Smt. Nettem Radhika

PRINCIPAL JUNIOR CIVIL JUDGE, ONGOLE

Prl District Court Ongole · Prakasham · Andhra Pradesh

Smt. Nettem Radhika, PRINCIPAL JUNIOR CIVIL JUDGE, ONGOLE, is posted at Prl District Court Ongole, Prakasham, Andhra Pradesh, India. 7,412 court orders on record since 2022. 20 judgments with full text available. Primarily handles OS, EP, A cases.

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OS/605/2011

Peddikuppa Kondala Rao vs Velidi Jalaiah

04 Dec 2024

1-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole

IN THE COURT OF THE I-ADDITIONAL CIVIL JUDGE

(JUNIOR DIVISION) :: ONGOLE

Present: SRI SHAIK IBRAHIM SHARIEF, I-Additional Civil Judge (Junior Division).

(Wednesday, this the 04 th day of December, 2024)

Original Suit No. 605 of 2011

Between:

1. Peddikuppa Kondala Rao (Died), S/o Venkaiah, aged about 59 years, Hindu, Employee, Permanent R/o Bollinenivaripalem, Ongole and Now R/o Martur Village and Mandal.

2. Peddikuppa Seshamma, W/o late Kondala Rao, aged about 61 years, Hindu, C401, Guptas Rayal Apartment, Dharavarithota, Ongole.

3. Sreedhar Peddikuppa, S/o late Kondala Rao, aged about 45 years, Hindu, C401, Guptas Rayal Apartment, Dharavarithota, Ongole.

4. Kalpana Peddikuppa, D/o late Kondala Rao, aged about 41 years, Hindu, #5, Ballapareddy Complex, Kodihalli Main Road, Opposite to Old Air Port, Bangalore, Karnataka State.

5. Sudhakar Peddikuppa, S/o late Kondala Rao, aged about 38 years, Hindu, 201, P.No.66 & 67, Parvati Nilyam, Tulasi Nagar, Road No.1, Kukatpalli, Hyderabad, Telangana State.

(The Plaintiffs 2 to 5 are added as per order in I.A.No.624/2022 dated.01.02.2023) … Plaintiffs 2-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole

And

1. Velidi Jalaiah (died), S/o Tirupali, aged about 70 years, Hindu, retired employee, R/o Bollinenivaripalem, near Kothapatnam Bus Stand, Ongole.

2. Velidi Tirumala Rao, S/o Jalaiah, aged 38 years, Hindu, R/o Sujathanagar, 2nd line, Ongole.

3. Velidi Venkata Durga Prasad, S/o Jalaiah, aged 38 years, Hindu, R/o Sujathanagar, 2nd line, Ongole. (The Defendants 2 and 3 are added as per orders in I.A.No.268/2012 dated.29.03.2012.)

4. Velidi Ramanjamma, W/o late Jalaiah, Hindu, aged 72 years, R/o Sujathanagar, 3rd line, Ongole, Prakasam District.

5. Mutyala Vasantha, W/o Venu, Hindu, aged 50 years, R/o Bollinenivaripalem, Near Jammisettu, Ongole, Prakasam District. (the Defendants 4 and 5 are added as per order in I.A.No.12/2022 dated.14.09.2023) …Defendants

This suit is coming on 25.11.2024 before me for final hearing in the presence of Sri W.R.B.Bharadwaja, Learned Counsel for the Plaintiff Nos.2 to 5 and Plaintiff No.1 died and Sri K.Siva Prasad, Learned Counsel for the Defendant Nos.2 to 5 and Defendant No.1 died, upon hearing the arguments, upon perusing the material available on record and the matter having been stood over for consideration till this day, this Court delivered the following:- 3-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole

// J U D G M E N T //

1. Originally the suit was filed for grant of Permanent

Injunction restraining the Defendants and their men from encroaching CDEF site in CGHI marked passage (subsequently the relief was added as per orders in I.A.No.770/2014 dated.06.09.2017) and to direct the Defendants to demolish that portion of the building and walls constructed in CDEF portion within the time granted by the Court by way of Mandatory Injunction and if the Defendants fail to comply with the said order to permit the

Plaintiffs to get the decree executed through process of law and for costs.

2. THE BRIEF AVERMENTS OF THE PLAINT ARE

THAT:- 2.1.The rough plan may be read as part and parcel of the plaint. “A” marked tiled house belongs to the 1st Plaintiff which he got through a Registered Gift Deed dated.22.05.1996 executed by his mother Pitchamma and brother Jalaiah and since then the 1st

Plaintiff is in Possession and Enjoyment of the same with absolute rights. The “B” marked vacant site belongs to the Defendants. The

CGHI bazaar is the only way to the 1st Plaintiff to reach municipal bazaar situated on the northern side. Except that there is no other passage to the 1st Plaintiff for the ingress and egress in the municipal bazaar. The width of the passage CGHI is 5.9 feet. The 4-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole

Defendants demolished their old house and joint wall situated in between the 1st Plaintiff and the Defendants without the permission of the 1st Plaintiff which was shown as “X” in the plan.

2.2.Recently, the Defendants wanted to construct a new house in the “B” marked vacant site which belongs to the

Defendants. But recently, the 1st Plaintiff came to know that the

Defendants with a view to encroach CDEF marked site in the bazaar shown in the plan started construction. If the Defendants succeeded to encroach CDEF marked portion it will be very difficult to the 1st

Plaintiff to reach the northern side bazaar. The 1st Plaintiff is a law binding citizen. The Defendants are trying to construct house in “B” marked vacant site by encroaching CDEF marked portion without having any manner of right. The 1st Plaintiff requested the

Defendants not to make any construction in the CDEF marked portion but in vain. For the last two days the Defendants are proclaiming in the village that they would encroach the CDEF marked portion and construct their house and also made all arrangements. The 1st Plaintiff cannot resist them as the Defendants are powerful men in the area.

