Smt. P.Gayathri

OS.No.08/20181JCJ Court, Puttaparthy

IN THE COURT OF THE JUNIOR CIVIL JUDGE, PUTTAPARTHY.

Present : Smt. P.Gayathri, Principal Junior Civil Judge, Dharmavaram.

FAC OF JUNIOR CIVIL JUDGE, PUTTAPARTHY.

Friday, the 27th day of December, 2019.

ORIGINAL SUIT No.08/2018

Between:

1.C.Naryana Reddy S/o Nagi Reddy, aged about 55 years, Hindu, Agriculturist, Siddarampuram, Bukkapatnam Mandalam.

2.C.Baya Reddy S/o C.Nararayana Reddy, aged about 29 years, Hindu, Agriculturist, Siddarampuram, at present TeacherinElementarySchool,Nagavanipalli, Amarapuram.

...Plaintiffs.

And

1.Yeddula Narayana Reddy W/o Narasimhappa, aged about 60 years,

2.S.Obi Reddy S/o Somaghatta Chenna Reddy, aged about 40 years,

3.S.Subhashini W/o Obi Reddy, aged about 28 years,

All are Hindus, Agriculturist, Siddarampuram, Bukkapatnam Mandal.

...Defendants.

This suit came up for final hearing before me on 29.11.2019 in the presence of Sri D.Pakkerappa Reddy and Sri R.Sreekanath Reddy, learned Advocate for the plaintiffs and Sri L.Viswanath, learned Advocate for the defendants and upon hearing both sides and on perusing the material available on record this Court delivered the following:-

J U D G M E N T

1.This suit is filed seeking the relief of declaration of the title of the plaintiffs in respect of the plaint schedule property comprising of agricultural land in an extent of Ac.0.53 cents out of 03-132 cents in survey number 193 and Ac.2-55 out of 11-35 cents in survey number 194 situated within the limits of Siddarampuram

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Revenue village and to restrain the defendants by way of permanent injunction and award costs of the suit.

2.The averments of the plaint in brief are that the plaintiff No.1 is the father of the plaintiff No.2. The defendant No.1 is the sister of the plaintiff No.1 and

Yeddula Narasimhappa was her husband. The plaintiffs further submitted that the plaintiff No.1 and his two brothers partitioned the properties under Registered partition deed dated 14-06-1982 and the land in an extent of Ac.0.71 cents in

S.No.194 along with some other properties fell to the share of the plaintiff No.1 in the said partition.

3.The plaintiffs further submitted that Yeddula Narasimhappa, Yeddula

Bayappa, Yeddula Narappa, Yeddula Kristappa and Yeddula Adeppa are brothers and they constituted joint Hindu family and they owned considerable movable and immovable joint family properties. The plaintiffs further submitted that as Yeddula

Narasimhappa was an intelligent person being capable managed the properties of

Hindu joint family properties. The plaintiffs further submitted that Yeddula

Narasimhappa out of the joint family fund pruchased Ac.78.00 cents of S.No.193 out of Ac.03.13 cents and Ac.2.84 cents in S.No.194 out Ac.11.35 cents situated

Siddapuram Village under a registered sale deed dated 17-12-1956 along with some other properties for the benefit of joint family, jointly along with C.Venkata Reddy.

4.The plaintiff further submitted that as Yeddula Narasimhappa jointly purchased the said land from the joint family funds. Yeddula Narasimhappa and his brothers got half share in Ac.00.78 cents in S.No.193 and Ac.2-84 cents in S.No.194.

The plaintiffs further submitted that Yeddula Narasimhappa and his brothers partitioned the half share in S.No.193 and 194. The plaintiff further submitted that

Yeddula Narasimhappa died issue less and the Yeddula Kristappa has no children. The plaintiffs further submitted that Y.Kristappa gifted his share of land in S.Nos.193 and 194 along with some other land in another survey number to Yeddula Bayappa under a registered gift deed dated 14-12-1964. The plaintiffs further submitted that the said

Y.Bayappa purchased an extent of Ac.0.26 ½ cents in S.No.193 and Ac.0.92 ½ cents in

S.No.194 from joint purchaser that is Chitivolu Venkata Reddy under a registered

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sale deed dated 12-12-1977. The plaintiffs further submitted that thus Yeddula

Bayappa got Ac.0.53 cents in S.No.193 and Ac.1.85 cents in S.No.194.

5.The plaintiffs further submitted that Y.Bayappa gifted the said land with specific boundaries to the plaintiff No.1 under a registered gift deed dated 21-08-1977 as the plaintiff No.1 is the brother of the defendant No.1.

6.The plaintiffs further submitted that the plaintiffs got Ac.3.08 cents in

S.No.194 and Ac.053 cents in S.No.193. The plaintiffs further submitted that the plaintiff No.1 obtained loans over the lands from Primary Agricultural Society as his name was mutated in concerned revenue records. The plaintiffs further submitted that the name of the plaintiff NO.2 was mutated in the place of the plaintiff No.1 and pattadar passbook and title deeds were granted in the name of the plaintiff No.2 by recognizing his cultivation over the said lands. The plaintiffs further submitted that they got 1/4th share in the bore and electric motor with service number 482 which was laid in the lands of Kesava Reddy. The plaintiffs further submitted that the land owners of the properties are in possession and enjoyment of the respective shares by cultivating the same with the aid of the said bore well and the plaintiff No.1 improved his lands and made it fertile and getting a good yield in his Ac.3.08 cents.

7.The defendant No.1 being sister of the plaintiff No.1 who is in influence and control of the defendant No.2 and 3, who are her close relatives objecting the enjoyment of the plaint schedule property by the plaintiffs who never objected the same previously. The plaintiff further submitted that there arose misunderstandings between the plaintiffs and defendants and the defendant No.1 on the instigation of the defendant No.2 and 3 making false claims that the plaint schedule property belongs to her even though she is not in possession and enjoyment in the land. Hence the present suit.

8.The defendants in pursuant of receipt of summons appeared before the court. The defendant No.1 filed her written statement and the same was adopted by the defendant No.2 and 3. The defendants in their written statement denied all the material allegations made by the plaintiffs. The defendant No.1 admitted that the

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relationship with the plaintiffs. The defendant No.1 submitted that Yeddula

Narasimhappa, Yeddula Venkata Reddy as no right to sell the property to Y.Bayappa and in turn the Y.Bayappa has no right to gift the property to the plaintiff No.1. The defendants further submitted that Y.Narasimhappa never manged joint family but the

Kristappa was managing the family. The defendants further submitted that

Y.Narasimhappa purchased the property along with C.Venkata Reddy for his own funds neither the brothers of Y.Narasimhappa nor any member of the joint family as right over the same.

9.The defendants further submitted that the defendant No.2 is the sisters son of the defendant No.1 and he is looking after her needs as she has no children.

The defendants further submitted that the defendant No.1 made a will in favour of the defendant No.2 by bequeathing all properties to the defendant No.2. The defendants further submitted that all the documents relied by the plaintiffs were created by them. The defendants further submitted that neither the Y.Bayappa nor the plaintiff No.1 were in possession and enjoyment of the plaint schedule property at any point of time.

10.Based on rival pleadings, the following issues are settled for trial:

1. Whether the suit for declaration and consequences relief of permanent injunction of the plaint schedule mentioned as prayed for or not?

2. Whether the plaintiffs have been separate possession and enjoyment of the suit schedule property?

3. Whether the suit can be decreed as prayed for?

4. To what relief?

11.In order to prove their case the plaintiffs got examined the plaintiff No.1 and 2 as P.W.1 and 2 and marked Exs.A1 to A10. The plaintiffs also got examined

Y.Narasimha Reddy and Yeddula Lakshmi Narayana as P.W.3 and 4 on their behalf. To rebut the evidence of the plaintiffs and to prove their case the defendant No.1 got examined as D.W.1 and C.Adilakshmamma as D.W.2 and marked Exs.B1 and B2.

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12.The learned counsel for the plaintiff during the course of arguments submitted that the plaintiff NO.1 and his brothers owned and possessed Ac.71.00 cents in S.No.194 which was allotted to the share of the plaintiff under a registered partition i.e., Ex.A3. The learned counsel for the plaintiffs further submitted that the defendant No.1 is the sister of the plaintiff No.1 who married Y.Narasimhappa. The learned counsel further submitted that the said Narasimhappa along with one

C.Venkata Reddy purchased Ac.00.53 cents in S.No.193 and Ac.2.84 cents in S.No.194 under Ex.A5 which is also Ex.B1. The learned counsel further submitted that the said

Narasimhappa purchased half of the share from the joint family funds who is managing the joint family as the brothers of the Y.Narasimhappa that is Bayappa,

Narappa, Kristappa and Adeppa in the plaint got equal share in the property covered in Ex.A5.

13.The learned counsel further submitted that the husband of the plaintiff

No.1 that is Narasimhappa and his brothers have no issues. The learned counsel further submitted that the Narasimhappa orally partitioned the property in S.No.193 and 194 with his brothers, same can be presumed from the gift deed executed by

Kristappa that is one of brother of the husband of the defendant No.1 under Ex.A2 in favour of Bayappa and execution of the gift deed by Bayappa in favour of the plaintiff

No.1 under Ex.A8. The learned counsel further submitted that there is no necessity to prove the said partition by virtue of execution of Exs.A2 and A8. The learned counsel further submitted that as the documents relied by the plaintiff are 30 years old and they have to be presumed to be true and genuine and there is no need of further proof of execution.

14.The learned counsel further submitted that the Bayappa, one of the brother of the defendant No.1 husband, executed gift deed in favour of the plaintiff

No.1 under a Ex.A8 along with the gifted property and purchase property from

C.Venkata Reddy in favour of the plaintiffs No.1. Thus, the plaintiff No.1 is in possession and enjoyment of the plaint schedule property and his name was mutated in concerned revenue records and after that the name of the plaintiff No.2 mutated with regard to the suit schedule property. The learned counsel for the plaintiff further

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submitted that the defendant No.1 never objected either the possession of Y.Bayappa over the land in an extent of Ac.00.53 cents in S.No.193 and and Ac.2.20 cents in

Sy.No.194 or the possession of the plaintiff No.1. The learned counsel for the plaintiff further submitted that the defendant No.1 denying title of the plaintiff over the plaint schedule property and she claims she in possession and enjoyment of half of the property purchased under Ex.B1 which is nothing but Ex.A5 even though the plaintiffs are in possession and enjoyment of the plaint schedule property with absolute rights and title which includes the property claimed by the defendant No.1. the learned counsel further sub it is duty of the Defendant No.1 to prove that the property which claimed by the plaintiff is different from the property disputed by the defendant basing upon the boundaries. The learned counsel further submitted that the defendant No.1 with the instigation and influence of the defendant Nos.2 and 3 denying the title of the plaintiffs as such they are entitled for decree of declaration of title in the plaint schedule property and the decree for permanent injunction. The learned counsel for the plaintiffs relied upon the Judgments in support of his arguments.

1.The Judgment of Hon’ble Supreme Court of India in Subhaga and others Vs

Shobha and others, 2006 (2) APLJ 57 (SC).

2.The Judgment of Hon’ble High Court of Judicature at Hyderabad for the State of

Telangana and the State of Andhra Pradesh in Girijala Subba Rao (Died) by LRs Vs

Kamireddy Satyamnarayana, 2015 (6) ALT 55.

3.The Judgment of Hon’ble High Court of Judicature Andhra Pradesh at

Hyderabad, in Annam Uttaradu (died) per LRs. Vs Annam Venkateswara Rao, 2014 (3)

ALT 776.

4.The Judgment of Hon’ble Supreme Court of India in Renikuntla Rajamma (died) by Lrs Vs K.Sarwanamma, 2014 (5) Supreme 548.

5.The Judgment of Hon’ble High Court of Judicature at Hyderabad for the State of

Telangana and the State of Andhra Pradesh in J.Venkateswara Rao and Vs Smt Vijaya

Lakshmi, 2017 (5) ALT 630.

