schedule properties under EX.B.1, there is no necessity for the joint family members to purchase the suit schedule properties in the name of the 2nd defendant, who is not even kartha of a joint family. There is no explanation whatsoever has been emanating from the evidence of the plaintiff that has driven the plaintiff and the defendants 1 and 3 to 8 and their father- N.Anjaneyuly to purchase the suit schedule properties under the cover of EX.B.1 in the name of the 2nd defendant.

36. The plaintiff has produced Ex.A-5 – certified copy of the sale deed

dt:15-08-1927 showing that Pedda Hanumanthappa, who is the paternal

grand father of plaintiff and defendants 1 to 8 had purchased half share in the properties of Ac.0-68 cents in S.No.186-A, Ac.0-25 cents in S.No.186,

Ac.6-26 cents in S.No.56-B along with standing trees and Ac.0-30 cents in

S.No.57-D/2 etc.

37. Ex.A-6 is the certified copy of register of holdings, issued by the Sub

Registrar, Madakasira dt:08-10-2012. A perusal of Ex.A-6 shows that

Hanumanthappa and Dalappa purchased some properties from Obulesappa.

The plaintiff by producing the encumbrance certificate would intend to establish that the family of the plaintiff and the defendants have ancestral joint family properties.

38. The plaintiff by producing Exs.A-5 & A.6 has attempted to establish that there are some ancestral properties to the family of the plaintiff and the defendants. Just because there are some ancestral properties purchased by the ancestors of the plaintiff and the defendants 1 to 8, it cannot be said that 13 the suit schedule properties have been purchased in the name of the 2nd defendant from and out of the joint family funds.

39. In the light of my aforementioned discussion, I am constrained to arrive at a only conclusion that the 2nd defendant had purchased the suit schedule properties from and out of his own funds and that therefore those properties are his self acquired properties.

40. Thus, issues 1 and 4 are answered accordingly.

41. ISSUES 2 and 3: The contest of 2nd defendant, as could be seen from the 17th para of the written statement is that the joint family has properties of

Ac.2-98 cents in S.No.66-2, Ac.0-52 cents in S.No.66-4, Ac.2-98 cents in

S.No.67-2, Ac.0-92 cents in S.No.71-2, Ac.0-15 cents in S.No.231-1, Ac.0- 13 cents in S.No.208-5, Ac.0-47 cents in S.No.22-3, Ac.0-53 cents in

S.No.221-1, Ac.0-45 cents in S.No.231-5, Ac.0-27 cents in S.No.212-5,

Ac.4-90 cents in S.No.274-2 and Ac.0-90 cents in S.No.209-5 at

Chandakacharla Revenue Village. This aspect was not even denied or challenged by the plaintiff.

42. In a suit for partition the plaintiff should have to embrace all the joint family properties in the suit. However, the plaintiff could not have embraced all the entire joint family properties in the suit claiming for partition. No explanation has been forthcoming from the evidence of plaintiff as to why the suit was instituted only against suit schedule properties standing in the name of 2nd defendant (DW.1) excluding entire ancestral joint family. So, non embracing of entire joint family properties is a militating circumstance against the case of plaintiff.

43. The other specific contest of the 2nd defendant is that the suit is bad for non- joinder of necessary parties. The plaintiff, while being examined as PW-1 has deposed that her paternal grand father – Chinna Hanumanthappa has 14 two wives viz. Nagamma and Lakshmamma. Of them Nagamma has 3 daughters and one son viz. Kunyamma, Gundamma, Aswarthamma and

Anjineyulu. Of them again Kunyamma died leaving behind her, her son –

Nagaraju. Gundamma died leaving behind her, her son – Ramanjineyulu.

Aswarthamma died leaving behind her, her sons viz. Ramanjineyulu,

Anjineyulu and Naresh. Ramanjineyulu also died leaving behind him, his wife and children.

44. In a suit for partition all coparceners or co-sharers must be joined as plaintiffs or defendants. Indisputably, there is no divison among the joint family members of the plaintiff and the defendants and that therefore all the joint family members are proper and necessary parties, in whose absence no effective adjudication can be done. But the plaintiff, without there being a plausible explanation, could not have joined all the joint family member.

So, the plaintiff's suit is bad for non joinder of all the coparceners or co- sharers.

45. The 2nd and 3rd issues are answered holding that the plaintiff's suit is bad for both non joinder of necessary parties and non joinder of entire joint family properties in the suit.

46. In summing up of my discussion I am constrained to arrive at a only logical conclusion that the suit schedule properties are the self acquired properties of 2nd defendant and as such the plaintiff is debarred from claiming partition of the suit schedule properties.

47. ISSUE No.5: In the result, the plaintiff's suit for partition of the suit schedule properties is dismissed without costs, inasmuch as imposing of costs would further deteriorate the family bondage between the plaintiff and the 2nd defendant.

Dictated to the Stenographer Grade III, transcribed by him, corrected and

15

pronounced by me in the open Court, this the 16 th day of February, Two thousand

Eighteen.

JUNIOR CIVIL JUDGE

MADAKASIRA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: PW-1: Gangamma PW-2: Virupaksha FOR DEFENDANTS: DW-1: N.Anantharaju

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A-1: Registration extract of sale deed dt:22-01-1975 Ex.A-2: Office copy of notice dt:15-09-2011 Ex.A-3: Land Ceiling Orders dt:15-10-1975 Ex.A-4: Voters Enumeration List Ex.A-5: Registration extract of sale deed dt:15-08-1927 Ex.A-6: Certified copy of register of holding dt:08-10-2012

FOR DEFENDANTS: Ex.B-1: Certified copy of registration extract of sale deed dt:22-01-1975 Ex.B-2: Pattadar pass book issued in the name of 2nd Defendant Ex.B-3: Genealogical Tree

J.C.J.

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE: KADIRI

Present:- Sri N.RAMESH NAIDU,

Principal Junior Civil Judge Court,

Kadiri

FAC: Additional Judicial Magistrate of First Class,

Kadiri

Monday, the 25 th day of June, 2018.

Calendar Case No.236 of 2018

Between: State represented by the Sub-Inspector of Police, Kadiri Town PS …Complainant

And

1) Budili Muqthiyar, aged 28 years, s/o Late Soukath Ali, R/o D.No.9-398, Makka Masjid stret, Rayachoty road, KadiriTown.

2) Thummala Patan Mahammad, aged 23 years, s/o Late Allabakash, R/o D.No.9-474, Patha Kummaraveedhi, Kadiri Town.

3) Koduru Mahammad Shakeel, aged 21 years, s/o Mohammad Haneef.

…Accused

This case coming on 19-06-2018 for final hearing before me in the presence of Assistant Public Prosecutor for the State and of Sri.K.Khadar

Basha, K.Y.Jirajuddin and A.Gangi Reddy, Advocates for A1 to A3, and upon hearing the arguments on both sides, and the matter having stood for consideration till this day, this Court delivered the following:

J U D G M E N T

1. The Sub-Inspector of police, Kadiri Town Police Station, while representing the State has laid down charge sheet against A-1 to A3, said to have committed the offences punishable under Sections 457 and 380 of Indian Penal Code or in the alternative under section 411 of

Indian Penal Code.

2. The quintessence of prosecution case is that the informant-

P.Anjaneyulu, on 17.5.2017 at 4.00 PM lodged a report with the then

Head Constable-1994 viz.G.Adinarayana, complaining that during the intervening night of 16/17/05/2017, some miscreants had gained entry into his house, situated at Adapala street of Kadiri Town and had stolen gold ornaments viz. Black beads chain, weighing about 2 tulas, Sada chain, weighing about 1 tula, one pair of ear studs, weighing about 4 tulas, 3 gold rings, weighing about 6 gms and a cell phone, all worth 45,000/- and had escaped with booty whereupon he (HC-1994) had registered had the report as a case in Cr.No.150/2017 of Kadiri Town PS under sections.457 and 380 of IPC whereupon transmitted the original

FIR, to the court and it's copies to all his Superior Officers and thereafter examined the informant and LWs.2 to 5 viz.