2.3.The Defendants taking advantage of dismissal of

I.A.No.613/2011 on 12.04.2013 proceeded with the construction of the wall along with CDEF and thus encroached CDEF portion and made construction over that wall. In case the claim of the 1st Plaintiff 5-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole is upheld, the construction made pending suit is liable to be removed.

2.4.The 1st Defendant has settled “B” marked property in favour of his two sons i.e., 2 and 3 on 13.10.2011 under

Registered Settlement Deed. Hence they have got right, title,

Possession and Enjoyment over the property. The Defendants 2 and 3 are necessary parties to the suit for proper adjudication of the suit hence they are added as parties.

3.The 1st Defendant filed Written Statement interalia denying the averments of the Plaint and further contended that the

Plaint Plan is totally in correct. The alleged CGHI bazaar with a width of 5.9 feet is not in existence on ground. It is wrongly shown as Plaint Plan that, as if, this Defendant encroaching CDEF place by making some constructions of his building in “B” marked site. The

Suit Schedule is also not correct.

3.1.The Plaintiffs documents i.e., Registered

Settlement Deed dated.22.05.1996 is self-serving document. In the said document there was a reference of link documents. In those link documents there are no measurements of any kind on any side of “A” marked property. But the measurements on all four sides are given in the Registered Settlement Deed dated.22.05.1996. So, it is very clear that there is no basis for the measurements on all sides 6-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole given in the Settlement Deed dated.22.05.1996. So, the Plaintiff willfully not filed the link documents only with a view to suppress the recitals of those documents and to have unlawful advantage.

3.2.As could be seen from the document filed by the

Plaintiff it is clear that there is no document for the Plaintiff to show that the alleged passage width is 5.9 feet except the alleged self serving Registered Settlement Deed. The Learned Advocate

Commissioner report and sketch are also not depicting the true physical features on ground. It is therefore, necessary to redirect the Advocate Commissioner to visit the Schedule Property with due prior notice.

3.3.“B” marked property is an extent of total 9 gadies 19 sq.feet. The Defendant has settled the “B” marked property in favour of his two sons i.e., Velidi Tirumala Rao and Velidi Venkata

Durga Prasad Babu on 13.10.2011 under Registered Settlement

Deed. Thus, they both have got right, title, Possession and

Enjoyment over the Suit Schedule Property on the date of execution of the registered document. “B” marked property site was measured and measurements on four sides were given in the Registered

Settlement Deed dated.13.10.2011. Previously, there was an old tiled house in “B” marked site. It was demolished and the settlees under the Settlement Deed started construction in “B” marked site.

It became an eye-sore to the Plaintiff who is southern side adjacent 7-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole neighbor and he started causing troubles to the owners of “B” marked site. In such a fashion the suit is processed and filed with false allegations.

3.4.In fact, the settles under the Registered Settlement

Deed dated.13.10.2011 are in Peaceful Possession and Enjoyment of “B” marked site. They never encroached any inch of site on the eastern side of their house. In fact on ground the alleged pathway width is 3.8 feet only but it was twisted on paper and the Plaintiff tried to show that it is width of 5.9 feet. So the alleged Plaint Plan and the Plaintiffs version are against the ground realities.

3.5.The previous tiled house in “B” marked house has got eves to a width of 1½ feet towards eastern side. “B” marked site northern side and the southern side measurements is 23 feet site, alleged path way is 3.8 feet on ground. After demolition of old tiled house in “B” marked property, recently, the Plaintiff illegally and highhandedly put up a latrine pipe in the alleged path way and he has extended his latrine pipe of 4 inches to a length of about 1 feet in “B” marked property. Consequently, the dirty water from latrine pipe used to be stagnated in “B” property with foul smell. When it was questioned, the Plaintiff promised that he will remove the same and thereby he is causing nuisance to the “B” property owners. In fact, the Plaintiff has no right to do so. The Plaintiff had put up the said latrine pipe without any right, in the absence of owners of “B” 8-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole marked property as they are residing in the 3rd lane, Sujatha Nagar,

Ongole since 1991. However, the suit is bad for mis-joinder and non-joinder of necessary parties. The Plaintiff has not approached the Court with clean hands. So, he is not entitled for equitable relief of injunction. The joint wall in between A and B properties already collapsed long time ago. “B” plot owners left the said wall and constructed their building in their own site. Therefore, requested the

Court to dismiss the suit with costs.

4.A memo filed by the Defendants 1 and 3 adopting the Written Statement of the 2nd Defendant. The 2nd Defendant filed

Written Statement. The Written Statement of the 2nd Defendant is mutatis and mutandis of the Written Statement of the 1st Defendant.

5.The 1st and 3rd Defendants filed memo adopting the

Additional Written Statement of the 2nd Defendant. The 2nd

Defendant filed additional Written Statement by contending that the width of the pathway is 3 feet 8 inches and it is not disturbed in any way by the Defendants. The width of the pathway is 3 feet 8 inches, but not 5 feet 9 inches as alleged by the Plaintiff in the plaint. The

Defendants never encroached any site of pathway either before or after passing of the order in I.A.No.639/2011 dated.12.04.2013. The

Defendants have strictly followed the order in I.A.No.639/2011 while constructing their building in their own site. The Defendants have also constructed their building with the plan approved by the Ongole 9-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole

Municipality. The Defendants never caused any obstructions to the pathway width of 3 feet 8 inches. The Plaintiff is not entitled to seek for Mandatory Injunction as he approached the Court with unclean hands. The Plaintiff willfully suppressed the true state of affairs.

6.The 4th Defendant filed Written Statement and the same was adopted by the 5th Defendant. The Written Statement of the 4th

Defendant is mutatis and mutandis of the Written Statement of the

Written Statement of the 1st Defendant.

