P Manga Kumari

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IN THE COURT OF THE SENIOR CIVIL JUDGE AT BOBBILI

Present:- P.Manga Kumari,

Senior Civil Judge, Bobbili.

Tuesday, this the 30th day of April, 2019

O.S.No.143 of 2011

Between:-

1. Vemula Lakshmikantha (Died), W/o Bhaskara Rao, aged about 48 years, Working as Teacher, Seebilli Peddavalasa Village, Makkuva mandal, Vizianagaram District.

2. Vemula Neelimani, D/o late Bhaskara Rao, aged about 21 years, S.Peddavalasa Village, Makkuva mandal, Vizianagaram District.

3. Vemula Bharathi Devi, D/o late Bhaskara Rao, aged about 20 years, S.Peddavalasa Village, Makkuva mandal, Vizianagaram District.

4. Vemula Sai Abhilash, S/o late Bhaskara Rao, aged about 19 years, S.Peddavalasa Village, Makkuva mandal, Vizianagaram District.

…Plaintiffs

A n d :-

1. Iddum Ramalakshmi, W/o Sankara Rao, Seebilli Peddavalasa Village, Makkuva mandal, Vizianagaram District.

2. Chokkapu Krishnamma, W/o Gopi, aged about 48 years, Peda Paltheru Village, Badangi Mandal, Vizianagaram District.

3. Vemala Mahalakshmi, W/o Krishnamurthy, S.Peddavalasa Village, Makkuva mandal, Viziangaram District.

4. Datti Suseela, W/o Tirupathi Rao, S.Peddavalasa Village, Makkuva Mandal, Viziangaram District.

5. Allu Satyanarayana, S/o late Appalaswamy, Seebilli Peddavalasa Village, Makkuva mandal, Vizianagaram District.

6. Allu Appalanarasamma, W/o late Appalaswamy, Seebilli Peddavalasa Village, Makkuva Mandal, Vizianagaram District.

…Defendants

This suit is coming on 13.03.2019 for final for hearing before me in the presence of Sri T.Panigrahi, Advocate for the plaintiff and of Sri

M.Ananda Kumar, Advocate for defendant and after having stood over for consideration, till this day, this court delivered the following:-

J U D G M E N T

1. Originally Suit was filed by the 1st plaintiff. During pendency of the

Suit, 1st plaintiff died, hence, plaintiff 2 to 4 were impleaded as legal heirs of 1st plaintiff. (Plaintiff’s 2 to 4 are the legal heirs added as per the orders 2 in I.A. 618/20185, dated 09.11.2018). The plaintiff’s filed this Suit against the defendants 1 to 6 praying the court to grant decree in their favour for a perpetual injunction restraining the defendants, their men and supporters from ever interfering in any manner with the possession and enjoyment of the plaintiff’s over the schedule property with costs.

2.Brief facts of the plaint are:- One Yandrapu Paramma is the original owner of the schedule property and some other properties. She is the mother of 6th defendant and defendants 1 to 5 are the children of 6th defendant. The said Yandrapu Paramma died inter state more than 25 years back. Her husband predeceased her. The 6th defendant was the only class I legal heir and she succeeded the entire properties of Yandrapu Paramma.

The 6th defendant Allu Appalanarasamma alienated all the landed properties gradually right from the year 1985 to number of persons including the 1st plaintiff who purchased the plaint schedule property from

Allu Appalanarasamma under 7 registered sale deeds. Out of 7 sale deeds in respect of the sale deed dated 03.07.1998, the 1st plaintiff as an abundant caution joined the 5th defendant as executant, though, he has no right at all over the schedule property. The schedule properties are situated at S.Peddavalasa and Mavudi Villages of Makkuva Mandal and Salur

Mandals respectively. Item No. 1 to 5 in ‘A’ schedule lands are of Mavudi

Village. The lands at Mavudi Village though belonged to Yandrapu Paramma in the Revenue records the name of one Mogiti Appalaswamy was recorded by mistake. Therefore, the sale deeds dated 24.01.2000 and 10.09.2003 in respect of the lands of Mavudi Village were executed by 6th defendant and daughter of Mogiti Appalaswamy by names Nemalapudi Jagannadhamma and Senapathula Appalanarasamma in favour of the 1st plaintiff. Right from the respective dates of all the 7 sale deeds, the plaintiff has been in 3 possession and enjoyment and the name of 1st plaintiff has been mutated in the revenue records in respect of the schedule property. The No.3 Adangal also reflects the name of 1st plaintiff in respect of schedule properties which clearly shows that she has been in possession and enjoyment of the same.

The plaintiff has been raising wet and dry crops as per the convenience.