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15.The learned counsel for the defendants submitted that during his course of arguments submitted that the defendants are not disputing the relationship referred in the plaint and also the joint purchase of the property by Y. Narasimhappa along with C.Venkata Reddy. The learned counsel further submitted Y.Nararsimhappa was not the Kartha of family and he never managed his joint family property and he purchase the property from his own earnings but not from family funds. The learned counsel further submitted that the defendant No.1 as the legal heir got half share in the property purchase under Ex.B1 which is also Ex.A8. The learned counsel further submitted that the defendants failed to prove the due execution of the gift deeds on which they rely to prove their title and possessed as per provisions of 68 of Indian

Evidence Act. The learned counsel further submitted that the learned counsel for the plaintiffs relied upon the judgment of the Hon’ble High Court of Judicature at

Hyderabad for the Telangana and Andhra Pradesh of in Girijala Subba Rao died for

Lrs Vs. Kamireddy Sathyanarayana and others, 2015 (6) ALT 55. A 30 year old registered statement deed is before presumed to be genuine under section 90 of

Indian Evidence Act and also its due execution and there is no necessity to prove the due execution and attestation.

16.The learned counsel further submitted that the defendant No.1 as D.W.1 admitted the boundaries of the suit schedule property but deposed that the dispute his relating to Ac.1.60 cents. The learned counsel further submitted that the evidence of D.W.1 with regard to the extent cannot be basis to declare the title of the plaintiffs as she is a rustic witness and further the plaintiff has to prove his own case on his own strength but not upon the weakness of the defendants.

17.The learned counsel further submitted that the submissions made by the leaned counsel for the plaintiffs that the boundaries prevail over the property irrespective of the survey number and extent, is no way applicable in the present case and the judgment relied by the plaintiffs in the Hon’ble Supreme Court of India in

Subhaga and others Vs. Shoba and others 2006 2APLJ 57 as the property was not identified in the said case. The learned counsel further submitted that the learned counsel for the plaintiff relied upon the judgment of the Hon’ble High Court of Andhra

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Pradesh in Annam Uttarudu died Lrs. Annam Venkateswara Rao reported in 2014 3 ALT 776 that there is no need to deliver the possession of the property to the donee or for the execution of gift deed as it is sufficient if the donee accepts the gift and acts upon it during the life time of the donor and also judgment of the Supreme

Court in Renikunta Rajamma 2014. The learned counsel further submitted that the defendant No.1 is in possession and enjoyment of the plaint schedule property as the legal heir of Y.Narasimhappa and there is no possession and enjoyment of the same and as per Ex.B2 i.e., the pattadar passbook clearly shows that the defendant No.1 is in possession and enjoyment of the property. The learned counsel further submitted the defendant No.2 is the sister son of the defendant No.1 is taking care of the defendant No.1 The learned counsel further submitted that as the defendant No.1 taking care of the defendant No.1 out of love and affection she made a will in favour of the defendant No.2 bequeathing of her properties to the defendant No.2 which is unbearable by the plaintiff filed the present suit to harass the defendants and prays to dismiss the suit.

18.ISSUE NO.1:-

The case of the plaintiffs is that the plaintiff No.1 in the partition with his brothers got Ac.00.71 cents in S.No.194 and he got the remaining extent in S.No.194 and Ac.0.53 cents in S.No.193 under a registered gift deed executed by Bayappa, who is the brother of the husband of the defendant No.1 who got the same property in oral family partition and the same extent under registered sale deed.

19.In order to prove the same the plaintiff No.1 got examined himself as

P.W.1 by filing his affidavit in lieu of chief examination which is nothing but a replica of plaintiff and marked Exs.A1 to A8. P.W.1 reiterated the contents of the plaint and further deposed that he is in possession and enjoyment of the Ac.0.53 cents in

S.No.193 and Ac.3.08 cents in S.No.194.

20.During his cross examination, PW.1 deposed that Y.Narasimhappa is the third son. P.W.1 further deposed that during the life time of Y.Narasimhappa neither

Kristappa, the elder brother of Narasimhappa, nor Bayappa, the younger brother of

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the Narasimhappa, purchased any property. PW.1 admitted that the name of the first defendant mutated in the concerned revenue records for the half share of the property purchased under Ex.A5 and he did not prefer any appeal challenging the act of the revenue authorities. P.W.1 further deposed that he do not know the mode of partition in between Narasimhappa and his brother. P.W.1 further deposed that he had not filed any revenue records stands in the name of Bayappa with regard to the property covered under Ex.A6 and A7. P.W.1 admitted that his name was not mutated in concerned revenue records. P.W.1 denied that they have no right over the plaint schedule property and denied that the defendant No.1 is in possession and enjoyment of the same.

21.In support of their case plaintiff No.2 examined as PW.2. PW.2 stated in the similar lines as that of PW.1 in his affidavit in lieu of chief examination and further deposed that the defendants are trying to interfere with their possession over the plaint schedule property denying their title.

22.During the course of his cross examination stated that there is no document to show the partition in between brothers of Yeddula Narasimhappa with regard to the properties including the properties covered under Ex.A5. PW.2 denied that the properties covered under Ex.A5 are self acquired properties of Yeddula

Narasimhappa and his brothers have no right or enjoyment over the said property.

PW.2 denied that the defendant No.1 is in possession and enjoyment of Ac.0.39 cents in Sy.No.193 and Ac.1.42 cents in Sy.No.194 and she was granted pattadar pass book and title deeds by the government and also her name also mutated in concerned revenue records.

23.Yeddula Narasimha Reddy relative of both plaintiffs and defendants was got examined as PW.3 in support of the plaintiffs. PW.3 in his evidence deposed that

Yeddula Narasimhappa and his four brothers partitioned their joint family properties.

PW.3 further deposed that Yeddula Bayppa, the brother of Yeddula Narasimhaqppa gifted 53 cents of land in Sy.No.193 and 1.85 cents in Sy.No.194 to the plaintiff No.1 with specific boundaries. PW.3 further deposed the defendants are not having any right, title and possessed over the plaint schedule property.

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24.During the course of cross examination, PW.3 denied that Bayappa gifted 0.53 cents in Sy.No.193 and Ac.1.85 cents in Sy.No.194 with specific boundaries to the plaintiff no.1 and the plaintiffs are in actual possession of the same. PW.3 further denied that the property purchased in the name of the Yeddula Naraimshappa and he is in joint possession along with his brother and they got divided the joint family properties.

25.Ediga Lakhminarayana, a third party to the suit proceedings got examined as PW.4 by the plaintiff. PW.4 in his affidavit in lieu of chief examination stated that the plaintiffs have been in exclusive physical possession of the property with specific boundaries. PW.4 further deposed that the defendants not have title and possession over the plaint schedule propriety but they are claiming right over it, as the plaintiffs developed the same and yielding good profit.

26.During his cross examination, PW.4 stated that the plaintiffs, PW.3 and defendant No.1 are cultivating the suit schedule properties. PW.4 further deposed that he cannot say exact extent and its boundaries possessed by the plaintiffs, defendant

No.1 and PW.3.

27. To rebut the evidence of plaintiffs and support of their evidence the defendant No.1 got examined as DW.1. The DW.1 in her affidavit in lieu of chief examination re-iterated the contents of her written and stated that her husband

Yeddula Narasimhappa purchased in an extent of 0.78 cents in Sy.No.193 and Ac.2.84 cents in Sy.No.194 along with some other properties jointly along with Chitavolu

Venkata Reddy under a registered sale deed dated 17.12.1956 from his own funds.

DW.1 further deposed that the brothers of her husband have no share in the said properties. And the documents relied by the plaintiffs are created and fabricated.

28.DW.1 in her cross examination deposed that she did not file any document to show that her husband purchased and he alone is in possession and enjoyment of the property covered under Ex.A5 which is marked as Ex.A1. DW.1 further deposed that she is having Ac.1.60 cents to the north of the disputed property.

DW.1 further deposed that she do not know about the execution of Ex.A6, 7 and Ex.A9

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and the said execution was not challenged by her husband during his lifetime as they were executed during his lifetime. DW.1 denied that as Ex.A5 which is also Ex.B1 stands in the name of her husband she is claiming right over the property covered under Ex.A5 i.e. Ex.B1 even though the property is purchased from joint family funds and denied other questions.

29.Chitavolu Adilakshmamma the relative of plaintiffs and defendants got examined as DW.2 on behalf of the defendants. DW.2 in affidavit stated that the husband of defendant i.e. Yeddula Narasimhappa purchased an extent of 0.78 cents in

Sy.No.193 and Ac.2.84 cents in Sy.No.194 along with some other properties jointly along with Chitavoli Venkata Reddy under a registered sale deed dated 17.12.1956 from his own funds. DW.2 further deposed that Yeddula Narasimhappa exclusively enjoyed the property till his death and after his death the defendant No.1 being only legal heir of the Yeddula Narasimhappa is in possession and enjoyment of the property.

30.During her cross examination, DW.2 stated that she do not know that

Yeddula Narasimhappa has four brothers and their names. DW.2 further deposed that the transactions in between by Narasimhappa and C.Venkata Reddy with respect of the property purchased and she do not know the survey number of the property and boundaries. DW.2 further deposed that she do not know whether the plaintiffs raising crops in the property.

31.On conjoint reading of the plaint, written statement, oral and documentary evidence on record and the submissions of the both learned counsel of the plaintiffs and defendant the relationship between the plaintiff No.1 and the defendant No.1 is not in dispute. Admittedly, the defendant No.1 is the sister of the plaintiff No.1 and Y.Narasimhappa is the husband of the defendant No.1. It is also an admitted fact Kristappa and Bayappa are the brothers of Y.Narasimhappa. It is also an admitted fact that Y.Narasimhappa along with one C.Venkata Reddy purchased the property under Ex.A5 (which is Ex.B1). It is also admitted fact that Y.Narasimhappa and C.Venkata Reddy were having half share in the property purchased under Ex,A5.

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32.As per Ex.A1 the transactions of which the plaintiffs relied is not disputed the case of the plaintiff is that Bayappa Reddy got the some extent in s.No.193 and 194 and Ac.0.92 ½ cents in S.No.194 from one of the joint owner C.Venkata Reddy under a registered sale deed. The Kristappa the other brothers of one of the joint purchaser i.e. husband of the defendant No.1 gifted Ac.0.08 cents in S.No.193 and

Ac.0.28 cents in S.No.194 Bayappa Reddy. Thus, Bayappa Reddy got Ac.00.55 cents in

S.No.193 and Ac.2.20 cents in S.No.194. The Bayappa Reddy in his turn gifted the plaint schedule property the said property in gift to the plaintiff No.1.

33.As per evidence on record it is admitted fact that except relying upon the gift deeds the plaintiffs did not take any steps to prove the due execution of the gift deed in favour of the plaintiffs. The plaintiffs relied upon the judgment of the Hon’ble

High Court of Judicature at Hyderabad for the Telangana and Andhra Pradesh in

Girijala Subba Rao died for Lrs Vs. Kamireddy Sathyanarayana and others to show that the gift deeds being 30 years old, have presumed to be genuine and there is no necessity to prove the due execution as per the provisions of Indian Evidence

Act.

34.The Hon’ble High Court of Andhra Pradesh in Giridhar T. Sesha

Reddy Vs Managing Director Reddy Committee B.Saheba, 2002 ALD SUP (2)

17 pleased to hold that “the presumption of 30 years old documents are presumed to be genuine with respect to the execution but not about the contents of the documents”. Further the Hon’ble Supreme Court of India in Harihar Prasad Singh Vs

Must of Munshnath Prasad, AIR 1956 SC 905 in Tilakchand Kureel Vs Bhimrail, 1969 (8) SCC 7 pleased to hold that “the presumption u/s 90 of Indian Evidence Act extends only to original documents but not to registration extracts”.

Thus , the presumption under section 90 of the Indian evidence Act has no application to the documents relied by the plaintiffs i.e., registration extracts of gift deeds to show the flow of title of the donor of the plaintiff no:1. The plaintiffs simply filed the gift deeds to show the donor of the plaintiff no:1 is in possession and enjoyment of the entire gifted property.

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35.The Hon’ble Supreme Court of India in Gangamma Vs Shivalingaiah 2005 (9) SCC 359 pleased to hold that “the mere execution of document, in other words, does not lead to the conclusion the recitals made therein are correct, the subject to the statutory provisions contained in section 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.

36.The Hon’ble High Court of Andhra Pradesh in Sajana Granites Madras and another Vs Manduva Srinivasa Rao and others::2002 (2) ALD 436::2002 (1) ALT 466 pleased to hold that “there is no presumption that recitals of registered document is true and genuine”.