7. Basing on the above pleadings the following issues were settled for trial:-

1. Whether the Plaintiff is entitled for the relief of Permanent Injunction as claimed?

2. To what relief?

8.The following Additional Issues were settled for trial:-

1. Whether the Defendants encroached ‘CDEF’ marked portion as per plaint plan?

2. Whether the Plaintiff is entitled to seek the relief of Mandatory Injunction as prayed for?

3. To what relief?

9.During the course of trial, The Plaintiff examined PWs.1 and 2. The Defendant examined as Dws.1 and 2. The Advocate

Commissioner was examined as CW.1. On behalf of Plaintiff 10-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole

Exs.A1 to A6 are marked. Ex.C1 and C2 are marked through the evidence of CW.1. Exs.B1 to B3 were marked through the Cross

Examination of DW.1. Again Exs.B1 to B8 got marked by the

Defendants through DW.1. However, Ex.B1 to B8 were only marked on behalf of the Defendants.

10.The 1st Plaintiff is examined as PW.1. One

Sivalinga Rao is examined as PW.2. The 2nd Defendant examined as DW.1. One Srinivasa Rao is examined as DW.2. The Advocate

Commissioner Sri D.Raja Rajeswara Rao is examined as CW.1.

11.The Plaintiff got marked Ex.A1 is the Registered

Gift deed dated.22.05.1996 executed in favour of the 1st Plaintiff by his mother and brother. Ex.A2 tax receipts two in number. Ex.A3 is the electricity demand notice. Ex.A4 is the Certified Copy of the mortgage deed dated.25.10.1999. Ex.A5 is the discharge receipt dated.18.10.2011. Ex.A6 is the photographs. Exs.A4 to A6 are marked in the Cross Examination of DW.1.

12.The Ex.B1 is the Registered Settlement Deed dated.22.09.1939 (Doc.No.1528/1939). Ex.B2 is the Registered

Settlement Deed dated.22.09.1939 (Doc.No.1529/1939). Ex.B3 is the Registered Settlement Deed dated.30.01.1964. Exs.B1 to B3 are marked in the Cross Examination of PW.1. Subsequently, the 2nd Defendant who examined himself as DW.1. Ex.B4 is the 11-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole

Registered Settlement Deed dated.13.10.2011. Ex.B5 is the

Certificate issued by Sub-Registrar, Ongole dated.14.02.2012.

Ex.B6 is the Original Plan issued by the Ongole Municipality. Ex.B7 is the House tax receipts. Ex.B8 is the photos with CD.

13.Heard the Learned Counsel for the Defendants. The

Learned Counsel for the Plaintiffs filed Written Arguments.

Perused the material on record.

14.ADDITIONAL ISSUE Nos.1 and 2:

Whether the Defendants encroached ‘CDEF’ marked

portion as per plaint plan?

and

Whether the Plaintiff is entitled to seek the relief of

Mandatory Injunction as prayed for?

14.1.According to the Plaintiffs, the CGHI bazaar is the only way to the 1st Plaintiff to reach the Municipal bazaar situated on the north side. Except that there is no other passage to the 1st

Plaintiff for ingress and egress. The width of the passage i.e., CGHI 5.9 feet. The Defendants demolished their old house and also the joint wall situated in between the 1st Plaintiff and Defendants without the permission of the 1st Plaintiff. The Defendants wanted to construct a new house in “B” marked vacant site which belongs to 12-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole the Defendants. The Defendants are trying to construct house in “B” marked vacant site by encroaching CDEF marked portion.

14.2.According to the Defendants, the plaint plan is totally in correct. The alleged CGIH bazaar with a width of 5.9 feet is not in existence on ground. The Registered Settlement Deed dated.22.05.1996 is a self serving document. There are no measurements in the link documents. There is no basis for the measurements on all four sides given in the Settlement Deed dated.22.05.1996. Previously, there was an old tiled house in “B” marked site and it was demolished. The “B” marked site is an extent of total 9 gadies 19 Sq.feet. The Defendant had settled “B” marked property in favour of his two sons i.e., Velidi Tirumala Rao and Velidi

Venkata Durga Prasad Babu on 13.10.2011. The settles under the

Registered Settlement Deed started construction in “B” marked site and it became an eye-sore to the Plaintiff, who is southern side adjacent neighbor. The Defendants never encroached any inch of site on the Eastern side of their house. In fact, on ground the alleged pathway is 3.8 feet only but it was twisted on paper and

Plaintiff tried to show it as 5.9 feet width. The Plaint Plan and the

Plaintiffs version are against the ground realities.

14.3.Admittedly, the Plaintiffs and the Defendants are neighbors to each other. There is no dispute in respect of existence of “A” marked and “B” marked Plaint Plan properties. The only 13-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole dispute is whether CGHI bazaar is in a width of 5.9 feet or 3.8 feet.

The CGHI is the only way for the Plaintiffs to reach their northern bazaar. There is no dispute that there is a joint wall in between the

Plaintiffs and the Defendants on the Southern side of the

Defendants and Northern side of the Plaintiffs.

14.4.The present suit is filed initially for grant of

Permanent Injunction in respect of CDEF site in CGHI marked property and subsequently the prayer was altered to the demolition of the portion of building on the walls constructed in CDEF portion of

Plaint Plan by way of Mandatory Injunction. The Plaintiff examined himself as PW.1 and he reiterated the plaint averments in his Chief

Examination Affidavit. In his Chief Examination Affidavit he admitted that as per Ex.A1 Registered Gift Deed dated.22.05.1996 the settlors have got the Schedule Property through the link document i.e., Registered Settlement Deed dated.22.09.1939 and Registered

Settlement Deed dated.30.01.1964 (Settlement Deeds are marked as Exs.B1 and B3). PW.1 further admitted that the measurements of the four boundaries of Schedule Property mentioned in Ex.A1 are not reflected in the two Registered Settlement Deeds. Thus, the above admission of PW.1 itself reveals that there are no lineal measurements for the boundaries of the properties of the Plaintiffs.