P.Subbhadramma, K.Madhu sudhana, N.Ameer Basha and A.Mani

Kumar, recorded their statements, visited the scene of offence, prepared rough sketch of crime scene and thereafter he had handed over further investigation to then SI of Police viz. O.Shadeva Reddy.

During the course of investigation, then Inspector of police, Kadiri

Urban Circle viz. K.Gorantla Madhav, with the assistance of LW10 -

O.Shadeva Redddy, SI and LW12 - J.Hemath Kumar, Sub-Inspector, along with police personnel had apprehended A1 to A3 on 25.12.2017 at a vacant place, situated opposite to the Friends Dhaba, located between Kadiri - Madanapalli road of KadiriTown and produced them

before then AJFCM, Kadiri for remand in Cr.No.312/2017 of Kadiri Town

PS registered under sections.457 and 380 of IPC and that the accused, during the course of interrogation had spilled the beans about commission of offences in the case at hand apart from their involvement in some five other property offences at Kadiri Town and that thereby Black beads chain, weighing about 20 gums, has been seized from the possession of A1 in connection with Cr.No.151/2017 of

Kadiri Town PS 2) One gold necklace, weighing about 15 gms and two pairs of ear studs, weighing about 5 gms from the possession of A1 in connection with Cr.No.207/2017of Kadiri Town PS 3) Sada Chain, weighing about 15 gms and one pair of ear studs, weighing about 10 gms from the possession A2 in connection with Cr.No.225/2017 of

Kadiri Town PS 4) One gold necklace, weighing about 30 gms from the possession of A2 in connection with Cr.No.250/2017 of Kadiri Town PS

5) Two rows gold chain, weighing about 25 gms and one pair of ear studs, weighing about 10 gms from the possession of A3 in connection with Cr.No.267/2017 of Kadiri Town PS and one bracelet, weighing about 20 gms, large chain, weighing about 20 gms and two pairs of ear studs, studded with stones, weighing about 10gms from the possession of A3 in connection with Cr.No.312/2017 of Kadiri Town PS under the cover of Mahazarnama prepared in the presence of mediators and got conducted Test Identification parade of stolen articles and that thereafter produced the crime property before then AJFCM, Kadiri and that thereafter obtained PT warrants against A1 to A3 and produced them before then AJFCM, Kadiri on 2.1.2018 in connection with case at hand. After completion of investigation charge sheet has been filed against the accused A1 to A3 for the offences punishable under sections.457 and 380 of IPC.

3. The above referred charge sheet has been taken on file as a case in

C.C.No.236 of 2018 under Sections 457 and 380 IPC or alternatively under section 411 of Indian Penal Code. After appearance of the accused A-1 to A3, they were furnished with copies of case documents and then they were examined under Section. 239 of Cr.P.C whereupon they had denied the offences and claimed to be tried and as such charges for the offences punishable under Sections 457 and 380 Or alternatively U/s. 411 of IPC were framed, read over and explained to them in Telugu. Therefore, they were sent up for trial.

4. During the course of trial PWs-1 to 7 were examined and Exs.P.1 to

Ex.P.6 and M.O.1 were marked for the prosecution.

5. Thereafter A-1 to A3 have been examined under Section. 313 of

Cr.P.C., explaining the incriminating circumstances available against them in the evidence of prosecution, for which A-1 to A3 denied and reported no defence evidence and as such defence evidence was closed and then heard arguments of prosecution and defense. Perused the case records.

6. Now the points that arise for determination in the case on hand are:

1) Whether the victim cum informant-P.Anjaneyulu is the owner of MO.1? If so whether MO.1 has been stolen from his house, situated at Adapala Street of Kadiri Town P.S on the intervening night of 16/17-05-2017?

2) Whether M.O.1 has been recovered from the possession of A1 to A3 on 25.12.2017 at the Friends Dhaba of Kadiri Town?

3) Whether the prosecution has driven home the guilt of the accused beyond a shadow of doubt?

7. POINT No.1: The specific case of prosecution is that some unknown miscreants had gained entry into the house of informant/victim-

P.Anjaneyulu, during the intervening of 16/17-5-2017, situated at

Adapala street of Kadiri Town whereby MO1 and other articles had been stolen from his house. Whereas the accused had denied commission of theft in the house of informant/victim-P.Anjaneyulu. So, it is for the prosecution to establish that the informant/victim-P.Anjaneuyulu had been in possession of MO.1, as on the date of alleged commission of theft and that it was stolen away by some unknown miscreants during the intervening night of 16/17-5-2017 from his house.

8. The prosecution so as to substantiate it's case of ownership of

MO.1 with the informant/victim and commission of theft in his house has examined the informant/victim-P.Anjaneyulu as PW1, who in his evidence has deposed that he is a practicing Advocate at Kadiri and that on 16/17-5-2017, he along with his wife LW2-P.Subhadramma had slept in their house and had woken up in the morning and had observed the front main door of their house was broke open and the steel almyrah (wardrobe) was broke open and on verification, gold ornaments, weighing 5 tulas and cash of Rs. 70,000/- had been found stolen. Thereafter he lodged a report under EX.P1 with the police and in pursuance of it, 3 months later police called him to the police station and that thereafter the VRO, Kadiri had conducted Test Identification parade of stolen gold ornaments, under the cover of identification mahazarnama.

9. The prosecution has produced one K.Madhusudhana, stated to be the neighbor of PW1 and examined him as PW2 wherein his evidence he has deposed that one year prior to his giving evidence, all of his neighbors had gathered at the house of PW1 and on enquiry he came to know that some miscreants had committed house burglary in the house of PW1 and whereupon he had been to the inside of house and found the things in the house were strewn all over the house and that on his further enquiry, the miscreants are known to have stolen some gold ornaments and a cell phone from the house of PW1.

10. Thus the evidence of PW.1 read in conjunction with the evidence of PW.2, drives this court to arrive at a conclusion that the PW.1 is the owner of MO.1 and it was stolen by some unknown miscreants on the intervening night of 16/17-5-2017 from his house, situated at Adapala

Street, Kadiri Town.

11. Of course, I am conscious of the fact that according to the earliest version of PW1, the miscreants had only stolen gold ornaments and a cell phone from his house but PW1, while giving his evidence before the court had exaggerated and improved his version and had deposed that the accused apart from stealing gold ornaments from his house, had also stolen cash of Rs.70,000/-. Likewise, according to the evidence of PW1, he had no acquaintance with any other prosecution witnesses cited in the charge-sheet. But PW2 claims himself as the neighbor of PW1. Similarly, PW1 in his evidence had not at all spoken to that the things in his house were strewn all over his house. But PW2, stated to have entered into the house of PW1 soon after alleged commission of theft had deposed that the things in the house of PW1 were strewn all over his house.

12. Thus there are some minor discrepancies and exaggerations crept in the evidence of PWs.1 & 2. However they cannot corrode the trustworthiness of PWs.1 & 2 in respect of commission of offense.

13. No other persons other than PW.1 has laid ownership over MO.1 nor the accused had claimed any such ownership over MO.1. So, there is no any bout about the ownership of MO.1 with PW.1.

14. Thus the 1st point is answered in the affirmative holding that PW.1 is the owner of MO.1 and it has been stolen from his house, situated at

Adapala Street of Kadiri Town P.S on the intervening night of 16/17-05- 2017.

15. POINT NO.2: The other specific case of prosecution is that PW7-

CI of police, on 25.12.2017 had recovered MO.1 from the possession of

A1 to A3 under the cover of EX.MO.1 mahazarnama. Whereas the accused had disputed recovery of MO.1 from their possession. So, the burden of proof, as in the case of adversarial system, rests on the shoulders of the prosecution so as to bring home the guilt of the accused beyond a pale of doubt.