Thus as per the laid law down by Hon’ble Supreme Court of India Gangamma

Vs Shivalingaiah 2005 (9) SCC 359 ,The Hon’ble High Court of Andhra Pradesh in

Sajana Granites Madras and another Vs Manduva Srinivasa Rao and others 2002 (2)

ALD 436::2002 (1) ALT 466 and High Court of Andhra Pradesh inGiridhar T. Sesha

Reddy Vs Managing Director Reddy Committee B.Saheba, 2002 ALD SUP (2) 17, as per provisions of evidence Act, 1872 it is manifest that there is no presumption about the correctness and truth of the contents of the registered documents even though they are 30 years old and further no presumption under section 90 of Indian Evidence

Act for the registration extracts.

34.It is not the defence of the defendants is that there is no delivery of possession under gift deeds executed in favour of the plaintiff No.1. It is their case that neither the donor Bayappa nor P.W.1 is in possession and enjoyment of the half share of the property covered under Ex.A5 which was purchased by Narasimhappa and Venkata Reddy. Thus, the judgment relied by the learned counsel of the plaintiffs i.e., the Judgment of Hon’ble Supreme Court of India in Renikuntla Rajamma (died) by

Lrs Vs K.Sarwanamma, 2014 (5) Supreme 548 and the Judgment of Hon’ble High

Court of Judicature Andhra Pradesh at Hyderabad, in Annam Uttaradu (died) per LRs.

Vs Annam Venkateswara Rao, 2014 (3) ALT 776 that there is no necessity of physical delivery of the gifted property is no way helpful to the plaintiffs with regard to the possession over the property.

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35.The plaintiff No.1 as P.W.1 himself admitted that the name of the defendant No.1 is mutated in the concerned revenue records with respect to half of the share of the property of Narasimhappa covered under Ex.A5. Further, PW.3 who supported the case of the plaintiffs in his affidavit in lieu of chief examination, in his cross examination who categorically denied the execution of gift deed by Bayappa in favour of the plaintiff No.1 and the plaintiffs are in possession. Further P.W.4 in his cross examination deposed that the plaintiffs, P.W.3 and the defendant No.1 cultivating the suit schedule properties and they are cultivating the lands in S.No.193 of 194.

36.Thus, P.W.3 and 4 who were examined in support of the plaintiffs, have not supported the case of the plaintiffs that plaintiffs are in possession and enjoyment of the plaint schedule properties with absolute rights but supported the case of defendants that the plaintiffs, defendant No.1 are in possession.

37.Further, a reading of documents relied by the plaintiffs clearly shows that the mode of acquisition of the title of the properties covered in the documents and its acquisition source is not mentioned. Thus, the submissions of the learned counsel for the plaintiff about the partition in between the brothers of Narasimhappa and himself i.e. same can be presumed from the execution of Ex.A6, 7 and 8 does not lend credence to the case of the plaintiffs about the partition and acquisition of the title by

Bayappa as title, right and interest over a property cannot be acquired on mere presumptions and assumptions. Furthermore, a mere execution of Ex.A6, 7 and 8 does not itself create right over the property without proof of source of acquisition of right over the property.

38.The plaintiffs simply relying upon the Exs.A6, A7, A8 and A9 to prove their title which were not proved as per the provisions of the Indian Evidence Act.

Simply relying upon the Judgments of Hon’ble Supreme Court and Hon’ble High

Court of Andhra Pradesh and without adducing cogent and relevant evidence cannot claim declaration over the plaint schedule property.

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39.in view of foregoing discussion, the plaintiffs did not establish their title over plaint schedule property as such they are not entitled for the relief declaration over the plaint schedule property as sought for in the plaint. Accordingly this issue is answered.

39.Issue No.2:-

As per the evidence of PW.3 and 4 the defendant No.1 is in possession and enjoyment of the property along with the plaintiff No.1. Further the defendant

No.1 as DW.1 admitted that the name of the defendant No.1 is mutated in the concerned revenue records with respect to the half share of the property covered under Ex.A5 which is also Ex.B1. Thus, it is well established principle of law mutation shows that the person is in possession and enjoyment of the said property.

In view of above facts, it is established that the plaintiff are not in separate possession and enjoyment of the suit schedule property. Accordingly this issue is answered.

40.Issue No.3:-

In view of discussions on Issue no.1 and 2, as the plaintiffs failed to prove their right and possession over the plaint schedule properties by adducing cogent and relevant evidence but possession over the plaint schedule property of defendant No.1 is admitted by the plaintiffs themselves. Hence, the plaintiffs are not entitled for the relief of declaration and permanent injunction as sought for in the plaint.

41.Issue No.4:-

As the plaintiffs failed to prove their case, they are not entitled any relief sought for and suit is liable to be dismissed.

In the result, the suit is dismissed with costs. The plaintiff has to bear their own costs.

OS.No.08/201816JCJ Court, Puttaparthy

Dictated to the Stenographer, transcribed by her, corrected and pronounced by

me in open court, on this the 27th day of December, 2019.

Sd/- P.Gayathri,

Principal Junior Civil Judge,

Dharmavaram FAC Junior Civil Judge, Puttaparthy.

Appendix of Evidence

List of Witnesses Examined

For Plaintiff: For Defendants:

P.W.1: C.Narayana ReddyD.W.1: Y.Narayanamma P.W.2: C.Baya ReddyD.W.2: C.Adilakshmamma P.W.3: Y.Narasimha Reddy P.W.4: Y.Lakshminarayana

Exhibits marked on behalf of the plaintiff

Ex.A.1: Encumbrance Certificate Ex.A.2:Certified copy of gift deed, dated 14.12.1964 executed by Eddula Kristappa in favuor of Eddula Bayappa Ex.A.3: Registration Extract of partition deed dated 14.06.1982 among Bayapa Reddy, Moreddi and Narayana Reddy Ex.A.4: 10-1 account issued by Mandal Revenue Officer, Bukkapatnam. Ex.A.5: Registration Extract of Sale Deed, dated 17.12.1956 executed by Lakshmanna in favour of Venkatareddy and Narasimhappa. Ex.A.6: Registration Extract of gift deed, dated 14.12.1964 executed by Kistappa in favour fo Bayappa. Ex.A.7: Registration Extract of sale deed dated 12.12.1977 executed by Venkatreddi in favour of Byappa. Ex.A8: Pattadar Pass Book issued in the name of the plaintiff No.2. Ex.A9: original Registered Gift deed, dated 21.08.1979 executed by Bayappa in favour of plaintiff. Ex.A10: Registration Extract of Gift Deed, dated 12.01.1987 executed by plaintiff no:1 and the mother of plaintiff no:2 in favour of plaintiff no:2 with regard to plaint schedule property.

Exhibits marked on behalf of the defendants:

Ex.B.1: Certified copy of sale deed dated 17.12.1956 Ex.B.2: Pattadar Pass Book. I/D-P.G. FAC Junior Civil Judge, Puttaparthy.

// True Copy //

Junior Civil Judge,

Puttaparthy.

1

OS.No.52/2013AJCJ, Dharmavaram

IN THE COURT OF THE ADDL. JUNIOR CIVIL JUDGE, DHARMAVARAM.

Present : Smt. P.Gayathri, Principal Junior Civil Judge, Dharmavaram. FAC of Addl. Junior Civil Judge, Dharmavaram. Tuesday, the 31st day of December, 2019.

ORIGINAL SUIT No.52/2013

Between:

1. Sake Narayanamma W/o Late Bommanna, aged about 70 years, Hindu, Agriculturist, died by her L.Rs the 3rd plaintiff.

2. Sake Rajappa W/o Late Bommanna, aged about 52 years, Hindu, Agriculturist, died by his L.Rs 4th and 5th plaintiffs.

3. S.Gangappa S/o Late Bommanna, aged about 65 years, Hindu, Cultivation,

4. S.Bommaiah S/o Late S.Rajappa, aged about 26 years, Hindu, Cultivation,

Plaintiffs No.3 and 4 are residing at Subbaraopeta Village of Dharmavaram Mandal.

5. Eramma W/o Veera Narappa, aged about 30 years, Hindu, Cultivation, Residing at Iragampalli Village, Kothacheruvu Mandal, Ananthapuramu District. (Amended as per orders in IA.No.154/2018 dated 27-08-2018.)

...Plaintiffs.

And

1. Manthrala Madanna S/o Veerappa, aged about 72 years, Hindu, Agriculturist,

2. Manthrala Seshalappa S/o Madanna, aged about 40 years, Hindu, Agriculturist,

Defendants No.1 and 2 are residing at Gadigakunta Village of Ramagiri Mandal.

...Defendants.

This suit came up for final hearing before me on 13.11.2019 in the presence of Sri C.Gunteppa, learned Advocate for the plaintiffs No.1 to 5 and Sri K.Surya Prakash Rao, learned Advocate for the defendants No.1 and 2 and upon hearing both sides and on perusing the material available on record this Court delivered the following:

J U D G M E N T

This suit is filed seeking the relief of permanent injunction in favour of the plaintiff and against the defendants, restraining the defendants, their men, agents and representatives from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property situated at Subbarao Peta Village fields of

Dharmavaram Mandal in Sy.No.91-1 in an extent of Ac.00.99 cents and another land extent of Ac.00.99 cents in Sy.No.91-1 and together with costs.

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OS.No.52/2013AJCJ, Dharmavaram

2.The averments of the plaint in brief are that the plaintiff submitted that the plaint schedule property originally belongs to the Government and same was assigned to the plaintiffs 30 years back. The plaintiffs further submitted that from the date of assignment the plaintiffs are in possession and enjoyment of the plaint schedule property and the government issued pattadar passbooks and title deeds in favour of the plaintiff No.2 to an extent of Ac.00.99 cents in Sy.No.91-1 and the plaintiff No.1 to an extent of Ac.00.99 cents in Sy.No.91-1. The plaintiffs further submitted that their names also mutated in all concerned revenue records, The plaintiffs further submitted that they availed crop insurance from the government.

3.The plaintiffs further submitted that the defendants are not having any right, title or possession over the plaint schedule property trying to interfere with peaceful possession of the plaintiffs over the plaint schedule property with their political influence by taking advantage of the plaintiffs helplessness and innocence.

The plaintiffs further submitted that the defendants are proclaiming that they will interfere with the peaceful possession and enjoyment of the plaint schedule property that they will dispossess the plaintiffs from the plaint schedule property. Hence the plaintiffs who are unable to restrain the defendants filed the present suit.

4.During the pendency of the suit the first defendant reported died and the suit against the first defendant is abated as the plaintiff failed to brought the Lrs of the defendant No.1 on record on 01-11-2013.

5.In pursuance to the receipt of summons the defendant No.2 made his appearance to through his counsel. The defendant No.2 in his written statement denied all the material allegations made by the plaintiffs. The defendant No.2 further submitted that the plaintiffs are not having knowledge about the source of acquisition of title over the plaint schedule property. The defendant further submitted that originally the disputed property belonged to one Yerappa. The defendant further submitted that one Pedda Bomanna and Chinna Bomanna are the sons of the said

Yerappa and they both constituted Hindu Joint Family. The defendant No.2 further submitted that Pedda Bomanna died leaving behind his only son Bomanna and Chinna

Bomanna died leaving behind his three wives including the plaintiff No.1 and his 3

OS.No.52/2013AJCJ, Dharmavaram

children through his three wives. The defendant further submitted that the plaintiff

No.2 is the grand son of the said Chinna Bomanna.

6.The learned counsel for the defendant submitted that the suit is not maintainable as the plaintiffs has filed the present suit against the dead person who died 1 ½ month to prior the institution of the suit and the contention that one week prior to institution of the suit the defendant No.1 and 2 tried to interfere with the peaceful possession and enjoyment of the plaint schedule property will not arise at all. The defendant further submitted that the plaintiffs approached the court by suppressing that the defendant No.1 died prior to filing of the suit, but stated that the defendant is trying to interfere with their possession which is impossible.

7.The defendant No.2 further submitted that the defendant No.1 is the one of the son of Verrappa died leaving behind his 8 sons including the defendant No.2 in the month of February, 2013. The defendant further submitted that his father i.e., the defendant No.1 constituted Hindu Joint Family along his brother Rajappa and

Verrrappa. The defendant further submitted that Rajappa was the kartha of joint family and purchased half share of Pedda Bomanna and his son Bomanna in the plaint schedule property under a registered sale deed dated 16-02-1956.