There is no dispute in respect of the existence of CGHI bazaar. In order to grant the relief of Mandatory Injunction the Plaintiffs must able to establish that they have got right and title over CDEF portion 14-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole of the Plaint Plan Property. The Plaintiffs even did not got served their property before filing the present suit, how the Plaintiffs came to the conclusion that the Defendants have encroached CDEF portion and made construction on their building. PW.1 in his Cross

Examination admitted that except Ex.A1 there is no documentary proof to show that the measurements mentioned in Ex.A1 are correct. Though there is a reference in Ex.B1 regarding the passage for ingress and egress but there is no reference in respect of width and measurements of passage in Exs.B1 to B3. PW.1 categorically admitted that except Ex.A1 there is no other documentary evidence to show that the width of the Plaint Plan

CGHI is 5.9 feet.

14.5.The Advocate Commissioner visited the Schedule

Property for twice and filed his report under Exs.C1 and C2. The

Advocate Commissioner measured the property. In his Cross

Examination CW.1 stated that he did not take the assistance of the surveyor at the time of measuring the disputed passage. He measured the disputed passage with the help of a tape and the same was not mentioned in his report. The Plaintiff got appointed the Advocate Commissioner and after filing his report the

Defendants filed a petition to give redirection to him to visit the

Schedule Property again and accordingly he visit the Schedule

Property and given a report under Ex.C2. Neither of the parties seek the assistance of the Municipal surveyor to visit the Schedule 15-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole

Property with the assistance of the Advocate Commissioner.

However, as already stated in the link documents of Ex.A1 there is no mention about the lineal measurements. In the absence of any such lineal measurements it is not possible for the surveyor to survey the property with the help of the documents. When the

Plaintiffs are stating that the disputed CGHI passage is in a width of 5.9 feet the burden lies on them to prove by cogent and convincing material before the Court. However, the Advocate Commissioner in his evidence stated that the disputed passage is about 3 feet 10 inches only after excluding the width of the beam. On the other hand, Advocate Commissioner categorically stated that there is no objection from either parties and their counsel at the time of measuring disputed passage with the help of a tape. He found that the width of the passage is 3.10 feet on the Northern end, 4.2 feet in the middle and 3.10 feet on the Southern end. Thus, at no point of the passage the width of passage is 5.9 feet. Since neither party have raised any objection the Advocate Commissioner filed his report under Ex.C2. A perusal of Ex.C2 the report of the Advocate

Commissioner reveals that at 1st beam the width of the passage is 3.10 feet, (excluding the beam length) and Eastern wall. The passage covered with naparallu. Thus, the report of Advocate

Commissioner itself reveals that there is a Napa Stone passage on

CGHI. The Advocate Commissioner did not find any traces of encroachment. PW.1 in his Cross Examination admitted that there is an order in I.A.No.613/2011 dated.12.04.2013 to the effect that the 16-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole

Respondent can make their constructions without encroaching the 3.10 feet passage and that it was affirmed by the Hon’ble Appellate

Court vide C.M.A.No.22/2013 dated.24.10.2018.

14.6.The Plaintiffs have examined PW.2 a resident of

Kesavaraogunta and in his evidence he stated that “B” marked vacant site belongs to the Defendants. The CGHI bazaar is only way to reach the Plaintiffs to reach the Municipal bazaar situated on the Northern side. He further stated that the width of the CGHI is 5.9 feet and the length is 30 feet. He was tenant of the Schedule

Property for a period of 12 years. But during the course of Cross

Examination PW.2 stated that the property of either parties is not measured in his presence and he does not know either parties got measured in his presence and he does not know who prepared his

Chief Examination Affidavit. He categorically stated that there is no mention in his Chief Affidavit about “B” marked property and CGHI bazaar length and width. Thus, PW.2 does not know the suit facts.

14.7.Except PW.2, the Plaintiff did not produce any material before the Court. Even the Plaintiff did not examine any neighboring land owners to show that the width of CGHI is 5.9 feet.

Since there is no documentary evidence about the width of the disputed bazaar at least the Plaintiffs would have examined the neighboring land owners to show that the width of the dispute bazaar is 5.9 feet and that the Defendants by encroaching the 17-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole disputed passage have made constructions. In the absence of any such material the contention of the Plaintiffs that the Defendants have encroached 2.2 feet width and raised walls cannot be accepted.

14.8.However, the 2nd Defendant who examined himself as DW.1 in his Cross Examination stated that his father and his paternal uncle got partitioned their joint family properties and there is no documentary proof in evidencing the same and he admitted that to reach the northern bazar from Plaintiffs house there is a passage towards east. He denied that the said passage is in a width of more than 5 feet 10 inches. He admitted that the Plaintiff’s mother and his brother by name Jalaiah executed Settlement Deed in the year 1996 in respect of entire A-marked property. The Plaintiff is not residing in

A-marked property since 1985. The above evidence of DW.1 reveals that there is a close relationship between the Plaintiffs and the Defendants. In his Cross Examination DW.1 stated that his father mortgaged “B” marked property in Co-operative bank and he does not know whether there is mention of measurements of B-

Marked property in the mortgage deed. He admitted that the schedule referred in Exs.A4 and A5 is their property i.e.,”B” marked property as per Plaint Plan and that the Eastern boundary is referred

Peddikuppa Pitchamma’s passage and site. Even the above admission of DW.1 reveals that the width of the passage is not referred except referring it as a passage.

18-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole 14.9.The Plaintiffs are vehemently contended that the

Defendants have encroached 2.2 inches of site and raised the structures even to show such an encroachment there is no basis for the Plaintiff except Ex.A1 Settlement Deed. For the reasons best known to the Plaintiffs they did not even taken the assistance of the surveyor for survey of the properties of the Plaintiffs and the

Defendants with their respective documents. In the absence of any such material before the Court the contention of the Plaintiffs that the Defendants have encroached 2.2 feet inches in CDEF portion and raised the walls cannot be accepted.