16. Now let me see as to how far the prosecution could have succeeded to establish recovery of MO.1 from the possession of accused.

17. PW1 has deposed that the VRO of Kadiri had conducted test identification parade of MO.1. The prosecution has produced one

Bhukya Yasodamma and has examined her as PW5, who in her evidence has deposed that one day in the month of January, 2018 while she was at MRO office, Kadiri, one of the police constables had approached her requesting to conduct test identification parade of

MO.1 claiming it as stolen recovered ornament whereupon she got brought a similar chain with that of MO.1 and placed both chains on her table, requiring PW1 to identify MO.1 whereupon PW1 has identified MO.1 as that of his stolen ornament.

18. On examining of the identification Mahazarnama covered by

EX.P2, PW5-VRO is stated to have brought 3 similar chains with that of

MO.1 for conducting test identification parade. Nevertheless PW5 in her evidence before the court has deposed that she got brought only one gold chain with that of MO.1 for conducting test identification parade. The evidence of PW1, is thus running contra to the contents of

EX.P2 – Mahazarnama, which contra version not only creates solemn doubt about the very conducting of test identification parade but it also strengthens the defence of the accused that PW5-VRO is deposing false at the instance of the Investigation Officer, without conducting any identification parade.

19. That apart PW5 in her evidence has deposed that no whitener has been applied against her name, available in the preamble of EX.P2 by the time of it's preparation. However when observed with a naked eye, the name of PW5-VRO has been written in the preamble of EX.P2 after applying white fluid on some writings. Moreover, neither the signature of PW1 nor the signature of PW1 contains the date of their subscribing signatures thereunto EX.P2, for asserting the date of it's preparation. Neither the contents of EX.P2 nor the evidence of PW5-

VRO, discloses the name of the gold shop from which the similar gold chain with that of MO.1 has been brought for conducting test identification parade.

20. Above all, PW1 has deposed that the test identification parade is alleged to have been conducted three months after lodging EX.P1. It is an indisputable fact that EX.P1 was lodged on 17.5.2017. So, PW1 might have lodged EX.P1 in the month of August, 2017 or thereabouts.

But on verification of EX.P2-identification Mahazarnama, it is shown to have been prepared on 25.1.2018. Thus, the evidence of PW1 belies the evidence of PW5. So, the very conducting of test identification parade of MO.1, does not gain any confidence of the court.

21. Leave apart, the prosecution in a vain bid to substantiate recovery of gold ornaments under the cover of EX.P7-mahazarnama has produced one D.Srerramulu and examined him as PW.3, wherein his evidence he has deposed that on 25.12.2017 he visited the Kadiri Town

PS at 9.30 Am on his personal work whereupon at the request of then

Station House Officer he signed on some typed papers without knowing its contents.

22. The prosecution has thereafter produced one Srinivasulu and examined him as PW4 wherein his evidence he has deposed that on 25.12.2017 at about 9.30 AM when he visited Kadiri Town PS at the request of Station House Officer, Kadiri he signed on some typed papers without knowing its contents.

23. Thus both the independent mediators have turned hostile to the case of the prosecution and that although they were cross examined by the learned APP with the permission of the court, nothing serious nor substantial to the case of the prosecution has been elicited during the course of their cross examination barring suggestions, suggesting that both of them witnesses have been deposing false with a view to save the accused. The prosecution has failed to offer any plausible explanation as to why it's own witnesses have not been supporting it's case. No friendship nor quintessence has been attributed to the witnesses with that of the accused, which might prompt them to save the accused. Therefore the evidence of alleged independent witnesses for recovery is of no avail.

24. There remains the evidence of both the investigation Officers, of them the evidence of PW6, then Head Constable is that he having received EX.P1 from PW1 has registered the case and that after examination of witnesses and preparation of rough sketch, handed over further investigation to then SI of police Kadiri Town PS viz.

O.Shadeva Reddy.

25. On the other hand, the evidence of PW7-CI of Police, stated to have apprehended A1 to A3 and recovered stolen articles from their possession is that on 25.12.2017 at 6.30 am while he was in the police station, he received credible information and then he secured the presence of PWs. 3 and 4 and then he along with mediators and other police personnel had been to the Friends Dhaba, situated at

Madanapalli road, hereinafter referred to as the scene of offence, by carrying a laptop, printer, sealed match box, plastic covers, thread, papers, pens and electrical weighing machine in a jeep and found the accused, who on being observed by his team had attempted to flee away but they were caught and quizzed them separately whereupon they confessed to have committed house burglaries at Sattemagudi street, Radhakrishna street, valisab road and R.S. Road during May-

September in order to meet expenses for their vices.

26. Now, the short question that falls for consideration is whether the accused can be convicted basing on the sole testimony of the I.O-PW.7, said to have effected recovery, without any corroboration from either independent witnesses or scientific evidence or the accused are entitled to claim benefit of doubt.

27. To answer the point, it is apt on my part to refer to a judgment of

Hon'ble Supreme Court of India, in the case of Karamjit Singh Vs. State

(Delhi Admn.) reported in AIR 2003 SC 1311 wherein it was observed as :

Para 8: ".........In my opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should not be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down."

28. However, If a confession be made to a police officer, the law says that such a confession shall be absolutely excluded from the evidence under section 25 of Indian Evidence Act inasmuch as the person to whom it was made is not to be relied on for proving such a confession and he is moreover suspected of employing coercion to obtain the confession.

29. In the case of R v Babu Lal (1884 ) ILR 6 ALL 509, per Mahammad

J and ibid, P.544, peer straight J ibid, P.513, per Oldfield, J: Code of

Criminal Procedure 1973 S.162, Karimat VR, AIR 1926, Cal 147; the reason for sec.25 is stated thus:

30. “These legislative provisions leave no doubt in my mind that the legislature had in view the malpractice of police officers in extorting confession from accused persons in order to gain credit by securing convictions, and that those malpractices went to the length of positive torture; nor do I doubt that the legislature, in laying down such stringent rules, regarded the evidence of police officers as untrustworthy, and the object of the rules was to put a stop to the extortion of confessions, by taking away from the police officers the advantage of proving such extorted confessions during the trial of accused persons. It requires no vivid imagination to picture what too often takes place when two or three of these not very intellectual or highly-paid police officials are called way to a village to investigate a grave crime, of which there are no very clear traces. Naturally, it is much the easier way for them to begin by endeavoring to obtain a confession from the suspected person or persons, instead of by searching out the clues to the evidence from independent sources, and seeing what extraneous proof there is. But, as I have more than once been constrained to remark from this Bench, the effect of this sanction given by S.164 of Cr.P.C 1973, to a magistrate, recording in the course of an instigation, the confessions of accused persons thus obtained, not from the hands of police, is not so beneficial to the elucidations of guilt as is supposed, for it continually happens that, while the police have been occupying themselves in getting the confession, many of the traces of the crime, which, if at once followed up, would have produced valuable proof, have disappeared. To repeat, a phrase I used on a former occasion, instead of working up to the confession, they work done from it, with the result that we frequently find ourselves compelled to reserve convictions, simply because, beyond the confession, there is no tangible evidence of guilt. Moreover, i have said, and I repeat now, it is incredible that the extraordinarily large number of confessions, which come before us in the criminal cases disposed of by this Court, either in appeal or revision, should have been voluntarily and freely made in every instance as represented. I may claim some knowledge and acquaintance with the ways and conduct of persons accused of crime, and I do not believe that the ordinary inclination of their minds, which in this respect I take to be pretty much the same with humanity all the world over, is to make any admission of guilt, I certainly can add, that, during 14 years' active practice in the criminal courts in England, I do not remember half-a- dozen instances in which a real confession, once having been made, was retracted. In this country, on the contrary, the retraction follows almost invariably, as a matter of course, and though I am well aware how this is sought to be explained by a suggestion of the influence brought to bear upon the confession by other prisoners in havalat, the fact remains as an endless source of anxiety and difficulty of those who have to se that justice is properly administered. I say it in no sense of harsh disarrangement, but it is impossible not to feel that the average

Indian policeman, with the desire to satisfy his superiors before, and the terms of the Police Acts and Rules behind him, is not likely to be over-nice in the methods he adopts to make short cut to the elucidation of a difficult case by getting suspected person to confession.