8.The defendant further submitted that originally the survey number of the property in dispute was 75 with an extent of Ac.7.20 cents, which was later converted into the sy.no.91 to an extent of Ac.5.00 cents. The defendant further submitted that sy.no.91 is sub divided into 91-1 to an extent of Ac.1.98 cents, later the sy.no.91-1 again sub divided into the sy.no.91-1A to 1E. The defendant further submitted that sy.no.91-1C in an extent of Ac.33.00 cents was allotted to Rajappa, sy.no.91-1-D to an extent of Ac.0.33 cents was allotted to he defendant No.1 and sy.no.91-1E to an extent of Ac.00.34 cents was allotted to Yerappa and remaining extent to Bomanna.

The defendant further submitted that the government issued pattadar passbooks and title deeds and mutated their names in concerned revenue records.

9.The defendant further submitted that the plaintiffs filed the present suit with malafide intention without title or possession to cause wrongful loss to the defendant. The defendant further submitted that the plaintiffs filed the present suit 4

OS.No.52/2013AJCJ, Dharmavaram

basing upon forged and fabricated documents and the suit is bad for non-joinder of parties and prays to dismiss the suit.

10.Based on rival pleadings, the following issues have been settled for trial:

1. Whether the plaintiffs are in lawful possession of the suit schedule property?

2. Whether the plaintiffs are entitled to permanent injunction as prayed for?

3. To what relief?

11.During the pendency of the suit the first plaintiff had died and she was represented by her Lrs i.e., 3rd plaintiff, the plaintiff No.2 is died and he was represented by his Lrs the plaintiffs No.4 and 5 as per orders in IA.NO.154/2018 dated 27-08-2018.

12.In order to prove their case the plaintiffs got examined the plaintiff No.3 as P.W.1 and marked Exs.A1 and A2. In support of the plaintiff No.4 got examined as

P.W.2. Even though one K.Narayana S/o Maddanna was examined as P.W.3 on behalf of the plaintiff his evidence was eschewed on 11-03-2019. In order to rebut the evidence of the plaintiffs the 2nd defendant got examined himself as D.W.1 and marked Exs.B1 to B4, one G.Obi Reddy was examined as D.W.2 on behalf of the defendant.

13.The learned counsel for the defendant during the course of arguments submitted that the plaint schedule property was assigned to the plaintiffs by the government and since the date assignment the plaintiffs are in possession and enjoyment of the plaint schedule property. The learned counsel further submitted that their possession was established through Exs.A1 and A2. The learned counsel further submitted that the defendant No.2 as D.W.1 admitted in his evidence that the plaintiffs No.1 and 2 are in possession and enjoyment of the plaint schedule property and they also constructed the pucca house in the plaint schedule and residing there over the past 30 years and as such the defendant No.2 himself admitted the plaintiffs are in possession of the plaint schedule property the plaintiff are entitled for the decree of permanent injunction and prays to decree the suit.

14.Per contra the learned counsel for the defendants during the course of arguments submitted that the plaintiffs has to proved their case on his own strength 5

OS.No.52/2013AJCJ, Dharmavaram

not on the weakness of the defendant. The learned counsel further submitted that even though the defendant No.2 admitted that the plaintiffs are in possession itself cannot be construed that the plaintiffs are in possession of the plaint schedule property. The defendant further submitted that the plaintiffs are not having knowledge about their acquisition of the property and the property originally belongs to one Yeranna and one acre out of the property was purchased by the brother of the defendant No.1 i.e., Rajappa who acted as kartha of the joint family consisting

Rajappa, 1st defendant and Veranna. The learned counsel further submitted that pattadar passbooks were issued in their favour. As per Exs.B2 to B11 the defendant

No.2 is able to establish that Rajappa, Yerranna and the defendant No.1 are in possession and enjoyment of the plaint schedule property. The learned counsel further submitted even though as per Ex.B2 the survey number is 75, later it was converted into the sy.no.91 of the property purchased by the defendants fell in sy.no.91 and later was sub divided into the 91-1A to 1E, the pattadar passbooks and title deeds i.e., B3 to B8 clearly shows that Rajappa, Yeranna and defendant No.1 are in possession of the land in Sy.No.91-1C, 1D and 1E. The learned counsel further submitted that as the defendant able to rebut the evidence of the plaintiff and proved that they are in possession of the plaint schedule property, the plaintiff is not entitle for relief of injunctions restraining the defendants who are already in possession and prays to dismiss the suit.

15.ISSUE NO.1

The case of the plaintiffs is that the defendants are trying to interfere with their possession and enjoyment of the property which was assigned by the government in their favour. Per contra the defence of the defendant No.1 is that the plaintiffs filed the present suit against the defendant No.1 who died 1 ½ month prior to the filing of the suit and by suppressing the same. The other defence is that the defendant No.1 along with his three brothers are in possession and enjoyment of the property in sy.no.91-1C, 1D and 1E and the plaintiffs are not having any title or possession.

16.In order to prove their case the plaintiff No.3 got examined himself as

P.W.1 by filing his affidavit in lieu of chief examination which is nothing but a replica of 6

OS.No.52/2013AJCJ, Dharmavaram

plaint and marked Exs.A1 and A2. P.W.1 in his evidence deposed that the plaint schedule property was originally assigned to the plaintiff No.1 and 2 and they were in possession and enjoyment of the plaint schedule property and the defendants No.1 and 2 tried to interfere with the same.

17.During his course of cross examination P.W.1 deposed that he do not know that the plaintiffs No.1 and 2 filed the suit against whom and also the survey number and its extent. P.W.1 deposed that government has not issued any D-form patta in favour of first and second plaintiffs the pattadar passbooks and title deeds in favour of the plaintiffs No.1 and 2. P.W.1 further deposed that he had not filed any documentary proof to show that the plaintiffs No.1 and 2 are in possession and enjoyment of the plaint schedule property. P.W.1 denied that Rajappa one of the brother of the defendant No.1 purchased the property from Pedda Bomanna and his son Bomanna under a registered sale deed as kartha of family of joint family includes the defendant No.1 and Yeranna. P.W.1 denied that the defendant No.1 and 2 are in possession and enjoyment of the suit schedule property.

18.The plaintiff No.4 i.e., the son of the plaintiff No.2 got examined as P.W.2 by filing his affidavit in lieu of chief examination which is nothing but a replica of plaint. P.W.2 in his evidence deposed that the plaint schedule property was originally assigned to the plaintiff No.1 and 2 and they were in possession and enjoyment of the plaint schedule property and the defendants No.1 and 2 tried to interfere with the same. P.W.2 in his cross examination deposed that his father informed him that the government issued patta in favour of his grandmother and he do not know the details of issuance of the patta. P.W.2 further deposed that he has not filed any documentary proof to show that the plaintiff No.1 and 2 have been in possession and enjoyment of the suit schedule property in pursuance of the assignment and also he is in possession and enjoyment of the same. P.W.2 denied that originally the suit schedule survey number is 75 and later it is converted into sy.no.91. P.W.2 further deposed that the sy.no.75 is different and sy.no.91-1 is different and denied other questions.

19.To rebut the evidence of plaintiffs and the defendant No.2 got examined himself as D.W.2 by filing his affidavit in lieu of chief examination by reiterating the contents of his written statement. D.W.1 in his written statement submitted that 7

OS.No.52/2013AJCJ, Dharmavaram

originally the plaint schedule properties belonged to one Yerappa i.e., the father in law of the first plaintiff. D.W.1 further deposed that his father and his brothers Rajappa and Verranna constituted Hindu Joint family and Rajappa was the kartha of the joint family and purchased the half share of Pedda Bomanna and his son under a registered sale deed dated 16-02-1956 and he was inducted into possession and enjoyment of the same. D.W.1 further deposed that later the sy.no.75 was converted into 91-1 and

Rajappa, the defendant No.1 and Yeranna are in possession and enjoyment of the sy.nos.91-C to E and government issued pattadar passbooks and title deeds. The defendants further submitted that plaintiffs are never in possession and enjoyment of the plaint schedule property.

20.During his cross examination D.W.1 admitted that the plaintiffs No.1 and 2 have been in possession and enjoyment of the suit schedule property for the past 30 years and the plaintiffs No.1 to 5 constructed pucca house in the suit schedule property. D.W.1 further stated that the 2nd defendant was the priest of Gangamma

Temple which is constructed in the suit schedule survey number and after his demise the plaintiff No.4 became the priest of the said temple. D.W.1 further deposed that they never resided at Kothagadikunta of Ramagiri Mandal. D.W.1 further deposed that the survey number the land covered under Ex.B2 is situated in survey number and the present suit schedule property is filed for sy.no.91-1. D.W.1 further deposed that he did not filed any documentary proof to show the at the sy.no.75 is converted into 91-1. D.W.1 further deposed that since his childhood family has been in possession and enjoyment of the suit schedule property who denied the property belongs to the plaintiffs and they are in possession of the plaint schedule property with absolute rights.

21.In support of the case of the defendants G.Obi Reddy a third party to the suit proceedings was got examined as D.W.2 by filing his affidavit in lieu of chief examination. D.W.2 deposed in similar lines of D.W.1 and further stated that his father is attestor of Ex.B2. During his cross examination deposed that the defendant No.1 and 2 are not his villagers but the plaintiffs and the defendants are resident of

Subbaraopeta. D.W.2 further deposed that he do not know about the suit particulars and also the suit schedule survey number but he knows the extent i.e., Ac.5.30 cents.

D.W.2 further deposed that the plaintiffs constructed residential house in the suit 8

OS.No.52/2013AJCJ, Dharmavaram

schedule property and cultivating the same by raising crops and one of the member of the plaintiffs who is the priest of Gangamma Temple.

22.On conjoint reading of plaint, written statement, evidence oral and document of both the counsels for the plaintiffs and defendants it is admitted fact that the suit schedule survey number is 91-1. The present suit is filed for permanent injunction. The case of the plaintiffs is that they are in possession and enjoyment of the plaint schedule property and in order to established their possession they relied upon the pattadar passbooks issued in favour of the plaintiff No.1 and 2. Per contra the defendants claimed that they are in possession and enjoyment of the property to an extent of Ac.1-00 cents was purchased from the Pedda Bomanna and his son

Bomanna who are relatives of the husband of the first plaintiff who are having half share in the plaint schedule property under Ex.B2.

23.In order to prove their possession over the plaint schedule property along Rajappa and Yerranna they relied upon the pattadar passbooks and title deeds and 6 cist receipts i.e., Exs.B2 to B11. Admittedly both the plaintiffs and defendants relied upon the pattadar passbooks and title deeds to prove their possession over the plaint schedule property. It is well established principle of law that mere grant of pattadar passbooks and title deeds without mutating their names in concerned revenue records will not prove the possession was title of the persons who relied upon the pattadar passbooks and title deeds. Thus neither Ex.A1 and A2 nor Exs.B2 to B11 will help the plaintiffs or defendants to prove their possession.

24.However, the defendant No.2 as D.W.1 himself admitted that the plaintiffs are in possession and enjoyment of the plaint schedule property for the past 30 years and they constructed house in the plaint schedule property and cultivating the land. The third party i.e., D.W.2 also in is evidence stated that the plaintiffs are in possession and enjoyment of the property by cultivating the lands and constructed house in the plaint schedule property. Thus, the defendants admitted that the plaintiffs are in possession and enjoyment of the plaint schedule property.

25.This being a suit for injunction simpliciter, in view of admissions of defendant No.2 as D.W.1 and the P.W.2 in her evidence, it is evidence that the plaintiffs are in possession and enjoyment of the plaint schedule land and since they 9

OS.No.52/2013AJCJ, Dharmavaram

apprehends that the defendants will interfere with the plaint schedule property thereby causing irreparable loss to them.

26.With the above observations, the plaintiff is entitled to the perpetual injunction against the defendants, their men and agents. Hence, this point is answered in favour of plaintiffs and against the defendants.

16.Issue No.2:-

In view of discussion in issue No.1, as the plaintiffs, established that they are in peaceful possession and enjoyment of the plaint schedule property, this court is inclined to protect established possession of the plaintiffs.