14.10.On the other hand, the Defendants have examined DW.2 who is the relative of the Plaintiffs and the

Defendants. In his evidence he stated that he is having tiled house but it is in dilapidated condition. In his Cross Examination he stated that he is the Western owner of the property owned by the 1st

Defendant settled in favour of the Defendants 2 and 3 by the date of demolition the old house covered by Settlement Deed but there is no proof to that effect. He further reiterated that he is residing on the western side of the property. He categorically stated that he has not taken the measurements of the width of the passage but it is 3 or 3½ feet. Thus, the evidence of DW.2 also reveals that the width of the passage is not 5.10 feet. The Plaintiffs have not produced any cogent and convincing material before the Court to show that the width of CDEF of plaint plan is 5.10 feet and that the Defendants 19-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole have encroached 2.2 feet width and raised their structures. In the absence of any concrete material before the Court it is unsafe to direct the Defendants to demolish the walls constructed in CDEF portion of the plaint plan. Accordingly, these issues are answered against the Plaintiffs.

15.ISSUE NO.1:-

Whether the Plaintiff is entitled for the relief of Permanent

Injunction as claimed?

The Plaintiff originally filed the suit for grant of Permanent

Injunction in respect of CDEF site of CGHI marked passage. But subsequently, the Plaintiff amended the relief to direct the

Defendants to demolish that portion of the building and walls constructed in CDEF portion as per the orders in I.A.No.770/2014 dated.06.09.2017. The Neat Copy of Plaint reveals that the Plaintiff is not seeking any consequential relief of injunction. Therefore, this issue is answered. Accordingly, this issue is answered.

16.ADDITIONAL ISSUE NO.3:

To what relief?

IN THE RESULT, the suit is dismissed with costs.

Dictated by me to the Stenographer, transcribed by her,

corrected and pronounced by me in open court on this the 04 th day of December, 2024.SD/-SHAIK IBRAHIM SHARIEF

I-ADDITIONAL CIVIL JUDGE

(JUNIOR DIVISION),

ONGOLE.

20-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole

// APPENDIX OF EVIDENCE //

Witnesses Examined

For Plaintiffs

PW1 : Peddikuppa Kondala Rao PW.2: Avisineni Sivalinga Rao

CW.1: D.Raja Rajeswara Rao

For Defendant

DW.1: Velidi Thirumala Rao DW.2: Velidi Srinivasa Rao

Documents Marked

For Plaintiff :

Ex.A1 is the Registered Gift deed dated.22.05.1996. Ex.A2 is the Tax receipts (2) in number. Ex.A3 is the Electricity demand notice dated.23.10.2011. Ex.A4 is the Certified copy of Mortgage Deed dated.25.10.1999. Ex.A5 is the Certified copy of discharge receipt dated.18.10.2011. Ex.A6 is the Four Photographs.

For Defendant:

Ex.B1 is the Registered Settlement Deed dated.22.09.1939. Ex.B2 is the Registered Settlement Deed dated.22.09.1939. Ex.B3 is the Registered Settlement Deed dated.30.01.1964. Ex.B4 is the Original Registered Settlement Deed dated.13.10.2011. Ex.B5 is the Certificate issued by Sub-Registrar, Ongole dated.14.02.2012. Ex.B6 is the Original Plan issued by Ongole Municipality for B- Marked property dated.19.12.2011. Ex.B7 is the House receipt (2) in number. Ex.B8 Photos with CD.

21-21 O.S.No.605 of 2011 on the file of I-Additional Civil Judge (Junior Division), Ongole

Ex.C1 is the Report along with plan dated.29.12.2011. Ex.C2 is the Report along with plan dated.07.03.2013.

SD/-SHAIK IBRAHIM SHARIEF

I-ADDITIONAL CIVIL JUDGE

(JUNIOR DIVISION),

ONGOLE.

OS/506/2021

Muppavarapu Singamma vs Patibandla Veeranjaneyulu

04 Dec 2024

OS NO.506/2021

PCJ(JD) Court/ONGOLE DT:04-12-2024

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (JUNIOR

DIVISION)::ONGOLE

Present: SMT.NETTEM RADHIKA

Principal Civil Judge (Junior Division), Ongole

(Wednesday, this the 04th day of December, 2024)

O.S.No.506/2021

BETWEEN:

Muppavarapu Singamma...... Plaintiff

AND

Patibandla Veeranjaneyulu...... Defendant

This Suit came up on 26.11.2024 for final hearing before me in the presence of Sri.M.Ajoy Babu, Learned Counsel for the Plaintiff and of Sri.A.Ramaiah, Learned Counsel for the Defendant, upon hearing the arguments, upon considering the material available on record and the matter having been stood over for consideration till this day, the Court doth order and delivered the following:

// J U D G M E N T //

1. This is a Suit filed by the Plaintiff against the Defendant for recovery of Rs.11,31,200/- (Rupees Eleven Lakhs Thirty One Thousand and

Two Hundred only) against the Defendant, with subsequent interest and costs, basing on the Promissory Note dated 17.04.2019, with the following averments:-

2. THE CASE OF THE PLAINTIFF IN BRIEF:

2.1)On 17.04.2019 the Defendant borrowed an amount of

Rs.7,40,000/- (Rupees Seven Lakhs and Forty Thousand only) from the

Plaintiff for his Family necessities. Evidencing the same, the Defendant executed a Promissory Note in his own handwriting in favour of the Plaintiff at

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Ongole, agreeing to repay the said amount with interest at the rate of 24% per annum either to the Plaintiff or to her order on demand.