31. Here in the case on hand, PW.7-Investgating Officer, who is stated to have effected recovery, although the place of seizure is said to be situated adjacent to the Friends Dhabha and a Petrol Bunk, had failed to secure the presence of either the staff of Dhabha or Petrol Bunk, resulting creation of a genuine doubt about the search and seizure in the case. More over, the evidence of PW.7-C.I that he received a tipoff at 6.30 am while he was in the Police Station, in the absence of any satisfactory explanation for demanding his presence in the Police

Station during early morning, doesn't inspire confidence of the court.

That apart, neither of the investigating officers had attempted to collect/lift chance finger prints of suspects from the scene of offense in order compare the chance finger prints with that of the finger prints of accused even though science has developed a lot in that regard.

32. Thus, regard had been to the circumstances of the case, the evidence of PW.7, in the absence of scientific evidence and non corroboration from the independent witnesses, doesn't gain confidence of the court and that prosecution has failed to bring home the guilt of the accused beyond a shadow of doubt and that therefore the accused is the best person to receive benefit of doubt.

33. My findings on point No.2 do reveal that the prosecution has miserably failed in it's attempt to drive home the alleged guilt of A-1 to

A-3 under Sections 457 and 380 or alternatively U/s. 411 of Indian

Penal Code, beyond a shadow of doubt and as such A-1 to A-3 are entitled for acquittal on the ground of benefit of doubt and that therefore the second point too is answered against the prosecution.

34. In the result, A-1 to A-3 are found not guilty of the charges indicted against them for the offences punishable under Sections 457 and 380 Or alternatively U/s.411 of Indian Penal Code and that therefore there are acquitted under Section. 248(1) of Criminal

Procedure Code and ordered to be released forthwith from the custody, if they are not otherwise required to be detained in connection with any other crimes. The interim custody of M.O.1 with PW.1, is made absolute.

Dictated portion of Judgment to the Stenographer Grade III, in short hand

book, transcribed by her and remaining portion of Judgment typed to her dictation, corrected and pronounced by me in the open Court, this the 25th day of June, 2018.

Additional Judicial First Class Magistrate(FAC)

Kadiri

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW-1: Anjaneyulu, -None- PW-2: K.Madhusudhan, PW-3: G.Sreeramulu, PW-4: R.Sreenivasulu, PW-5: Bhukya Yasodamma, PW-6: G.Adinarayana, PW-7: K.Gorantla Madhav,

EXHIBITS MARKED

FOR PROSECUTION

Ex.P-1: Complaint of PW-1 Ex.P-2: Test identification Mahazarnama Ex.P-3: Signature of witness Ex.P-4: Signature of witness Ex.P-5: First Information Report Ex.P-6: Rough sketch of the scene of offence

MATERIAL OBJECTS MARKED

M.O.1: One black bead long chain

A.J.F.C.M.

IN THE COURT OF ADDITIONAL JUDICIAL FIRST CLASS OF

MAGISTRATE, KADIRI.

CALENDER CASE NO . 236 of 2018 16.05.2017

1. Date of offence 17.05.2017

2. Date of complaint or report

A1 to A3 on 02.01.2018 produced

3. Date of apprehension of accused from PT warrants.

__________

4. Date of release on bail of accused 20.04.2018

5. Date of commencement of trial 18.06.2018

6. Date of close of trial 25.06.2018

7. Date of sentence or Order

Due to non-production of witness by

8. Explanation of delay if any prosecution.

Complainant:State represented by Sub-Inspector of Police, Kadiri Town Police Station.

Accused:1) Budili Muqthiyar, aged 28 years, s/o Late Soukath Ali, R/o D.No.9-398, Makka Masjid stret, Rayachoty road, KadiriTown.

2) Thummala Patan Mahammad, aged 23 years, s/o Late Allabakash, R/o D.No.9-474, Patha Kummaraveedhi, Kadiri Town.

3) Koduru Mahammad Shakeel, aged 21 years, s/o Mohammad Haneef.

Section of Law: under secs.457 and 380 of Indian

Penal Code or in the alternative under section. 411 of Indian Penal Code. Finding :Found not guilty

In the result, A-1 to A-3 are found not Sentence/Order: guilty of the charges indicted against them for the offences punishable under Sections 457 and 380 Or alternatively U/s.411 of Indian Penal

Code and that therefore there are acquitted under Section 248(1) of

Criminal Procedure Code and ordered to be released forthwith from the custody, if they are not otherwise required to be detained in connection with any other crimes. The interim custody of M.O.1 with PW.1, is made absolute.

Additional Judicial First Class Magistrate,(FAC)

Kadiri.

Copy submitted to the Hon’ble Addl. District and Sessions Judge, Ananthapuramu.

Copy submitted to the Suptdt. of Police, Ananthapuramu.

1

IN THE COURT OF JUNIOR CIVIL JUDGE: MADAKASIRA

PRESENT: SRI N.RAMESH NAIDU,

JUNIOR CIVIL JUDGE

WEDNESDAY, THE FOURTEENTH DAY OF FEBRUARY,

TWO THOUSAND EIGHTEEN

ORIGINAL SUIT No.10 OF 2016

BETWEEN: V.Anil Kumar S/o Virupakshappa, Age:38 years, Hindu, Business, R/o Amidalagondi Village, Madakasira Mandal …PLAINTIFF

Vs.

Dr. P.Nagabhushana Reddy, S/o P.Subba Reddy, Age:about 45 years, Hindu, Practicing Doctor, Ganesh Clinic, Pavagada Road, Madakasira …DEFENDANT

This suit coming up before me on 23-01-2018 for hearing in the presence of Sri P.Raghunatha Sastry, Advocate for the Plaintiff and of Sri Y.C.Goverdhan

Reddy and Sri S.P.Gopinath, Advocates for the Defendant and having stood over for consideration, till this day, this Court, delivered the following :-

:J U D G M E N T:

1.The plaintiff claims for a money decree to realize a sum of Rs.2,25,000/-, being the amount payable on the foot of two promissory notes dated 21-11- 2013, each for Rs.75,000/-, together with subsequent interest and costs.

2.Whereas the defendant, through his written statement has resisted the suit claim.

3.The quintessence of plaintiff's case is that the defendant on 21-11-2013 has borrowed an amount of Rs.1,50,000/- under the foot of two different promissory notes, each for Rs.75,000/- from him, agreeing to repay the said sum together with interest @ 24% per annum on demand either to him or on his order to the holder in due course. But, then the defendant despite his 2 repeated oral demands did not oblize to discharge the debt due to him.

Consequently, he (plaintiff) has got issued a legal notice to the defendant on 06-11-2015 demanding him to discharge the debt due to him (plaintiff) under the two promissory notes executed in his favour on 21-11-2013, which was duly served on the defendant on 09-11-2015. But the defendant having received notice did not issue any reply nor discharged the debt to him and that therefore he was constrained to file the suit for recovery of suit amount.

4.Whereas the contest of defendant, interalia is that neither he has borrowed any amount under the two promissory notices dt.21-11-2013, each for

Rs.75,000/- nor executed the alleged suit promissory notes in favour of the plaintiff but the plaintiff, with the collusion of attestors and scribe has got created the two suit promissory notes for un-lawful gain.

5.The further contest of defendant is that after receipt of legal notice from the plaintiff, he has convened a panchyat before elders, in whose presence the plaintiff has agreed to return him his signed papers and suit promissory notes.