In the result, the suit is decreed with costs in favour of plaintiffs and against defendants by granting permanent injunction in favour of the plaintiffs and against the defendants, restraining the defendants, their men, agents and representatives from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property situated at Subbarao Peta Village fields of

Dharmavaram Mandal in Sy.No.91-1 in an extent of Ac.00.99 cents and another land extent of Ac.00.99 cents and the defendants do bear their own costs.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court, on this the 31st day of December, 2019.

Sd/- Smt P.Gayathri

Principal Junior Civil Judge,

FAC Addl. Junior Civil Judge, Dharmavaram.

Appendix of Evidence

List of Witnesses Examined

For Plaintiff: For Defendants:

P.W.1: S.Gangappa D.W.1: M.Seshalappa @ Sesha P.W.2: S.BommaiahD.W.2: G.Obi Reddy P.W.3: K.Narayana(eschewed)

Exhibits marked on behalf of the plaintiff

Ex.A.1: The original pattadar passbook issued by the Mandal Revenue Officer, Dharmavaram in favour of the 1st plaintiff.

Ex.A.2: The original pattadar passbook issued by the Mandal Revenue Officer, Dharmavaram in favour of the 2nd plaintiff.

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OS.No.52/2013AJCJ, Dharmavaram

Exhibits marked on behalf of the defendants:

Ex.B.1: The original death certificate of defendant No.1 Ex.B.2: The original sale deed dated 16-02-1956. Ex.B.3: The original pattadar passbook stands in the name of Gajukunta Pujari Rajappa. Ex.B.4: The original title deed stands in the name of Gadikunta Pujari Rajappa. Ex.B.5: The original pattadar passbook stands in the name of Gadikunta Eeranna. Ex.B.6: The original title deed stands in the name of Gadikunta Eranna. Ex.B.7: The original pattadar passbook stands in the name of Gadikunta Pujari Madanna. Ex.B.8: The original title deed stands in the name of Gadikunta Pujari Madanna. Ex.B.9: The original cist receipt Sl.No.995868. Ex.B.9: The original cist receipt Sl.No.995869. Ex.B.9: The original cist receipt Sl.No.995870. Ild/- P.G. P.J.C.J.

FAC A.J.C.J.

1

In the Court of the Addl. Judicial Magistrate of I Class : Dharmavaram

Present: Smt P.Gayathri, Addl. Judicial Magistrate of I Class, Dharmavaram

Monday, the 11th day of December, 2017

C.C.112/2016

Between: State rep. by the Sub-Inspector of Police, C.K.Palli P.S. … Complainant.

And

1. Syed Shabuddin, aged 35 years S/o Subhan Sab, R/o Khaderapura Village, Kolar Dist. Karnataka state.

2. Shaik Nissor, aged 32 years S/o Abdul Khader, R/o Thamba Halli village, Kolar Dist. Karnataka state. …Accused.

This case came up for final hearing before me on 06-12-2017 in the presence of Assistant Public Prosecutor for the State and of Sri B.Noor Mohammad, Advocate for the accused and this matter having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

The Sub-Inspector of Police, C.K.Palli police station filed charge sheet against the accused Nos.1 and 2 in Crime No.18/2016 for the offences punishable

U/secs.428, 429 of I.P.C. and Sec.11(a)(b)(c)(d)(e)(f) of Prevention of Cruelty of

Animals Act 1960 r/w Secs.47(a), 48, 49, 50, 51(a), 52, 53, 54(1)(2)(3) and 56(1) of Cattle Transport Rules 1978.

2.The case of the prosecution in brief:-

The accused Nos.1 and 2 are residents of Kolar district of Karnataka state and they are doing cattle business. Accused No.1 is the owner of crime vehicle bearing No. AP-24-X-8298 and accused No.2 is its driver. Accused Nos.1 and 2 used to purchase cattle at Market Yard, Ananthapuramu and transporting the same to slaughter house at Bengaluru. On 14-02-2016 at 2 pm Accused 1 and 2 2 purchased 17 cows and 5 calf at Market Yard, Ananthapuramu and they taken the said animals to Bengaluru. On the way at 4.30 pm when the crime vehicle reached near Ashoka Dhaba Hotel on NH-44 near C.K.Palli, LW-7 S.Jamal Basha, Sub-

Inspector of Police stopped the vehicle and found the accused were transporting the said animals without any license or permission from concerned authorities, further the accused failed to take necessary precautions in transporting the animals and also did not provide food and water to the said animals. Then LW-7 seized the vehicle containing 7 cows and 5 calf and arrested accused 1 and 2 under cover of mahazar and brought to the police station.

3.Basing on the mahazar, LW-7 registered a case in Cr.No.18/2016

U/secs.428, 429 of I.P.C. And Sec.11(a)(b)(c)(d)(e)(f) of Prevention of Cruelty of

Animals Act 1960 r/w Secs.47(a), 48, 49, 50, 51(a), 52, 53, 54(1)(2)(3) and 56(1) of Cattle Transport Rules 1978 and investigated into.

4.During the course of investigation LW-7 handed over seized cattle to the authorities of Birds and Animals Rehabilitation Center, Guttur for safe custody and grazing purpose. LW-7 served notices to Accused 1 and 2 under section 41-A

Cr.P.C. and released them on bail and after completion of investigation filed charge sheet against the accused Nos.1 and 2 for the offences punishable U/secs.428, 429 of I.P.C. And Sec.11(a)(b)(c)(d)(e)(f) of Prevention of Cruelty of Animals Act 1960 r/w Secs.47(a), 48, 49, 50, 51(a), 52, 53, 54(1)(2)(3) and 56(1) of Cattle

Transport Rules 1978. Hence the charge.

5. Charge sheet filed on 04-04-2016. The case was taken on file on 01-04-2016 for the offences U/secs.428, 429 of I.P.C. And Sec.11(a)(b)(c)(d)(e)(f) of Prevention of Cruelty of Animals Act 1960 r/w Secs.47(a), 48, 49, 50, 51(a), 52, 53, 54(1)(2)(3) and 56(1) of Cattle Transport Rules 1978 against accused Nos.1 and 2 and the case is numbered as C.C.112/2016 on the file of Judicial First Class

Magistrate Court, Dharmavaram.

6.On appearance of accused before Judicial First Class Magistrate Court,

Dharmavaram case copies were furnished to them as required under Section 207

Cr.P.C.

3

7.Accused Nos.1 and 2 examined under Section 239 Cr.P.C. Charges

U/secs.428, 429 of I.P.C. and Sec.11(a)(b)(c)(d)(e)(f) of Prevention of Cruelty of

Animals Act 1960 r/w Secs.47(a), 48, 49, 50, 51(a), 52, 53, 54(1)(2)(3) and 56(1) of Cattle Transport Rules 1978 were framed against accused is read over and explained to them in Telugu. They pleaded not guilty and claimed to be tried.

8.During trial, on behalf of prosecution, PWs.1 to 6 were examined and

Exs.P1 to P5 were marked.

9.The accused persons were examined U/Sec. 313 Cr.P.C.. They stood by the denial and refuted the correctness of incriminating circumstances with in which they were confronted and did not produced any evidence on their behalf.

10. Heard on both learned counsel. Perused the record.

11.Now the point for determination is: Whether prosecution proved

the guilt of the accused 1 and 2 for the offence punishable U/secs.428, 429

of I.P.C. And Sec.11(a)(b)(c)(d)(e)(f) of Prevention of Cruelty of Animals

Act 1960 r/w Secs.47(a), 48, 49, 50, 51(a), 52, 53, 54(1)(2)(3) and 56(1)

of Cattle Transport Rules 1978 beyond all reasonable doubts?

12.POINT:

The case of prosecution is that the accused Nos.1 and 2 are residents of Kolar district of Karnataka state and they are doing cattle business. Accused

No.1 is the owner of crime vehicle bearing No. AP-24-X-8298 and accused No.2 is its driver. Accused Nos.1 and 2 used to purchase cattle at Market Yard,

Ananthapuramu and transporting the same to slaughter house at Bengaluru. On 14-02-2016 at 2 pm Accused 1 and 2 purchased 17 cows and 5 calf at Market Yard,

Ananthapuramu and they taken the said animals to Bengaluru. On the way at 4.30 pm when the crime vehicle reached near Ashoka Dhaba Hotel on NH-44 near

C.K.Palli, LW-7 S.Jamal Basha, Sub-Inspector of Police stopped the vehicle and found the accused were transporting the said animals without any license or permission from concerned authorities, further the accused failed to take necessary precautions in transporting the animals and also did not provide food and water to 4 the said animals. Then LW-7 seized the vehicle containing 7 cows and 5 calf and arrested accused 1 and 2 under cover of mahazar. Thus the accused committed an offence.

13.To bring home the charges against the accused the prosecution examined PWs.1 to 6 and marked Exs.P1 to P5 and no evidence adduced on behalf of accused.

14.PW-1 P.Sreenivasulu, Asst. Sub-Inspector in his chief examination deposed that on 14-02-2016 at 4.30 pm he assisted PW-6 Sub-Inspector along with police constables PW-2 C.Suryanarayana, PW-3 B.Venkatesh and LW-4 M.Anil Naik and mediators at Ashok Dab, on NH-44 near C.K.Palli village at the time of regular police checking. PW-1 further deposed that they stopped one Eicher van and the driver and another person in the said vehicle tried to escape from that place but they intercepted them. PW-1 further deposed that they found 17 cows and 5 calf in the vehicle. In his cross examination PW-1 deposed that they issued written summons to mediators PW-4 and PW-5 to act as witnesses. PW-1 further deposed that his role is confined to assist PW-6 and he do not know anything more than that.

15.PW.1 C.Surya Narayana, Police constable in his chief examination deposed that on 14-02-2016 at 4.30 pm he assisted PW-6 Sub-Inspector along with

Pws.1, 3 and LW-4 M.Anil Naik Police Constables along with mediators at Ashok

Daba, on NH44 road, near C.K.palli village at the time of regular police checking.

PW-2 further deposed that they stopped one Eicher van and the driver and another person in the said vehicle tried to escape from that place but they intercepted them. PW-2 further deposed that they found 17 cows and 5 calf in the vehicle.

PW-6 examined the accused and the accused informed that they are taking the said animals to slaughter house at Bangalore without having any valid license to transport the same. PW-2 further deposed that PW-6 arrested the accused and seized 17 cows and 5 calf including the crime vehicle under cover of mahazar. In his cross examination PW-2 deposed that they issued written summons to mediators 5

PW-4 and PW-5 to act as witnesses. PW-2 categorically admitted that they did not try to secure the locals at the scene of offence to act as mediators. PW-2 further deposed that his role is confined to assist PW-6 and he do not know anything more than that.

16.PW.3 M.Venkatesh Babu Naik, Police constable in his chief examination deposed that on 14-02-2016 at 4.30 pm he assisted PW-6 Sub-Inspector along with

Pws.1, 2 and LW-4 M.Anil Naik Police Constables along with mediators at Ashok

Daba, on NH44 road, near C.K.palli village at the time of regular police checking.

PW-3 further deposed that they stopped one Eicher van bearing No.AP24-X-8298 coming from Ananthapuramu and the driver and another person in the said vehicle tried to escape from that place but they intercepted them. PW-3 further deposed that they found 17 cows and 5 calf in the vehicle. PW-6 examined the accused and the accused informed that they are taking the said animals to slaughter house at

Bangalore without having any valid license to transport the same. PW-3 further deposed that PW-6 arrested the accused and seized 17 cows and 5 calf including the crime vehicle under cover of mahazar. In his cross examination PW-3 deposed that they issued written summons to mediators PW-4 and PW-5 to act as witnesses.

PW-3 categorically admitted that they did not try to secure the locals at the scene of offence to act as mediators. PW-3 further deposed that his role is confined to assist PW-6 and he do not know anything more than that.