2.2)Despite the repeated demands made by the Plaintiff personally and also through mediators, the Defendant though promised but did not choose to pay the amount due to the Plaintiff. The Defendant indebted to several others for the education of his children and acquired properties in the name of his family members. The Defendant is an Employee and is going to retire within short time and is trying to withdrawn the amounts with an intent to defeat the interest of genuine creditors like Plaintiff. On 17.06.2021 the Plaintiff got issued Legal Notice to the Defendant demanding to discharge the debt due under the Promissory Note, the Defendant got returned the same and did not choose to pay the amount. Hence, the Plaintiff was constrained to file the Suit for the above said relief.

3. THE CASE OF THE DEFENDANT IN BRIEF:

3.1)The Defendant filed the Written Statement by denying the material allegations leveled in the Plaint and submitted that the Defendant did not borrow any amount from the Plaintiff either on 17.04.2019 or on any other date so also did not execute the Suit Promissory Note. The Defendant did not borrow any amount mentioned in the Promissory Note and the Suit Promissory

Note is a forged Promissory Note.

3.2)There are some disputes in between the Plaintiff and the

Defendant in connection with family matters. The Defendant did not receive any amount from the Plaintiff under the alleged Promissory Note. In order to harass the Defendant, the Plaintiff forged the Promissory Note with the help of her husband. The Plaintiff by managing the postal employee got made false

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endorsement and got return the notice. The Plaintiff is not entitled to any decree. The Plaintiff has no capacity to lend such an amount and there is no necessity to the Defendant to borrow such an amount. Finally, the Defendant prayed the Court to dismiss the Suit.

4. ISSUES:-

Based on the respective pleadings of the Plaintiff and Defendant, the following issues are settled on 26.06.2023 for Trial.

1. Whether the Suit Promissory Note dated 17.04.2019 is true, valid and binding on the Defendant ?

2. Whether the Plaintiff is entitled for recovery of the Suit amount from the Defendant as prayed for ?

3. To What Relief ?

5. TRIAL:-

During the Trial, the Plaintiff herself examined as PW.1 and examined PW.2 who is said to be the 1st Attestor of the Suit Promissory Note and got marked the Original Suit Promissory Note dated 17.04.2019 for

Rs.7,40,000/- as Ex.A1, the Office Copy of registered Lawyer Notice dated 17.06.2021 as Ex.A2 and the Returned Postal Cover dated 25.06.2021 as

Ex.A3. The Defendant himself examined as DW.1 and no documentary evidence was adduced on his behalf.

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

7. ISSUE NO.1:-

Whether the Suit Promissory Note dated 17.04.2019 is true, valid

and binding on the Defendant ?

7.1)The Learned Counsel for the Plaintiff contended that from the testimonies of PW.1 & PW.2 coupled with Exs.A1 to A3, it is very clear that on

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17.04.2019 the Defendant borrowed an amount of Rs.7,40,000/- from the

Plaintiff for his Family expenses and executed Ex.A1/Promissory Note in his own handwriting in favour of the Plaintiff and the Plaintiff could able to establish the due execution of Ex.A1/Promissory Note by the Defendant. It is further contended that having borrowed the amount under Ex.A1/Promissory

Note, the Defendant did not choose to make payment despite the requests made by the Plaintiff and issuance of Ex.A2/Legal Notice and got returned the same under Ex.A3/Returned Postal Cover, for the reasons best known to him.

7.2)Per contra, the Learned Counsel for Defendant contended that due to disputes between the families of Plaintiff and Defendant, the Plaintiff created Ex.A1/Promissory Note by forging the signatures of the Defendant with the help of her husband; and that the Defendant never borrowed any amount from the Plaintiff and never executed Ex.A1/Promissory Note in favour of the Plaintiff and prayed the Court to dismiss the Suit.

7.3)According to Section 101 of Indian Evidence Act, 1872, the initial burden is on the Plaintiff to prove that on 17.04.2019 the Defendant borrowed an amount of Rs.7,40,000/- from the Plaintiff for his Family expenses and executed the Ex.A1/Promissory Note since the Defendant very much denied the entire transaction under Ex.A1/Promissory Note and taken the plea of ‘Forgery’.

7.4)In order to discharge the initial burden casts upon her, the Plaintiff herself examined as PW.1 and also examined PW.2 who is stated to be the 1st

Attestor of the Suit Promissory Note. The Plaintiff as PW.1 filed her Evidence

Affidavit in lieu of her Examination-in-Chief by reiterating the contents of the

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Plaint. PW.2 also filed Evidence Affidavit in lieu of his Examination-in-Chief, supporting the case of the Plaintiff.

7.5)In the cross-examination, PW.1 deposed that she does cultivation and also maintaining Prawn tanks situated in Devarampadu Village. PW.1 further deposed that she has no documentary proof to show that she has been running Prawn tanks in their lands. PW.1 further deposed that she is not personally maintaining or looking after the Prawn tanks and her husband is maintaining the same. PW.1 further deposed that the Defendant is the son of cousin sister of her husband and he is an Employee. PW.1 further deposed that she lent an amount of Rs.7,40,000/- on 17.04.2019 to the Defendant and the transaction took place in the house of the Defendant. PW.1 further deposed that at the time of transaction one Muppavarapu Venkata Rao and

Nanepaneni Venkateswara Rao acted at attestors and the Defendant himself scribed the Promissory Note. PW.1 denied the suggestion that her contention that the Defendant has many debts and he purchased the properties in the name of his family members with the borrowed amounts is not correct. PW.1 admitted that by the time of issuance of Ex.A2/Legal Notice the Defendant was working in Venkatagiri. PW.1 volunteers that the family of the Defendant has been residing in Ongole only. PW.1 further deposed that she got issued

Ex.A2/Legal Notice to the address of Ongole. PW.1 further deposed that the denomination is consisting of Five Hundred Rupee notes and Two Thousand

Rupee Notes. PW.1 further deposed that she got the Promissory Note amount out of Prawn Tanks Business. PW.1 admitted that PW.2 is her relative. PW.1 denied the suggestion that as on 17.04.2019 the Defendant was working in

Adoni of Kurnool District and he did not come to Ongole on that day as such her contention that she went to the house of Defendant in Ongole and gave amount to the Defendant and he executed Promissory Note in her favour is not

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correct. PW.1 also denied the suggestion that she created the Suit Promissory

Note with the assistance of attestors who are her relatives; and that she has no capacity to lend an amount of Rs.7,40,000/-; and that the Defendant has no necessity to borrow such huge amount as he is getting good salary.