6.It is also the contest of defendant that he is a medical practitioner and that he and the plaintiff has jointly opened a medical shop at Pavagada Road of

Madakasira Town, which was run by the plaintiff. In connection with business, the plaintiff has obtained his signatures on empty papers and blank cheques. The plaintiff has failed to run the medical shop in a faithful manner. As such he (defendant) has demanded the plaintiff to show accounts of medical shop. In that connection a panchayat was also convened wherein he (defendant) has reported his unwillingness to continue as a partner in the medical shop and requested the plaintiff to return back 3 his investments. The plaintiff has prolonged for months together to return his investment and that when he questioned the plaintiff, he has borne grudge and got instituted the suit for un-lawful gain basing on created promissory notes and that therefore there is no cause of action and as such suit is liable to be dismissed.

7.In view of the rival contentions referred above, an opportunity was given to the warring parties to avail the benefit of Sec.89 of Civil Procedure Code, but when they failed to resolve the dispute at the negotiating table, the following issues were settled by my learned predecessor for trial:

1. Whether the suit promissory notes are true, valid and binding on the defendant?

2. Whether the suit promissory notes are created one?

3. To what relief?

8.Thereafter the suit was posted for trial. During the course of trial, PWs.1 & 2 were examined besides marking of Ex.A-1 to Ex.A-6 on behalf of the plaintiff. On behalf of the defendant, DWs-1 to DW-3 were examined and got marked Exs.B-1 & C-1.

9.Heard arguments of the plaintiff and the defendant. Perused the record.

10. ISSUES 1 and 2: Both the issues are inter-related and interdependent as such they are taken up together for simultaneous discussion to avoid redundancy.

11. The specific case of plaintiff is that the defendant on 21-11-2013 has borrowed an amount of Rs.1,50,000/- under the foot of two different promissory notes, each for Rs.75,000/- from him, agreeing to repay the said 4 amounts together with interest @ 24% per annum on demand either to him or on his order to the holder in due course. But, then the defendant inspite of his repeated oral demands did not oblize to discharge the debt due to him. Whereas the specific contest of defendant is that neither he borrowed amount of Rs.1,50,000/- from the plaintiff on 21-11-2013, nor executed the alleged two promissory notes, each for Rs.75,000/- in favour of the plaintiff but the plaintiff, with the collusion of attestors and scribe got created the two promissory notes for un-lawful gain. Now let me see which of these two rivals versions is correct.

12. The plaintiff in support of his contention, has been examined as PW-1 and has reasserted and reaffirmed the averments of the plaint and has deposed that the defendant on 21-11-2013 has borrowed an amount of Rs.1,50,000/- under the foot of two different promissory notes, each for Rs.75,000/- from him, agreeing to repay the said amounts together with interest @ 24% per annum and has produced two promissory notes under the cover of Exs.A-2 and Ex.A-3 dt.21-11-2013.

13. The plaintiff has thereafter produced the scribe of EXs.A.2 & A.3 and examined him as PW.2. The evidence of PW.2, as could be seen from the averments of his chief examination affidavit, is that the defendant has borrowed an amount of Rs.75,000/- (rupees seventy five thousand only) from Anil Kumar (the plaintiff) under the promissory note dt.21-11-2013 agreeing to repay the said amount together with interest @ 24% p.a and that again the defendant has borrowed an amount of Rs.75,000/- (rupees seventy five thousand only) from Anil Kumar (the plaintiff) under the promissory note dt.21-11-2013 agreeing to repay the said amount together with interest @ 24% p.a and that he (PW.2) has scribed both the promissory notes and 5 that one K.Anjaneyulu and P.Tilak have attested those two promissory notes and that Nagabhushana Reddy (defendant) has received the amount under the said two promissory notes from the plaintiff in his (PW.2) presence.

14. The learned counsel for the defendant, has suggested to PW.1 that the defendant has neither borrowed the amounts under EXs.A.2 & Ex.A.3 nor executed EXs.A2 & A.3 in favour of the plaintiff.

15. Notwithstanding that the defendant, while being examined as DW.1, during the course of his cross-examination has categorically deposed that EXs.A.2 and EX.A.3 contains his signatures as borrower.

16. Thus the plaintiff by examining him as PW.1 and examining the scribe of

EXs.A.2 & A.3 as PW.2 read in conjunction with the contents of Exs.A.2 &

A.3 coupled with the candid admission of DW.1 in his cross-examination has succinctly established that the defendant under the cover of EXs.A.2 and A.3 dt.21-11-2013 has borrowed a sum of Rs.1,50,000/- from him.

17. But the argument of learned counsel for defendant is that EXs.A2 and A.3 were issued towards security for the business. Nevertheless neither EXs.A.2 & A.3 nor the pleadings of defendant in his written statement shows that the defendant has issued EXs.A.2 & A.3 towards security purpose. So, the suggestion put forth to PW.1 is running against the version of defendant unfurled in the written statement inasmuch as the written statement speaks that never the defendant has borrowed the amounts under EXs.A.2 and A.3 from the plaintiff nor executed EXs.A.2 and EX.A.3 in favour of the plaintiff.

18. That apart, according to the averments stated in Para No.6 of the written 6 statement, the plaintiff has obtained the signatures of defendant only on empty papers and cheques. But it is not the contest of the defendant that the plaintiff has obtained his signatures on blank promissory notes. But then the defendant has failed to offer any plausible explanation as to how EXs.A.2 & A.3, promissory notes contains his signatures as a borrower.

19. Now it is apt on my part to refer to Section 118 of Negotiable Instrument

Act, for a better appreciation of evidence and it read as follows:

“Section118 Presumptions as to negotiable instruments:- Until the contrary is proved, the following presumptions shall be made:—(a) of consideration —that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.”

20. Thus, non denial of signatures of defendant on Exs.A-2 and Ex.A-3 drives this Court to presume that Exs.A-2 and Ex.A-3 are supported by consideration unless the contrary is otherwise proved.

21. So, the onus of proof now shifts on to the shoulders of the defendant to establish that Exs.A-1 and Ex.A-2 are not supported by consideration so probable that an ordinary prudent man ought under normal course of circumstances of a case to act upon a supposition that they are not supported by consideration. Now let me see how far the defendant has discharged his burden in establishing non existence of consideration for

Ex.A-2 and Ex.A-3.

22. The contest of defendant in his written statement is that he and the plaintiff had jointly opened a medical shop at Pavagada Road of Madakasira Town.

7

Nonetheless the defendant, while being examined as DW-1 has asserted that he has opened a medical shop at Pavagada Road of Madakasira Town, in the name of his wife - Chandrakala along with the plaintiff. So, the defendant without amending his written statement has changed his version in the evidence affidavit. It is a settled proposition of law that any amount of evidence not in consonance with the contents of pleadings of a party is liable to thrown over board. Thus the evidence of the defendant as DW.1 that he has run medical shop in the name of his wife along with the plaintiff, cannot be accepted.

23. The defendant, while being examined as DW.1 in his cross examination has voluntary testified that during the business affairs he and the plaintiff have exchanged empty promissory notes containing their signatures but after dissolution of business he had handed over blank promissory notes to the plaintiff but the plaintiff did not return his blank promissory notes.

24. So, this evidence of defendant as DW.1 in his cross-examination is running contrary to the averments of his pleadings in written statement.

25. The defendant as DW.1 in his cross examination has admitted that he and the plaintiff did not commence any business. Then the learned counsel for the plaintiff has suggested to DW.1 that since he hasn't commenced any business with the plaintiff, there was no necessity for the plaintiff to obtain the defendant's empty promissory notes. But DW.1 has answered that as his wife commenced business with the plaintiff he has given empty promissory notes towards security for the business.

26. DW.1 at one stage of his cross-examination has been contending that after dissolution of business he handed over blank promissory notes to the 8 plaintiff. In contrast DW.1 at another stage of cross-examination has been contending that he has given empty promissory notes towards security for the business.