17.PW-6 S.Jamal Basha, Investigating Officer who seized cattle along with crime vehicle and arrested the accused in his chief examination deposed that on 14-02-2016 at 4.20 p.m. he stopped the vehicle bearing No.AP-24-X-8298 near

Ashok Dhaba, NH-44 road near C.K.Palli, on search he found 17 cows and 5 calf in the vehicle. PW-6 further deposed that on enquiry, A1 and A2 confessed that they are transporting the said cattle to Bangalore for slaughter houses and then he seized the said vehicle and cattle and arrested A1 and A2 and seized the cattle under cover of mahazar marked as Ex.P3. PW-6 further deposed that basing on mahazar he registered a case in Cr.No.18/2016 and the First Information Report is marked as Ex.P4. PW-6 further deposed that he handed over the seized cattle to 6

International Animals and Birds Welfare Society, Ananthapuramu district and obtained acknowledgment which is marked as Ex.P5. In his cross-examination

PW-6 admitted that he did not issue any written summons to mediators Pws.4 and

5. PW-6 also admitted that the mediators Pws.4 and 5 are residents of two different villages. PW-6 further admitted that he did not seize any receipts from the possession of accused to show that the cattle purchased at Market Yard,

Ananthapuramu and he did not enquire the same at Market Yard, Ananthapuramu.

PW-6 further admitted that he did not enquire at Bangalore where the accused used to sold the cattle as per their confessional statement.

18.PW-4 M.Balakrishna, PW-5 S.Chithambaram who are the independent witnesses in whose presence Ex.P3 mahazar was prepared did not support the case of prosecution and reside from their 161 statement. They further deposed that they do not know anything about the present case and they signed on a paper without knowing its contents and further deposed that mahazars were not prepared in their presence. The signature identified by Pws-4 and 5 in mahazar are marked as Ex.P1 and P2 respectively. The learned Assistant Public Prosecutor treated the witnesses as hostile and cross examined with the permission of the court but failed to elicit anything infavour of prosecution case.

19.The case of the prosecution is that Accused 1 and 2 involved in purchase of cattle at Ananthapuramu and transporting the same to slaughter house at Bangalore. On the day of incident also the accused purchased 17 cows and 5 calf from Ananthapuramu Market Yard and started to Bangalore. On the way the police caught hold them and seized crime vehicle along with animals and arrested

Accused 1 and 2. The prosecution submitted that the case against Accused 1 and 2 is established by evidence of Pws.1 to 3 and 6 and the crime vehicle is owned by

A1. Pws.1 to 3 and 6 identified accused stating that they involved in the above crime, further submitted that even if the mediators turned hostile it is not fatal to the prosecution case and basing upon the the evidence of investigating officer the accused can convicted .

7

20.Per contra the learned Counsel for defence submitted that even though it is well established that the evidence of investigating officer can be looked into if the mediators turned hostile but the prosecution failed to prove that how they secured presence of mediators when they belongs to two different villages on 14-02-2016. The defence counsel further submitted that Pws.1 to 3 and 6 admitted in their cross examination that they did not seize any receipts from the accused about purchase of cattle and did not enquired whether the accused used to sold the purchased cattle at Bangalore. Hence the benefit of doubt shall be extended infavour of the accused and the accused have to be acquitted.

21.As per the above discussion, it is established that A1 is the owners of crime vehicle but the prosecution failed to prove that the accused purchased seized cattle from Ananthapuramu Market yard and the prosecution further failed to prove that the accused involved in transporting cattle to slaughter house at Bangalore without having any license or permission. The prosecution unable to establish that the accused transporting the cattle purchased at Ananthapur market yard to the slaughter Houses of Bangalore by producing proper evidence . Further the prosecution unable to prove about recording of Ex.P3 at the scene of offence.

Further the independent witnesses P.Ws.4 and 5 who are alleged eye witnesses at the time of arrest, seizure of cattle and crime vehicle did not support the case of prosecution. Even though it is established principle of law, that accused can be convicted even if the mediators do not support the case of the prosecution, the other reasons pointing to the guilt of the accused must be firmly established beyond all reasonable doubt. The evidence of other prosecution witnesses unable to establish that the accused involved in crime further the oral evidence of the investigating agency being interested witness cannot be base to prove the guilt of the accused. In this case, the prosecution failed to establish the case beyond all reasonable doubt for the reasons stated above.

22.Therefore in view of the above discussion, this court hold that the prosecution has failed to prove that the accused Nos.1 and 2 transported the animals without providing food, water to slaughter centers and the accused 1 and 2 8 committed offence punishable U/secs.428, 429 of I.P.C. And Sec.11(a)(b)(c)(d)(e)

(f) of Prevention of Cruelty of Animals Act 1960 r/w Secs.47(a), 48, 49, 50, 51(a), 52, 53, 54(1)(2)(3) and 56(1) of Cattle Transport Rules 1978. Hence the accused are entitled for benefit of doubt.

23.In the result, accused Nos.1 and 2 are found not guilty for the offences punishable U/secs.428, 429 of Indian Penal Code and Sec.11(a)(b)(c)(d)(e)(f) of

Prevention of Cruelty of Animals Act 1960 r/w Secs.47(a), 48, 49, 50, 51(a), 52, 53, 54(1)(2)(3) and 56(1) of Cattle Transport Rules 1978 and they are acquitted

U/s 248 (1) Cr.P.C. for the said offences. The bail bonds of the accused shall remain in force for a period of six months from today U/sec.437(A) Cr.P.C. for their appearance before the Honourable appellate court as and when directed.

Dictated to the Stenographer transcribed by him, pronounced and

corrected by me in open Court, on this the 11th day of December, 2017.

Sd/-P.Gayathri

Addl.Judicial Magistrate of I Class, Dharmavaram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE: PW.1 : P.Sreenivasulu -None- PW.2 : C.Surya Narayana PW.3 : M.Venkatesh Babu Naik PW.4 : M.Balakrishna PW.5 : S.Chitambaram PW.6 : S.Jamal Basha.

EXHIBITS MARKED FOR PROSECUTION

Ex.P1 : Signature of PW-4 in Ex.P3 seizure mahazar Ex.P2 : Signature of PW-5 in Ex.P3 seizure mahazar Ex.P3 : Confession, arrest and seizure mahazar Ex.P4 : First Information Report Ex.P5 : Acknowledgment given by Animals Rehabilitation Center.

EXHIBITS MARKED FOR DEFENCE

-NIL-

M.Os. MARKED

-NIL- Ild/-P.G. A.J.M.F.C. // True copy //

Addl. Judicial Magistrate of I Class, Dharmavaram.

9 10

CALENDAR AND JUDGMENT

District :: ANANTAPURAMU

Calendar cases tried by the Addl. Judl. Magistrate of First Class, Dharmavaram.

Date of

OffenceReportApprehension Released on Commence-Close of Sentence of Accusedbailment of trialtrial 14.2.201614.10.201711/12/17 14.2.201614.2.201614.2.201620.02.2017

Judgment in C.C.No.112/2016 on the file of Judl. Magistrate of First Class, Dharmavaram.

Complainant :: Sub-Inspector of Police, C.K.Palli police station.

Cr.No:18/2016

Sl. Name of the AgeFather’s NameCallingReligionResidenceMandal No.Accused 1Syed 35 Subhan SabBusinessMuslimKhaderapuraKolar Shabuddinyears 2Shaik Nissar32 Abdul KhaderBusinessMuslimThamba HalliKolar years

Offence :- U/secs.428, 429 of I.P.C. And Sec.11(a)(b)(c)(d)(e)(f) of Prevention of Cruelty of Animals Act 1960 r/w Secs.47(a), 48, 49, 50, 51(a), 52, 53, 54(1) (2) (3) and 56(1) of Cattle Transport Rules 1978.

Finding :- Accused Nos. 1 and 2 are found not guilty

Sentence :- In the result, accused Nos. 1 and 2 are found not guilty for the offences punishable U/secs.428, 429 of I.P.C. And Sec.11(a)(b)(c)(d)(e)(f) of Prevention of Cruelty of Animals Act 1960 r/w Secs.47(a), 48, 49, 50, 51(a), 52, 53, 54(1)(2)(3) and 56(1) of Cattle Transport Rules 1978 and they are acquitted U/s 248 (1) Cr.P.C. for the said offences. The bail bonds of the accused shall remain in force for a period of six months from today U/sec.437(A) Cr.P.C. for their appearance before the Honourable appellate court as and when directed.

ADDL. JUDL.MAGISTRATE OF FIRST CLASS,

DHARMAVARAM

Submitted to the Hon’ble I Additional Sessions Judge, Anantapuramu

Dis No. Dt.

1

OS.No.23/2013AJCJ, Dharmavaram

IN THE COURT OF THE ADDL. JUNIOR CIVIL JUDGE, DHARMAVARAM.

Present : Smt. P.Gayathri, Principal Junior Civil Judge, Dharmavaram. FAC of Addl. Junior Civil Judge, Dharmavarm. Tuesday, the 31st day of December, 2019.

ORIGINAL SUIT No.23/2013

Between:

1. Nama Ramamurthy S/o Late Nagabhusanam, aged about 62 years, Hindu, D.No.7/18-B, Business, Madhava Nagar, Dharmavaram.

2.Nama Gopal Krishna Prasad, S/o Late Nagabhusanam, aged about 52 years, Hindu, D.No.7/18-A, Business, Madhava Nagar, Dharmavaram.

...Plaintiffs.

And

1. Simhalam Thikka Swamy, S/o Sanjappa, aged about 36 years, Hindu, D.No.7/43-2, Weaver, Madhava Nagar, Dharmavaram.

2. Beere Gampalaiah, S/o Venkataramaiah, aged about 68 years, Hindu, D.No.7/48, Weaver, Madhava Nagar, Dharmavaram.

3. Beere Gopalakrishna, S/o Gampalaiah, aged about 48 years, Hindu, D.No.7/48, Weaver, Madhava Nagar, Dharmavaram.

4. Kacharla Prabhakar, S/o K.Sreeramulu, aged about 48 years, Hindu, D.No.7/46-A, Business, Madhava Nagar, Dharmavaram.

5. Pamisetty Gangaraju, S/o Narayanappa, aged about 52 years, Hindu, D.No.7/32, Business, Madhava Nagar, Dharmavaram.

6. K.Jagadeesh, S/o Mallikarjuna, aged about 48 years, Hindu, D.No.7/47, Business, Madhava Nagar, Dharmavaram.

7.The Commissioner, Dharmavaram Municipality, Dharmavaram.

...Defendants.

This suit came up for final hearing before me on 13.11.2019 in the presence of Sri D.Visweswara Rao, Sri D.Vijaya Raghavendra and Smt J.Sumalatha, learned Advocates for the plaintiffs and Sri K.Surya Prakash Rao, Sri M.P.Subba Rao and Sri D.Abdul Sab, learned Advocates for the defendants No.1, 4 to 6 and the defendants No.2, 3, 5 and 7 called absent and set exparte and upon hearing both sides and on perusing the material available on record this Court delivered the following:

2

OS.No.23/2013AJCJ, Dharmavaram

J U D G M E N T

This suit is filed seeking the relief of permanent injunction in favour of the plaintiffs and against the defendants, restraining the defendants, their men, agents and representatives from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property comprising of open space measuring of Ac.0.16 cents situated in survey number 414-2 in the village fields limits of Dharmavaram municipal area together with costs of the suit.

2.The averments of the plaint in brief are that the father of the plaintiff got the property in the plaint schedule survey number along with some other properties as his share in compromise decree in OS.No.44/1986 on the file of the Addl. District

Judge, Ananthapuramu. The plaintiff further submitted that his father laid plots in the

suit schedule survey number and sold the same to various persons, and retained the plaint schedule property and constructed their residence in some extent of the site and also constructed sheds which are let out to the third parties and left some open site as shown in the plaint plain. The plaintiff further submitted that the agricultural well situate in the open portion of the site is closed down due to the development around the said site. The plaintiff further submitted that the father of the plaintiff is in possession and enjoyment of the plaint schedule property and after his death the plaintiffs continued the same.

3.The plaintiff further submitted that his adjacent owners to the Northern suit schedule property sold their property by laying out as plots 40 years ago and the purchasers constructed houses in their respective plots. The plaintiff further submitted that the plaint schedule property is separated from others sites and houses by a compound wall which passes from East to West as shown in the plaint plan. The plaintiff further submitted that the defendants No.1 to 6 who are not having any right over the suit schedule site influenced the defendant No.7 with their political influence trying to take a rastha in the suit schedule site unauthorizedly and illegally and the defendants No.7 is trying to lay a rastha who has no unilateral authority to do the same without recourse of due process of law. The plaintiff further submitted that the plaintiff is unable to resist the defendants. Hence the present suit.