7.6)In the cross-examination, PW.2 deposed that he is a retired RTC

Conductor and the Plaintiff is his relative. PW.2 further deposed that the transaction took place on 17.04.2019 at the house of Defendant situated in

Ongole. PW.2 further deposed that the Defendant borrowed an amount of

Rs.7,40,000/- and he along with the Plaintiff and her husband Anjaneyulu together went to the house of Defendant. PW.2 further deposed that he along with one N.Venkateswara Rao who is their villager signed as attestors on the

Promissory Note. PW.2 denied the suggestion that on the date of

Ex.A1/Promissory Note i.e., on 17.04.2019 the Defendant was on duty in

Adoni and hence, he along with the Plaintiff went to the house of Defendant in

Ongole and the Plaintiff lent amount to the Defendant and he executed

Ex.A1/Promissory Note does not arise.

7.7)In order to counter blast the testimonies of PW.1 & PW.2, to disprove the case of the Plaintiff and to establish his case, the Defendant himself stepped into witness box as DW.1 by filing Chief-Examination Affidavit by reiterating the contents of the Written Statement. In the cross-examination,

DW.1 deposed that he retired as an Assistant Commissioner, Ongole

Municipal Corporation. DW.1 further deposed that the Plaintiff in this Suit is the wife of the cousin of his mother. DW.1 further deposed that there are no Civil cases pending in between their families in respect of properties. DW.1 further deposed that his elder son is a Doctor and younger son is a Software

Engineer. DW.1 further deposed that he has gone through the Suit Promissory

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Note and it is mentioned in the Suit Promissory Note that the same was written in own handwriting of the executant. DW.1 further deposed that he has no knowledge who are the supporting witnesses on behalf of the Petitioner and whether they gave evidence or not. DW.1 denied the suggestion that he knows

PW.2 and on his instructions he was cross-examined; and that he is intentionally deposing false. DW.1 also denied the suggestion that

Ex.A1/Promissory Note is in his handwriting and that he is deposing false.

DW.1 further deposed that the writings and signatures on Ex.A1/Promissory

Note are identical to that of his handwriting and signatures but they are not that of him. DW.1 further deposed that during the course of employment he has appended signatures and his writings are available in the offices in which he has worked. DW.1 further deposed that he is ready to send the Suit

Promissory Note to the Expert along with his admitted signatures and writings.

DW.1 denied the suggestion that he has borrowed an amount of Rs.7,40,000/- from the Plaintiff on 17.04.2019 and executed Promissory Note in his own handwriting. DW.1 also denied the suggestion that he is liable to pay the Suit amount to the Plaintiff.

7.8)From the Written Statement of the Defendant, it is his plea that the writings and signatures on Ex.A1/Promissory Note are not that of him; and that due to disputes in between the families of Plaintiff and Defendant, the Plaintiff created Ex.A1/Promissory Note by forging the signatures of the Defendant with the help of her husband. In the entire Written Statement the Defendant did not state and specify the nature of the disputes cropped up in between their families and when they were cropped up in between them. As seen from the cross-examination of PW.1 & PW.2, the Defendant did not pose any questions to PW.1 & PW.2 as to the so-called disputes between the families of Plaintiff and Defendant. Hence, the case of the Defendant that due to disputes in

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between their families, the Plaintiff created Ex.A1/Promissory Note and fabricated the same by forging the signatures of Defendant with the help of her husband and filed the Suit, is not believable.

7.9)As seen from Written Statement and cross-examination of PW.1, it is the contention of the Defendant that PW.1 has no capacity to lend an amount of Rs.7,40,000/- to the Defendant. The amount under Ex.A1/

Promissory Note is Rs.7,40,000/-. In the cross-examination, PW.1 categorically stated that she got the Promissory Note amount out of her Prawn

Business and she is doing Cultivation and also maintaining Prawn Tanks. It is true that the Plaintiff has not filed any document to show that she has been doing Prawn Business. When the Plaintiff has categorically stated that she got the amount out of her Prawn Business, the Defendant did not put any further questions to PW.1 in respect of Prawn Business and income of the Plaintiff. In the absence of the same, the contention of the Defendant that the Plaintiff has no capacity to lend an amount of Rs.7,40,000/- to the Defendant pales into significance.

7.10)When it comes to the cross-examination of PW.1, the Defendant came up with the plea of Alibi. When the Defendant has taken the plea of Alibi, it is for the Defendant to establish the same. Further, the Defendant has not taken the plea of Alibi in his Written Statement. It is settled legal proposition that the evidence beyond pleadings cannot be considered. Even otherwise the

Hence, in the absence of any material, the contention of the Defendant that on

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the date of transaction he did not come to Ongole on the date of transaction, is not believable.

7.11)In the entire cross-examination of PW.2, it is not the case of the

Defendant that he has any disputes with him and another attestor. Thus, no animosity was attributed by the Defendant against PW.2 and another attestor.

Thus, it can safely be held that there are no disputes between PW.2 and the

Defendant. When such is the case, PW.2 has no necessity to depose evidence against the Defendant.

7.12)The Defendant has cross-examined PW.2 at length and made futile exercise to create dent in his cross-examination as to the transaction.