27. According to the averments of DW.1 in his chief examination affidavit is that the partnership was dissolved on 28-11-2013 under the cover of EX.B1.

But EX.B1 appears to have been executed on 03-08-2011. Moreover, DW.1 has deposed that there is another deed of dissolution of partnership among him, his wife and the plaintiff. But admittedly he did not produce that deed of dissolution.

28. Thus DW.1 has been giving prevaricating answers at different stages of his cross-examination.

29. The contest of defendant, as could be seen from the contents of his written statement is that the plaintiff in collusion with the attestors and scribe has created promissory notes covered by EXs.A.2 & A.3. Nevertheless the defendant while giving evidence as DW.1 has deposed that he has no enmity with one K.Anjaneyulu s/o. Pathanna (1st attestor), P.Thilak s/o.

P.T.Narasimhareddy (2nd attestor) and PW.2 - Kaluvappa (scribe).

30. So, the evidence of PW.2 - Kaluvappa (scribe) in the absence of any rivalry with the defendant gains confidence of the court.

31. The defendant, although in his written statement has casted aspersions of collusion of both the attestors with the plaintiff for creation of EXs.A.2 and

A.3, the defendant, without offering any proper explanation, has got summoned both the attestors of EXs.A.2 and A.3 and examined them as

DWs.2 & 3 in support of his contention.

9

32. The evidence of DW.2 is that the plaintiff is running a medical store at

Madakasira and that one Thilak is also running a medical store at

Madakasira. He further deposed that he hasn't seen the defendant borrowed amount of Rs.1,50,000/- from the plaintiff on 21-11-2013 and that the defendant in his presence did not sign on EXs.A.2 & A.3. However the plaintiff has obtained his signatures on EXs.A.2 and A.3 when he was at the

Medical Store of one Thilak.

33. The explanation offered by DW.2 to tender his signatures as a witness on

EXs.A.2 and A.3 is that the plaintiff and the other attestor viz.Thrilok @

Thilak are his cousins.

34. DW.2 in his cross examination has testified that by the time he tendered his signature on EXs.A.2 & A.3, the signature of defendant was available on

EXs.A.2 & A.3. He also deposed that one Thrilok @ Thilak (2nd attestor) has signed on EXs.A.2 & A.3 subsequent to his subscribing signatures on

EXs.A.2 & A.3, at the request of Anil Kumar (Plaintiff). DW.2 has further deposed that he signed on EXs.A.2 and A.3 without going through its contents although he was aware of the consequences of singing a document without going through it's contents. It is also well settled proposition of law that the signatures to the documents having been admitted or proved, the contents thereof automatically go into evidence. So DW-2 by admitting his signatures as attestor to Ex.A-2 and Ex.A-3, cannot be permitted to contradict its terms.

35. DW.2 in his chief examination had not at all spoken that EXs.A.2 and

EXs.A.3 contains the signature of defendant by the time he tendered his signature. So also DW.2, in his chief examination has not deposed that one

Thrilok @ Thilak (2nd attestor) has signed on EXs.A.2 & A.3 subsequent to 10 his subscribing signatures on EXs.A.2 & A.3, at the request of Anil Kumar (Plaintiff).

37. DW.2 in his cross examination has deposed that the plaintiff is his cousin and that he no closeness with the defendant. However DW.2, although the plaintiff is his cousin, did not support his case rather he has gone to the extent of supporting the case of defendant, who is stated to have no relationship with the defendant. Thus, the evidence of DW.2 is unnatural to the ordinary course of human conduct and that it appears that DW.2 has been successfully won over by the defendant as otherwise the defendant would not have taken a plea of collusion of DW.2 with the plaintiff.

38. The defendant has got summoned the second attestor of EXs.A.2 & A.3 viz.

P.Thilak and examined him as DW.3 and he has has deposed in chief examination that he is running a medical store at Madakasira for 12 years and that PW.1 (plaintiff) is also running a medical store at Madakasira and that he has never seen the defendant allegedly borrowed the amounts under

EXs.A.2 & A.3 from the plaintiff nor the defendant in his presence had ever executed EXs.A2 & A.3 in favour of the plaintiff. He also deposed that although he knew the defendant he has no much acquaintance with him.

39. DW.3 in his cross-examination is admitted to have stood as a 2nd attestor for EXs.A.2 & A.3. So, the candid admission of DW.3 in his cross- examination has demolishes his entire evidence in chief-examination that he has never seen the defendant allegedly borrowed the amounts under

EXs.A.2 & A.3 from the plaintiff nor the defendant in his presence had ever executed EXs.A2 & A.3 in favour of the plaintiff.

40. Admittedly DW.3 is running a medical store at Madakasira for 12 years and 11 the plaintiff is also running a medical store at Madakasira. Yet another admitted fact is that the defendant is an R.M.P (Registered Medical

Practitioner).

41. Indisputably the defendant's clinic is situated between the shop of plaintiff and DW.3 and that DW.3 has entrusted his letter pads to the defendant for prescribing medicines to the patients to purchase medicines in his shop. So, the possibility of DW.3 supporting the defendant's case due to business rivalry with the plaintiff, as suggested by the counsel for plaintiff, can not be ruled out.

42. Even though the learned counsel for the plaintiff has disputed that DW.3 has received summons standing in the name of Thrilok, he did not dispute that DW.2 has stood as a 2nd attestor of EXs.A.2 & A.3. More so, DW.2 has deposed that Thilak @ Thrilok is the 2nd attestor. So, it is needless to dwell into the subject as to whether DW.3 is Thilak or Thrilok.

43. DW.1 in his cross examination has admitted that he received legal notice from the plaintiff under the cover of EX.A.4. But admittedly no reply was issued to the plaintiff. Non issuance of reply notice to the plaintiff's legal notice covered by EX.A.4 is militating circumstance against the defendant's case.

44. It may be a fact that the defendant contends that soon after receipt of legal notice he raised panchayat before elders. However the written statement is conspicuously salient about the names of the elders, said to have raised panchyat, place of panchayat and date, month or year of the alleged panchayat. The defendant has purposefully undisclosed such information in order to suitably fill up those details to suit his case at a later stage.

12

45. Thus the version of defendant that the suit promissory notes covered by

EXs.A.2 & A.3 are created by the plaintiff with the active connivance of attestors and scribe, is farfetching.

46. In summing up of my discussion, I am constrained to arrive at a only logical conclusion that the defendant has failed to discharge his onus to prove that

Exs.A-2 and Ex.A-3 are not supported by consideration so probable that an ordinary prudent man ought under normal course of circumstances of a case to act upon a supposition that they are not supported by consideration

47. Indisputable the plaintiff by issuing legal notice covered by EXs.A.4 has demanded the defendant to discharge the debts due to him under EXs.A.2 &

A.3. But then the defendant has filed to discharge the debts due to him under EXs.A.2 & A.3 inspite of instituting the suit, which entitles the plaintiff to recover the suit amount due under EXs.A.2 & A.3.

48. Thus Issue Nos. 1 & 2 are answered holding the plaintiff has successfully established that EXs.A.2 & A.3 are true, valid and supported by consideration and he is entitled to recover the suit amount.

49. ISSUE No.3: In the result, the suit is decreed with costs for Rs.2,25,000/- (Rupees Two Lakhs and Twenty Five Thousand Only) along with interest @ 12% per annum on the principal sums adjudged under Exs.A2 and A3 from the date of filing of the suit till the date of decree and thereafter @ 6% per annum until realization.