3

OS.No.23/2013AJCJ, Dharmavaram

4.Despite of receiving of the summons the defendant No.2 and 3 failed to appear and set exparte. In pursuant of receipt of the summons the defendants No.1,2 to 6 and 7 appeared before the court.

5.Despite of sufficient time granted to the defendant No.7 failed to file his written statement and hence the defendant No.7 set exparte on 09-07-2013.

6. The defendant No.1,4 to 7 in their written statement denied all the material allegations made by the plaintiff. The defendants further submitted that they purchased the house plots from the father of the plaintiff and they constructed the houses in their respective plots. The defendants further submitted that there exists pucca cement roads, drainage channels which passing on either side of the road which is laid in front of the residential houses of the defendant, and passes from

South to North and connects the cement road which is on the Northern side of the suit schedule property, that leads to Balaji Kalyanmantam Road. The defendants further submitted that the Electricity Department erected electric poles in the plaint schedule property for the supply of electricity to the residential houses in the vicinity. The defendants further submitted that the plaintiffs closed some portion of drainage channels highhandedly which continues to the Northern side of the defendants houses and trying to occupy the road portion which is left by the father of the plaintiffs.

7.The defendants further submitted that previously a metal road was existed in sy.no.414-2, 414-4, 414-3, 414-6 and 414-7 and the plaint schedule property is situate and a 20 feet road passing through the South to North from the time immemorial and the road in front of residential houses of the defendant was converted into cement road.

8.The defendants further submitted that the plaintiff closed the said road and some portion of the drainage channel resulting stagnate of drainage water in the vicinity which resulted to the death of school going girl due to Denguie Fever. The defendants further submitted that the same was questioned by the defendants No.1 to 6 for which the plaintiffs bore grudge and filed the present suit by suppressing all material facts. The defendants further submitted that the road existing in the suit schedule property from the time immemorial and the plaintiff are not entitled for the suit claim and prays to dismiss the suit.

4

OS.No.23/2013AJCJ, Dharmavaram

9.Based on rival pleadings, the following issues are settled for trial:

1. Whether the plaintiff is entitled to permanent injunction as prayed for?

2. To what relief?

10.In order to prove their case the plaintiffs got examined the plaintiff No.1 as P.W.1 and marked Exs.A1 to A4 and Ex.A5 by D.W.1 and A6 by D.w.2. To rebut the evidence of the plaintiff the defendant No.1 got examined himself as D.W.1 and marked as Ex.B1 (the same is marked by P.W.1 during his cross examination) and the defendant No.6 as D.W.2.

11. The learned counsel for the plaintiff during his course of arguments submitted that an Advocate Commisisoner was appointed to note down the physical features of the plaint schedule property and filed his report which is in consonance with the case of the plaintiff and the plaint plan. The learned counsel further submitted that a compound wall, is constructed to separate the plaint schedule property from other properties and the defendnats are trying to lay a new rastha as shown in the plaint plan. The learned counsel further submitted that there is no road as alleged by the defendants in their written statement and the Advocate

Commissioner report evidenced the same. Hence, the plaintiff is entitled for the permanent injunction and prays to decree the suit.

12. The learned counsel for the defendants during his course of arguments submitted that the plaintiff as P.W.1 admitted that his father left 20 feet road to

Northern side of the plots which was sold by him to third parties. The learned counsel further submitted that the Municipality laid drainage lines and formed pucca cement roads on either sides of the road left by his father. The learned counsel for the defendant submitted that previously there was metal road in between the said plots which are in existence from time immemorial. The learned counsel further submitted that the plaintiffs obstructed the drainage channels by encroaching the drainage channels and irrigation channels to some extent and obstructed the road as the drainage water which was discharged from the houses of the defendants stagnated in the vicinity and a school going girl died due to Denguie fever. The learned counsel 5

OS.No.23/2013AJCJ, Dharmavaram

further submitted that as the defendants questioned the act of the plaintiff he filed the present suit by suppressing the said facts and prays to dismiss the suit.

13.ISSUE NO.1

The case of the plaintiffs is that the suit schedule property belongs to them and the defendants were trying form a rastha which was not in existence unauthorizedly and illegally.

14. The plaintiff in order to prove their case got examined plaintiff No.1 himself as P.W.1 by filing his affidavit in lieu of chief examination which is nothing but a replica of plaint and marked Exs.A1 to A4, Ex.A5 by D.W.1 and Ex.A6 by D.W.2 and

Ex.B1 in his cross examination. P.W.1 in his evidence said that the defendants No.1 to 6 pressurizing the defendant No.7 to form new rastha as shown in plaint plan which is not in existence.

15.During the course of cross examination P.W.1 admitted that there was well in the suit schedule property and the same was closed prior to filing of the suit.

P.W.1 admitted that his father laid plots in the suit survey number in sy.nos.414-2, 414-3, 414-4, 414-6 and 414-7 and left road on the North-East side of the said plots and measuring 20 feet and he admitted the lay out plan shown to him as the plan of the suit schedule property. P.W.1 admitted that the Municipality laid drainage channels and there were irrigation channels near to the suit schedule property, that denied they to closed the said drainage channels and irrigation channels. P.W.1 further admitted that the municipality laid pucca cement roads over the roads left by their father. P.W.1 denied that he filed the present suit as the defendants No.1 to 6 requested him to restore the drainage channels which was closed by which leads to the death of one school going girl Lakshmi Prasanna and denied the other questions.

16.To rebut the evidence of the plaintiffs, the defendants got examined the defendant No.1 got examined as D.W.1 by filing his affidavit in lieu of chief examination which is nothing but a replica of written statement. D.W.1 reiterated the contents of the written statement and marked Ex.B1 (which is already marked through P.W.1 in his cross examination). D.W.1 deposed that the plaintiffs closed the same portion of the drainage channels formed by the municipality and irrigation 6

OS.No.23/2013AJCJ, Dharmavaram

channels in the suit schedule property for which the drainage water stagnated in the vicinity. D.W.1 further deposed that due to the said stagnation of drainage water, a school going girl died due to the Denguie fever. D.W.1 further deposed that as the defendants No.1 to 6 questioned the action of the plaintiffs and requested them to restore the drainage channels for which he filed the present suit. D.W.1 admitted that the road shown in Ex.A5 is the present disputed road. D.W.1 deposed that his house and other defendants houses are situate in sy.no.414-3 and agricultural and irrigation channel passes through sy.no.414-3 to sy.no.414-4. D.W.1 further deposed that the land of the plaintiff is situate adjacent to plot No.91 and which is an deaden road.

D.W.1 admitted that they requested the municipality to acquire the same portion from the plot No92 and to form a road from East-West and to connect it to Baljiri

Kalyanamantam road.

17.The defendant No.6 was got examined as D.W.2 by filing his chief examination affidavit which is nothing but a affidavit in lieu of chief examination of

D.W.1 and the written statement. D.W.2 in his chief examination stated in the similar lines of D.W.1. D.W.2 in his cross examination deposed that the plaintiffs retained existing open site to the North-West of dilapidated well compound wall couple with irrigation channel etc.

18.On conjoint reading of the plaint, written statement, evidence i.e., oral and documentary and as per statements of both learned counsels the suit schedule property belongs to the plaintiff which is not in dispute. It is an admitted fact that the father of the plaintiff lay out the land fell to his share i.e., the suit schedule property and sold the same to third parties and retained some portion. It is also an admitted fact that there exists drainage channels, roads and irrigation channels in the vicinity. It is also an admitted fact that the municipality laid pucca cement roads on the roads laid by the father of the plaintiffs.

19.The contention of the plaintiffs is that the defendants No.1 to 6 with their political influence trying to form a rastha in the suit schedule property which is not in existence. The defence of the defendants is that the plaintiff closed the drainage channels laid by the municipality and also obstructed the roads laid by their father.

The evidence of the plaintiff and the defendants clearly established that the existence 7

OS.No.23/2013AJCJ, Dharmavaram

of cement roads, drainage channels and irrigation channels. But there is ambiguity with regard to the existence of the road in the suit schedule property hence it is necessary to consider the report filed by the learned advocate commissioner who was appointed. As per the report of the advocate commissioner the cement road from passing from South-West from the main road situate in the South and North. Further, as per commissioner’s report in between the cement roads there exists an empty place width of 92 feet. Thus, it clearly shows that the cement road is not in continuous. Thus, the commissioner report supporting the case of the plaintiff and the defendants did not let in any evidence to show the existence of disputed rastha.

20.There is no evidence to show that the plaintiffs encroached the disputed site and closed the existing road. As per evidence of D.W.1, the defendant No.1 to 6 requested municipality to form rastha in order to connect the same to Balija Kalyan

Mandapam through plot No.92. Thus, the evidence of D.W.1 supports the case of the plaintiffs about non-existence of road in the plaint schedule property and the defendant are trying to create a new road unauthorizedly.

21.In view of the above facts, it is evident that the plaint schedule property belongs to the plaintiffs and they are in possession and enjoyment of the same which is not able to rebut by the defendant by cogent, relevant evidence. As per evidence of

D.W.1 and 2, the defendants are trying to lay new road in the plaint schedule property.

Hence the plaintiffs are entitled for the permanent injunction as their apprehends that the defendants will dispossess them from the plaint schedule property with a view to form new road.

21.Issue No.2:-

In the result, the suit is decreed with costs in favour of plaintiffs and against defendants by granting permanent injunction in favour of the plaintiffs and against the defendants, restraining the defendants, their men, agents and representatives from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property comprising of open space measuring of

Ac.0.16 cents situated in survey number 414-2 in the village fields limits of 8

OS.No.23/2013AJCJ, Dharmavaram

Dharmavaram municipal area and the defendants do bear their own costs.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court, on this the 31st day of December, 2019.

Sd/- Smt P.Gayathri

Principal Junior Civil Judge,

FAC Addl. Junior Civil Judge, Dharmavaram.

Appendix of Evidence

List of Witnesses Examined

For Plaintiff: For Defendants:

P.W.1: Nama Ramamurthy D.W.1: S.Thikka Swamy D.W.2: K.Jagadeesh.

Exhibits marked on behalf of the plaintiff

Ex.A.1: The certified copy in I.A.No.207/1973 in OS.No.44/1968 on the file do Assistant District Judge, Ananthapuramu Dated 17-07-1975. Ex.A.2:The property tax demand notice for father of the plaintiffs dated 26-06-2012. Ex.A.3: The property tax demand notice for the plaintiff No.1 dated 26-06-2012. Ex.A.4: The property tax demand notice for the plaintiff No.2 dated 26-06-2012. Ex.A.5 : Photographs (6 in No.) and CD of dispute road (through D.W.1) Ex.A.6 : Photocopy of the area plan with roads and plots (through D.W.2)

Exhibits marked on behalf of the defendants:

Ex.B.1: Lay out plain (through P.W.1 and D.W.1). Ild/- P.G. P.J.C.J.

FAC A.J.C.J.

1

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

Present: Smt P.Gayathri, Judicial Magistrate of I Class Friday, the 27th day of April, 2018.

C.C.182/2018

Between: State rep. by the Prohibition and Excise Sub-Inspector, Dharmavaram Excise police station. … Complainant.

And

D.Ramachandra Reddy, aged 67 years S/o Lakshmi Reddy R/o Yerravankapalli village, Nallamada mandal. …Accused.

This case came up for final hearing before me on 26-04-2018 in the presence of Assistant Public Prosecutor for the State and of Sri D.Abdul Sab, Advocate for the accused and this matter having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1.The Sub-Inspector of Police, Prohibition and Excise Police Station,

Dharmavaram filed a charge sheet against the accused for offence punishable under section 34(a) of A.P. Excise Act, 1968 in Crime No.214 of 2017 of

Dharmavaram Excise Police Station.

2. The case of the prosecution is that, as per the instructions of

Assistant Commissioner, Prohibition and Excise Department, Anathapuramu while

S.M.Rafi, Prohibition and Excise Sub-Inspector along with L.W.3 P.Kalyani,

Constable and securing mediators A.Lakshmi Reddy, Y.Bali Reddy were conducting patrolling to detect excise offences, they reached Dampetla cross on Bathalapalli to

Mudigubba road at 10.30 a.m. on 10.10.2017, by the time they noticed the accused in possession of one polythene bag and on seeing them, the accused tried to escape from there and on suspicion, they apprehend the accused. Then S.M.Rafi,

Prohibition and Excise Sub-Inspector verified the said polythene bag found 19 nips of Haywards select whisky. On interrogation by S.M.Rafi, Prohibition and Excise

Sub-Inspector, accused revealed his identity particulars and source of Liquor.