The Defendant though cross-examined PW.1 & PW.2 at length, he could not made any dent with regard to the Suit transaction on the material aspects of borrowal of amount, execution of Ex.A1/Promissory Note by the Defendant except putting suggestions. Mere putting suggestions is not suffice and the

Defendant has to place cogent and convincing material to disprove the case of the Plaintiff and to substantiate his defence set out the Written Statement.

Further, the testimonies of PW.1 & PW.2 throughout their cross-examination are consistent and corroborated on the material aspects of borrowal of amount by the Defendant and execution of Ex.A1/Promissory Note in favour of the

Plaintiff and the presence of PW.2 at the time of transaction. Thus, the testimonies of PW.1 & PW.2 are believable and trustworthy.

7.13)The entire cross-examination of PW.1 & PW.2 and the Written

Statement of Defendant are silent whether the writings and signatures of the

Defendant are available with the Plaintiff, why because one cannot forge the writings and signatures of others without having and knowing their writings and

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signatures. Except putting suggestions to PW.1 & PW.2 that Ex.A1/Promissory

Note is a forged document, the Defendant did not elicit any favourable answers from them to substantiate his defence that the writings and signatures on Ex.A1/Promissory Note are forged, as to availability of his writings and signatures and the alleged collusion in between PW.1 & PW.2.

7.14)When the testimonies of PW.1 & PW.2 and DW.1 coupled with

Exs.A1 & A2 are taken as whole, this Court is of the considered view that the

Plaintiff could able to establish that on 17.04.2019 the Defendant borrowed an amount of Rs.7,40,000/- from her and executed Ex.A1/Promissory Note and hence, the Plaintiff discharged her initial burden casts upon her and then onus of proof shifts on to the Defendant to disprove the case of the Plaintiff and to prove his case. But as indicated above, the Defendant though cross-examined

PW.1 & PW.2 at length could not elicit any favourable answers in favour of his defence set out in the Written Statement and to impeach the creditworthiness of PW.1 & PW.2 and to disbelieve their testimonies. Further, the Defendant did not choose to send Ex.A1/Promissory Note to the Expert though he categorically deposed in his cross-examination that he is ready to send

Ex.A1/Promissory Note along with his admitted signatures and writings. It is true that the Plaintiff also did not take any steps to send Ex.A1/Promissory

Note. But when the Plaintiff herself examined as PW.1 and also examined the first attestor of Ex.A1/Promissory Note as PW.2 apart from marking the Suit

Promissory Note dated 17.04.2019 as Ex.A1, the Office Copy of Lawyer

Notice dated 17.06.2021 as Ex.A2 and Returned Postal Cover as Ex.A3 to support her case, the testimonies of PW.1 & PW.2 are unshaken throughout their cross-examination and they are consistent and believable, the Defendant ought to have taken steps to send Ex.A1/Promissory Note to the Expert to establish that the signatures and writings on Ex.A1/Promissory Note are

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forged, but the Defendant did not make any efforts, for the reasons best known to him.

7.15)In view of the foregoing discussion, this Court is of the considered view that the Plaintiff has discharged the initial burden casts upon her and established that on 17.04.2019 the Defendant borrowed an amount of

Rs.7,40,000/- from her and executed Ex.A1/Promissory Note and the

Defendant failed to establish the onus of proof shifted on him and to disprove the case of the Plaintiff and to prove his case and hence, this Court is of the considered view that Ex.A1/Promissory Note is true, valid and binding on the

Defendant. Accordingly, this Issue is answered in favour of the Plaintiff and against the Defendant.

8. ISSUE NO.2:-

Whether the Plaintiff is entitled for recovery of the Suit amount

from the Defendant as prayed for ? This Court already held at Issue No.1 that Plaintiff has discharged the initial burden casts upon her and established that on 17.04.2019 the

Defendant borrowed an amount of Rs.7,40,000/- from her and executed

Ex.A1/Promissory Note and the Defendant failed to establish the onus of proof shifted on him and to disprove the case of the Plaintiff and to prove his case and hence, this Court is of the considered view that Ex.A1/Promissory Note is true, valid and binding on the Defendant, thus there arises an obligation on the part of the Defendant to discharge the debt covered under Ex.A1/Promissory

Note and hence, the Defendant is liable to discharge the debt due under

Ex.A1/Promissory Note and the Plaintiff is entitled to recover the same from the Defendant. This Issue is answered in favour of the Plaintiff and against the

Defendant.

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9. ISSUE NO.3:-

To What Relief ?

In view of the discussion and findings of this Court on Issue Nos.1 & 2, this Court is of the considered opinion that the Suit of the Plaintiff is liable to be decreed with costs. This Issue is answered accordingly.

10. IN THE RESULT, the suit is decreed with costs against the

Defendant for a sum of Rs.11,31,200/- (Rupees Eleven Lakhs Thirty One

Thousand and Two Hundred only) and subsequent interest at the rate of 12% per annum from the presentation of the suit till the date of decree, and thereafter, at the rate of 6% per annum till realization on the principal sum of

Rs.7,40,000/- (Rupees Seven Lakhs and Forty Thousand only).

{{Typed to my dictation to the Stenographer (Grade-III), corrected, signed and

pronounced by me in the open Court, this the 04 th day of December, 2024.}}

SD/-NETTEM RADHIKA

PRL.CIVIL JUDGE (Junior Division), ONGOLE

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR PLAINTIFF FOR DEFENDANT

PW:1Muppavarapu SingammaDW:1 Patibandla Veeranjaneyulu

PW:2Muppavarapu Venkatarao

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DOCUMENTS MARKED

FOR PLAINTIFF FOR DEFENDANT

Ex.A1: Original Promissory Note dated 17.04.2019 for Rs.7,40,000/-.

Ex.A2: Office copy of registered Lawyer -NIL- Notice dated 17.06.2021.

Ex.A3: Returned Postal Cover dated 25.06.2021.

ID/-NR PCJ(JD)/OGL

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