Typed to my dictation to Copyist, corrected and pronounced by me in the open Court, this the 14 th day of February, Two thousand Eighteen

JUNIOR CIVIL JUDGE

MADAKASIRA

13

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT: PW-1: V.Anil KumarDW-1: P.Nagabhushana Reddy PW-2: KalurappaDW-2: K.Anjineyulu DW-3: P.Thilok

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A-1: Computer generated copy of delivery endorsement Ex.A-2: A marked pronote dt:21-11-2013 Ex.A-3: B marked pronote dt:21-11-2013 Ex.A-4: Office copy of notice dt:06-11-2015 Ex.A-5: Postal receipt dt:06-11-2015 Ex.A-6: Complaint given to postal authorities dt:10-12-2015 FOR DEFENDANT: Ex.B-1: Deed of dissolution of partnership dt:03-08-2011

THROUGH COURT: Ex.C-1: Summons form

J.C.J.

1

In the Court of the Additional Judicial First Class

Magistrate :: Kadiri

Present:- Sri N.RAMESH NAIDU,

Principal Junior Civil Judge Court,

Kadiri

FAC: Additional Judicial Magistrate of First Class,

Kadiri

Tuesday, the 10th day of July, 2018.

Calendar Case No.394 of 2013

Between

State Sub-Inspector of Police, Kadiri Town P.S. (Crime No.207/2013)… Complainant.

And.,

1)Shaik Ali, 30 years, s/o Shaik Allabakash @ Talwar,

2)Shaik Khaja, 22 years, s/o Shaik Allabakash @ Talwar,

3)Shaik Mohammed, 24 years, s/o Shaik Allabakash @ Talawar,

4)Shaik Husain Peera, 20 years, s/o Shaik, Allabakash @ Talwar, … Accused-A1 All are of Nijam Vali colony, Jandamanu area,to A4 Kadiri Town.

This case is presented before me on 03-7-2018 for final hearing in the presence of Assistant Public Prosecutor Sri K.Khadar

Basha, for the prosecution and of Sri A.Chandra Shekar Reddy,

Advocate for A.1 to A.4 and on hearing and upon perusal of available material on record, this court delivered the following:

J U D G M E N T

1. The Sub-Inspector of police, Kadiri Town P.S, while representing state has laid down the charge sheet against A1 to A4 for the offences punishable under sections.452,427 and 506 r/w 34 of IPC.

2. The quintessence of the prosecution case is that A1 had purchased medicines worth Rs.350/- from the informant cum victim-

P.Showkath Ali from his grocery cum medical store, situated at

Kadiri Town and that when A1 had failed to repay the due amount informant cum victim, on 30.9.2013 at about 5.00 PM he noticed 2

A1 passing in front of his store whereby he required A1 to clear off his debt but A1 felt insulted and brought A2 to A4 with him to the grocery cum medical store of informant at about 6.30m PM armed with stick and had criminally entered into his shop where after all of them had broken ward robe glasses and had thrown medicines on the ground that when the informant cum victim had tried to intervene, the accused had threatened him with dire consequences and thereby flood away from his shop.

3. Basing on the report of the informant cum victim at 8.30pm on 30.9.2013, a case in Cr.No.207/2013 of Kadiri Town PS has been registered against the accused under sections.452,427 and 506 r/w 34 of IPC by S.Abdul Rahiman, then SI of police.

4. During the course of investigation he had recorded statement of

LWs1 to 4 viz. P.Showkath Ali, Shaik Jafoor Ali, Shaik Alabakash,

G.Narayana and P.Yakub Khan in part-II CD, visited the scene of offence, prepared rough sketch of crime scene, seized broken glass pieces from the scene of offence under the cover of panchanama in the presence of LWs5 and 6 viz.S.Munna and

S.Abdul Rahiman and thereafter apprehended A1 to A4 at 10.45

PM on 23.10.2011 at Aslam center of Nijam vali colony and produced them for remand. The accused A1 To A4, during the investigation are concluded to have committed the offences punishable under sections.452, 427 and 506 r/w 34 of IPC.

5. The case was taken on file against A.1 to A.4 for the offence punishable U/Secs. 452, 427 and 506 r/w 34 of IPC. On appearance of A.1 to A.4 before this Court, copies of the case documents are furnished as required u/s 207 Cr.P.C. A.1 to A.4 and are examined u/s 239 Cr.P.C by explaining the substratum of charge sheet and when denied charges for the offences punishable U/Secs. 452, 427 and 506 r/w 34 of IPC have been framed against A.1 to A.4 and contents of the charges are read over the contents of the charges and explained to them in Telugu whereupon A1 to A4 denied the charges and claimed to be tried.

6. The prosecution so as to substantiate it’s case has examined

P.Ws.1 to 4 on its behalf and got marked Exs.P.1 to P.4 andMO.1 .

7. After completion of the prosecution evidence A.1 to A.4 have been examined u/s 313 Cr.P.C explaining the incriminating material available from the evidence of P.Ws.1 to 4. However, they denied the incriminating material available against them in the evidence 3 of prosecution whereupon they have denied and reported to havev no defense evidence and as a sequel the defense evidence was closed.

8. I have heard the learned A.P.P. and counsel for defense. I have perused the entire record and given anxious consideration to arguments advanced on either side.

9. Now the points that arise for determination in the case at hand are:

1) Whether the A1 to A4 in further evidence of common intention had criminally tress-passed into the grocery cum medical store of PW1, situated at

Kadiri Town after preparation for assault?

2) Whether the A1 to A4 in further evidence of common intention had committed mis chief and thereby caused damage to PW1 worth exceeding

Rs.50/-.

3) Whether the A1 to A4 in further evidence of common intention had committed criminal intimidation by threatening PW1 to face dire consequences.

POINT NO.1:

10.The specific case of the prosecution is that A1 to A4, in further evidence of their common intention, on 30.9.2013 at about 6.30 pm had criminally entered into the medical store of PW1 carrying iron rods for preparation to assault PW1. Whereas accused had denied of the charge leveled against them and had pleaded innocent whereby the burden of proof rests on the shoulders of the prosecution to drive home the guilt of the accused beyond a reasonable doubt?

11. Now let me see as to how far the prosecution had succeeded in establishing it’s charge under sections. 452, 427 and 506 r/w 34 of

IPC.

12. The prosecution so as to substantiate its charge leveled against the accused has produced the informant cum victim viz. P.Showkath

Ali and examined him as PW1.

13. The earliest version of PW1 as could be sen from the first information report covered by EX.P1 is that at about 6.30 PM on 30.9.2013 A1 to A4, carrying iron rods and sticks had approached his shop, entered therein, vandalizing ward robe glasses, pushed 4 him and damage the articles kept in the shop which resulted in heavy damage.

14. PW1 when it comes to the stage of giving his evidence before the court has deposed that on the date of incident at 6.30 PM A1 accompanied by A2 to A4 came to his shop carrying iron rods and had vandalized his shop.

15. Thus PW1 evidence entire evidence had not at all spoken to that he was ever pushed away by any of the accused nor has deposed that the accused had ever either prepared to assault him or attempted to assault him. Although PW1 in his earliest version covered by EX.P1 has deposed that he was pushed away by the accused, which omission leads to a material contradictions and goes to the prosecution case.

16. According to the earliest version of PW1, viewed from EX.P1 the accused had carried iron rods and sticks for vandalized his shop.

However PW1 while giving evidence before the court had omitted to say that the accused had other carried any sticks for vandalizing his shop which omission is lead to another material contradiction.

17. The investigating agency, without their being any explanation, has neither seized the iron rods nor the sticks, said to have been used by the accused in the vandalizing shop of PW1. So the charge indicted against the accused that all of them I furtherance of their common intention had criminally tress-passed into the shop of

PW1 for preparing to assault PW1, does not gain the confidence of the court.

18. The first point is answered in the negative.

POINT NO.2:

19.The other specific case of the prosecution is that A1 to A4, in furtherance of their common intention had vandalized the ward robe glasses and articles store of PW1 and caused heavy loss to

PW1. Whereas the accused had denied the offense. Now let me see how far to the prosecution has succeeded in establishing this charge.