2

Thereupon, S.M.Rafi, Prohibition and Excise Sub-Inspector seized the property, drawn one bottle from each brand as sample for the purpose of analysis, affixed identification slips, sealed and duly signed by raiding party. Since the possession of liquor without valid license and permit is an offence, after explaining the grounds of arrest to the accused, S.M.Rafi, Prohibition and Excise Sub-Inspector arrested the accused under the cover of panchanamma. Basing on the panchanamma

S.M.Rafi, Prohibition and Excise Sub-Inspector, Dharmavaram registered a case in

Cr.No. 214/2017 under section 34(a) of A.P. Prohibition and Excise Act, 1968 and he seized all the remaining bottles. S.M.Rafi, Prohibition and Excise Sub-Inspector sent the sample bottles to the chemical analysis and the analyst opined that the samples are Indian Made Liquor. S.M.Rafi, Prohibition and Excise Sub-Inspector send proposals to confiscate to the Deputy Commissioner of Prohibition and Excise,

Anathapuramu on 31-10-2017 and awaiting for the orders. After receipt of analysis report the charge sheet is filed. Hence, the charge.

3.This court took cognizance of the offence under section 190(1)(b)

Cr.P.C. for the offence punishable under section 34(a) of A.P. Excise Act. Copies of documents were supplied to the accused as per provisions of section 207 Cr.P.C.

4.The accused was examined under section 239 Cr.P.C. The accused denied the accusation against him and pleaded not guilty and claimed to be tried.

Charge was framed against the accused for the offence punishable under section 34(a) of A.P. Excise Act. The charge was read over and explained to the accused in

Telugu.

5.In support of the case of the prosecution, P.Ws.1 to 5 were examined.

Ex.P1 to P6 and the sample drawn as M.O.1 and remaining seized bottles as M.O.2.

6.After completion of the evidence for prosecution, the accused was examined under section. 313 Cr.P.C. and all incriminating evidence available against him is read over and explained him in Telugu for which he stood by the denial and refuted the correctness of incriminating circumstances with in which they were confuted. However, the accused did not let in any evidence, oral or documentary, in his defence.

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7.Heard both sides. Perused the material on record.

8.Now the point for determination is:

Whether the prosecution could prove that accused was in possession of

liquor bottles and thereby committed an offence punishable under section

34(a) of A.P. Excise Act, 1968 beyond all reasonable doubt or not?

9.POINT:

PW.1 S.M.Rafi, Prohibition and Excise Sub-Inspector deposed that on 10.10.2017 at 10.50 am he conducted raids along with his staff and mediators as per the instructions of Assistant Commissioner, Prohibition and Excise Department,

Anathapuramu and proceeded to Dampetla cross of Bathalapalli to Mudigubba road and he found a person with possession of white polythene bag containing 19 nips of

Haywards select whisky. P.W.1 further deposed that on seeing the excise officials the said person tried to ran away but he caught hold and on enquiry the person revealed his identity particulars who is none other than the accused. P.W.1 further deposed that he seized the liquor bottles and arrested the accused under cover of panchanama Ex.P1 and he drawn one sample for chemical examination which is marked as M.O.1. P.W.1 further deposed that he informed the accused that possession of liquor without licence is an offence and brought him to police station and registered a case in Cr.No.214/2017 U/sec.34(A) of A.P. Prohibition and Excise

Act and the First Information report is marked as Ex.P.2 and then he released the accused on bail. P.W.1 further deposed that he sent the sample for chemical examination through Court and the said letter is marked as Ex.P3, the examiner opined that the sample is Indian made liquor and the said report is marked as

Ex.P4. P.W.1 further deposed that he send proposals to confiscate the remaining seized liquor bottles to the Deputy Commissioner of Prohibition and Excise,

Anathapuramu and awaiting for the orders and the said liquor bottles produced

before the Court marked as M.O.2 and the same was returned to the excise police.

P.W.1 further deposed that after completion of investigation L.W.5 G.Mohan Babu, filed charge sheet against the accused. In his cross examination P.W.1 deposed that the mediators are residents of Mudigubba and he did not secure mediators who are 4 residents of scene of offence. P.W.1 in his cross examination that, scene of offence is a busy locality and denied other formal suggestions put to him.

10.PW.5 C.Fakrunnisa, Excise Constable deposed that on 10-10-2017 she assisted P.W.1 in conducting raids and they proceeded to Dampetla cross on

Bathalapalli – Mudigubba road and found the accused in possession of polythene bag and they caught hold of him. P.W.5 further deposed that on enquiry by P.W.1 they found 19 nips of liquor bottles with the possession of accused without valid license and then P.W.1 seized the liquor bottles under cover of panchanama marked as Ex.P1 and she drafted the said panchanama on the instructions of P.W.1 and she signed in it along with mediators. P.W.5 in her cross examination deposed that the scene of offence is busy locality area and they did not true to secure mediators in the locality and denied other formal suggestions put to her.

11.P.W.4 G.Mohan Babu, Prohibition and Excise Sub-Inspector deposed that after completion of investigation done by P.W.1 he verified the same and filed charge sheet.

12.P.W.2 A.Lakshmi Reddy, P.W.3 Y.Bali Reddy, independent mediators who allegedly attested the panchanama deposed that they do not know anything about this case and they signed on a paper without knowing the contents of the same. P.Ws.2 and 3 further deposed that the excise officials neither arrested the accused nor seized property from the possession of accused. The signatures identified by P.Ws.2 and 3 in panchanama marked as Ex.P5 and P6 respectively.

The learned APP treated P.Ws.2 and 3 as hostile and cross examined them with the permission of the court. Even though the prosecution cross examined

P.Ws.2 and 3 but failed to make out case against the accused. In the cross examination the P.Ws.2 and 3 denied the suggestion made by the prosecution that they colluded with the accused and deposing false evidence.

13.The learned Assistant Public Prosecutor has submitted that the evidence of P.Ws. 1 and 5 that the accused was found carrying liquor illegally and he was found in possession of 19 nips of 180 ml bottles of duty paid liquor is cogent and reliable. He also submitted that Ex.P.4 Chemical Analysis Report that the 5 sample bottles contains Indian Liquor further supports the case of the prosecution that the accused was found in possession of the bottles. The accused is liable to be convicted for the offence he was tried for even though the mediators not supported the case of the prosecution.

14. The learned Counsel for the Accused, on the other hand, submitted that P.W.1 being the Investigating Officer is an interested witness in securing conviction in this case and his evidence cannot be relied upon by this Court. The learned counsel further submitted that as provided under section 100(4) Cr.P.C.,

P.Ws. 1 and 5 had taken two independent witnesses i.e., P.W.2 and P.W.3 who did not supported the version of the prosecution which is fatal to the case of the prosecution. It is his further submission that the alleged recovery of the liquor bottles and drafting of Ex.P1 Panchanamma is hit by sections 25 and 27 of the

Indian Evidence Act and that P.W.1 did not prepare any rough sketch of the scene of offence, casts serious aspersions on the case of the prosecution that the accused was arrested at the alleged scene of offence on the alleged date and time.

15. The learned Counsel also submitted that there is delay in sending the samples to the Chemical Examiner and Ex.P.4 Chemical Analysis report cannot be relied upon by this Court.

16.Admittedly the scene of offence is a busy locality. Further P.W.1 and

P.W.5 deposed that they did not try to secure the presence of mediators from the scene of offence. However as per the evidence of P.W.1 and P.W.5 that they secured the independent mediators at Mudigubba itself does not inspire confidence as no notice in writing is served to the mediators, as contemplated under section 100(4) Cr.P.C.

17.The alleged recovery of the liquor bottles from the possession of the accused and his statement that he is selling liquor is hit by sections 25 and 27 of the Indian Evidence Act. Further Ex.P.1 is inadmissible in evidence as it is hit by section 162 Cr.P.C.

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18.The seizure of the sample bottles, M.O.1 were allegedly made on 10.10.2017. The prosecution has not explained the reason for the delay in sending

M.O.1 to the Chemical Examiner. Further all the bottles recovered from the possession of the accused are not sent to the Chemical Examiner. The Hon'ble High

Court of Andhra Pradesh in Mudavath Mothia v. State of A.P., 2002 (1) ALT (Crl.) 437 (A.P.), was pleased to hold that it is the duty of the prosecution to prove that all bottles seized from the accused contain Indian Liquor. In this case all the bottles are not sent to the Chemical Examiner.

19. Hence it is manifest that the prosecution did not prove the guilt of the accused beyond all reasonable doubt. The accused is entitled for acquittal on benefit of doubt.

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

U/sec.34 (a) A.P. Prohibition and Excise, 1968 and he is acquitted U/s 248(1)

Cr.P.C. for the said offence. The bail bonds of the accused shall remain in force for a period of six months from today U/sec.437(A) Cr.P.C. for his appearance before the Honourable Appellate Court as and when directed. M.O.1 liquor sample bottle shall be destroyed after expiry of appeal time. M.O.2 18 nips of liquor bottles which are in the custody of Dharmavaram Excise Police shall dispose the property as directed by Deputy Commissioner and intimate to this Court.

Directly typed to my dictation, corrected and pronounced by me in open Court, on this the 27th day of April, 2018.

Sd/-P.Gayathri

Judicial Magistrate of I Class,

Dharmavaram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE:

PW.1 : S.M.Rafi -None- PW.2 : A.Lakshmi Reddy PW.3 : Y.Bali Reddy PW.4 : P.Kalyani PW.5 : G.Mohan Babu.

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EXHIBITS MARKED FOR PROSECUTION

Ex.P1 : Panchanama Ex.P2 : First Information Report Ex.P3 : Letter of advice Ex.P4 : Analysis report Ex.P5 : Signature of PW-2 in panchanama Ex.P6 : Signature of PW-3 in panchanama.

EXHIBITS MARKED FOR DEFENCE

-NIL-

MOS MARKED FOR PROSECUTION

M.O.1 : Returned Sample bottles M.O.2 : 18 nips of whisky bottles.

Ild/-P.G. J.M.F.C.

// True copy //

Judicial Magistrate of I Class,

Dharmavaram.

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CALENDAR AND JUDGMENT

District :: ANANTAPURAMU

Calendar cases tried by the Judl. Magistrate of First Class, Dharmavaram.

Date of

OffenceReportApprehension Released on Commence-Close of Sentence of Accusedbailment of trialtrial 10/10/1710/10/1710/10/1710/10/1713/04/18 16.04.201827.04.2018

Judgment in C.C.No.182/2018 on the file of Judl. Magistrate of First Class, Dharmavaram.

Complainant :: Sub-Inspector of Police, Pro.&Excise PS, Dharmavaram

Cr.No:214/2017

Sl. Name of the AgeFather’s NameCallingReligionResidenceMandal No.Accused 1Ramachandra 67 Lakshmi Coolie HinduYerravanka Nallamada ReddyyearsReddyPalli

Offence :- U/sec.34 (a) of A.P. Prohibition and Excise Act 1968.

Finding :- Accused is found not guilty.

Sentence :- In the result, the accused is found not guilty for the offence punishable U/sec.34 (a) A.P. Prohibition and Excise, 1968 and he is acquitted U/s 248(1) Cr.P.C. for the said offence. The bail bonds of the accused shall remain in force for a period of six months from today U/sec.437(A) Cr.P.C. for his appearance before the Honourable Appellate Court as and when directed. M.O.1 liquor sample bottle shall be destroyed after expiry of appeal time. M.O.2 18 nips of liquor bottles which are in the custody of Dharmavaram Excise Police shall dispose the property as directed by Deputy Commissioner and intimate to this Court.

JUDL.MAGISTRATE OF FIRST CLASS,

DHARMAVARAM.

Submitted to the Hon’ble I Additional Sessions Judge, Anantapuramu

Dis No. Dt.

9 // True copy //

Judicial Magistrate of I Class,

Dharmavaram.