20. The earliest version of PW1 as could be seen from the first information report covered by EX.P1 and his statement recorded under section 161 of Cr.P.C, is that A1 to A4, with iron rods and sticks had vandalized not only ward robe glasses but also the articles kept in his store and thereby caused heavy loss.

5

21. PW1 during the course of his chief examination has deposed that

A1 accompanied by A2 to A4 with the help of iron rods had damage shop furniture. PW1 had failed to narrate specifically the nature of the shop furniture that she alleged to have been vandalized although PW1 in his report covered by EX.P1 and statement had stated that the accused had damage ward robe glasses of his hop and other articles.

22. PW1 during the course of his cross examination has deposed that the accused had vandalizing his entire shop including medicines, cash counter, chair, glass racks and that those articles have been seized by the police. Nonetheless PW4, the Investigation Officer in this case as categorically deposed that neither medicines nor any furniture in the medical shop had been damage nor he had seized any chair or medicines from the shop of PW1. Thus the evidence of PW4, the Investigation Officer, belies the evidence of PW1 on the other hand the mediator for seizure of damage articles who were examined as PW3 did not support to the case of the prosecution.

23. In the light of my aforementioned discussion the charge leveled against the accused under section,427 of IPC that the accused had vandalized all the articles kept in the shop of PW1 with iron rods and sticks does not inspire the confidence of the court.

24. The 2nd point is also answered in the negative.

POINT NO.3:

25.It is also the case of the prosecution that the accused had threatened PW1 to face with dire consequences. However the accused had denied the charge. The prosecution has examined the victim in support of its charge of PW1.

26. Albeit PW1 in his first information report covered by EX.P1 and statement recorded by the police, had stated that he was abused by the accused in filthy language and had threatened him to see his end in the event he again demands A1 to clear of the debt. The informant cum victim while being examined as PW1, nowhere in his entire evidence had spoken that the accused had ever threatened to see his end in the event he demands to clear off the debt due to him. Nor PW1 has narrated the words of filthy language said to have been used by the accused.

6

27. Thus the charge framed against the accused under section.506 r/w 34 of IPC is proved to be bereft of any evidence.

28. Before parting with my discussion, I would also observe that the prosecution has examined one Allabakash as PW2, who inhis evidence has deposed that on one day at about 4 years ago at 6.30pm pm when he visited the shop of PW1 for purchase of medicines, A1 to A4 came there and threatened PW1. Broken glasses, syrups and left the place.

29. PW1 in his evidence did not whisper that the accused had ever broken glasses in his store nor had thrown syrups. Likewise, although it is not the evidence of PW1 that any syrups were spread over his entire shop, PW2 in his cross examination has deposed that the syrups in the shop were spread over in the entire shop.

30. Though it is not the evidence of PW1 that he was ever assaulted by

PW1 with rods and pushed him, PW2 in his cross examination as gone to the extent of attributing the accused had assaulted PW1 with iron rods.

31. PW1 in his evidence has deposed that he was not maintaining any mobile nor available any telephone in his shop nor tried to informing the alleged incident to the police through his neighbors ,

PW1 in the course of his cross examination has deposed that PW1 had a cell phone through which he conducted the police for informing the incident.

32. PW1 in his evidence has deposed that at 8.30 PM he went to police station and lodged report under EX.P1 with the police. Whereas the evidence of PW2 is that the police within 10 minutes after the incident had come to the scene of offense.

33. Thus the evidence of PW2 has been running diametrically opposite to the evidence of PW1, which creates a solemn doubt about a very presence of PW2 at the scene of offense as otherwise his evidence would have at least corroborated with the evidence of PW1 in respect of some material aspects.

34. PW1 during the course of cross examination has deposed that his report covered by EX.P1 has been drafted by the police on his dictation at the police station after making serious deliberations with his relatives. But PW4, the Investigation Officer has made it clear that the report covered by EX.P1 was not prepared by the police at the dictation of PW1 and that EX.P1 report has been got drafted from outside the police station.

7

35. PW1 has deposed that the police came to his store at 7.40 PM.

Whereas the evidence of PW4-Investigation Officer is that he having received report under EX.P1 from PW1 at about 8.30 PM had registered case, examined PW1 and visited the scene of offense at about 9.30 PM. So the evidence of PW1 is not befitting with the evidence of PW4- Investigation Officer.

36. Though the first information report covered by EX.P1 discloses that

A1 had purchased medicines from PW1 on credit basis, PW1 during the course of his cross examination has deposed that A1 had purchased cosmetics but not medicines, which is another lacunae in the case of the prosecution.

37. Thus regard had been to the circumstances of the case, the evidence of the prosecution witnesses his shabby, prevaricating, full of material omissions, contradictions, which creates a solemn doubt about the complexity of accused in the crime and that the accused are best persons who are entitled to receive benefit of doubt.

38. In the result, A1 to A4 are found not guilty of the charges indicted against them for the offenses punishable under sections.452, 427 and 506 r/w 34 of IPC, and as such accused A1 to A4 are acquitted under section.248(1) of Cr.P.C. The bail bonds of the accused shall be in force for the period of six months in view of sec.437(A) of

Cr.P.C. The non valuable broken glass pieces under the cover of

MO.1, are ordered to be destroyed after cessation of appeal time.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the Open Court on this the 10th day of July, 2018.

(FAC)Addl. Judl. Magistrate of I Class, Kadiri

Appendix of evidence

Witnesses examined for

Prosecution: Defence: P.W.1: P.Showkath Ali, None PW.2: Shaik. Jaffor Ali, PW.3: P.Yakub Khan, PW.4: S.Abdul Rahiman,

Exhibits marked on behalf of Prosecution

Ex.P.1Complaint of PW.1.

Ex.P.2Panchanama 8

Ex.P.3First Information Report in Crime No.207/2013 of Kadiri Town Police Station.

Ex.P.4Rough sketch of the scene of offence.

Exhibits marked on behalf of Defence

Nil

Material objects

MO.1: Broken Glass Pieces

AJFCM

9

Calendar and Judgment

In the Court of the Addl. Judl I Class Magistrate, Kadiri

C.C. No.394 of 2013

Date of offence30.09.2013

Date of complaint30.09.2013

Date of apprehension of 23.10.2013

accused:

Date of release on bail of 29.10.2013

accused

Date of commencement of 03.01.2018

trial

Date of close of trial02.07.2018

Date of sentence or Order 10.07.2018 Explanation of delay if anyDue to non-production of witness by prosecution. Complainant: State Sub-Inspector of Police, Kadiri Town P.S.

Name and particulars of the1) Shaik Ali, 30 years, s/o Shaik Allabakash @ Talwar,

accused:

2) Shaik Khaja, 22 years, s/o Shaik Allabakash @ Talwar,

3) Shaik Mohammed, 24 years, s/o Shaik Allabakash @ Talawar,

4) Shaik Husain Peera, 20 years, s/o Shaik, Allabakash @ Talwar,

All are of Nijam Vali colony, Jandamanu area, Kadiri Town.

Section of law:under sections.452,427 and 506 r/w 34 of IPC. Finding of the accusedFound not guilty Sentence/order In the result, A1 to A4 are found not guilty of the charges indicted against them for the offenses punishable under sections.452, 427 and 506 r/w 34 of IPC, and as such accused A1 to A4 are acquitted under section.248(1) of Cr.P.C. The bail bonds of the accused shall be in force for the period of six months in view of sec.437(A) of Cr.P.C. The non valuable broken glass pieces under the cover of MO.1, are ordered to be destroyed after cessation of appeal time.

(FAC)Addl. Judl Magistrate of I Class,

Kadiri. Copy submitted to the Hon’ble 1st Addl. Sessions Judge, Anantapuramu. Copy to the Supdt of Police, Anantapuramu 1 //True Copy// (FAC)Addl. Judl Magistrate of I Class, Kadiri.