Defendants 1 to 5 have no manner of right title or interest over the schedule property at any time. It was the separate property of 6th defendant acquired by her succession from her mother. All the defendants are aware of the facts. Though the 6th defendant sold away some of the other properties to number of 3rd parties only with a view to harass the plaintiff and to extract money from the plaintiff unlawfully, collusively filed a suit through the defendants 1 to 4 for partition against the defendants 5 and 6, the plaintiff and the vendors of the plaintiff under the sale deeds

dated 24.01.2000, 30.06.2001 and 10.09.2003, leaving the other

purchasers of land from 6th defendant by names Alapati Venkateswara Rao,

Alapati Jaya Bharathi Devi, Jada Narayana, Jada Suramma, Jada Poleesu,

Vemala Narayanamma and Vemala Simhachalam. The said Suit O.S. 5/2009 was filed on the file of this Court for partition and for mesue profits from the date of suit till delivery of possession. The defendants suppressed the facts of alienation of the schedule property to the plaintiff and 3rd parties on the other hand, they have mentioned in O.S. 5/2009 the properties sold to the plaintiff and which are now in possession and enjoyment of the plaintiff only. Though the defendants have no manner of the right, title or interest over schedule property at the behest of 5th defendant who is a wagabond they have been proclaiming since 3 days that they would trespass into the schedule property and cause loss and damage to the standing crops belonging to the plaintiffs unlawfully with the brute force. If they do so the plaintiffs will be put to irreparable loss which cannot be compensated by 4 way of pecuniary damages. The plaintiffs have primafacie case, balance of convenience in their favour further ‘A’ schedule corresponds to ‘B’ schedule.

Subsequent to the filing of the suit, the 1st plaintiff died and plaintiffs 2 to 4 were added as necessary parties as they have succeeded the entire estate of the deceased plaintiff No.1 and they are entitled to continue the suit and the same circumstances as on the date of the suit still prevails.

3.Written statement filed by 1st defendant which was adopted by defendants 2 to 4. So also written statement of 6th defendant filed which was adopted by 5th defendant. 1st defendant in his written statement specifically denied the plaint allegation and further contended that the defendants 1 to 4 are the daughters of late Allu Appalaswamy of Seebilli

Peddavalasa Village. 5th defendant is the son of Allu Appalaswamy born out of their wedlock with the 6th defendant. The plaint schedule property originally is the property of 6th defendant who is the daughter of Yandrapu

Raminaidu and Paramma who died long back and as such 6th defendant is the only daughter of Ramunaidu and Y.Paramma. They brought Allu

Appalaswamy of Sambara Village to their house in his childhood and thereafter given in marriage to 6th defendant with Allu Appalaswamy and kept Allu Appalaswamy as illatom son-in-law.

It is further contended that Late Allu Appalaswamy is not the only their illitam son-in-law, but he shall be treated as if their own son. So that, by doing hard labour, late Allu Appalaswamy developed the properties of late Smt. Yandrapu Paramma, who in turn got the schedule mentioned property, from her parents. The mother of the 6th defendant executed a will in favour of the husband of the 6th defendant in respect of her properties, including the schedule mentioned land, in favour of the husband of the 6th 5 defendant i.e., late Allu Appalaswamy. After the death of late Smt. Andrapu

Paramma, who died about 24 years back, the will executed by her was acted upon and that, the entire properties of her including the schedule mentioned property, devolved on the father of the defendant No.1 to 5 .

It is further contended that late Allu Appalaswamy became the absolute owner of the schedule mentioned land. As late Allu Appalaswamy left the defendants, behind him as his class-I legal heirs, all of them became the co-sharers of the property of late Allu Appalaswamy, including the schedule mentioned property. Though, the marriages of the defendants

No.1 to 5 were performed, the entire family properties are kept in joint and the defendant No.1 to 4 are also having their respective shares in the property. But, the defendant No.1 to 4 came to know that, the plaintiff managed to keep the defendant No.5 and 6 in her fold and even though the mother of 6th defendant purchased some part of the schedule mentioned land, from the others parents namely, one Nemalpuri Jagannadamma,

Senapathula Appalanarasamma and Kottisa Thavinnadora etc., of the same

Village, mischievously played fraud and obtained the Registered deeds on different dates in respect of the schedule mentioned land, in collusion with them.

The defendant No.5 and 6 are not the absolute owners of the schedule mentioned land and that, the others are having no title and possession of some part of the schedule mentioned land, though the plaintiff took advantage of the non-changing of the names in the Revenue records and that, obtained the sale deeds fraudulently from the 3rd persons, whose names were stated above and the 6th defendant, those Registered sale deeds are not valid and binding on this defendant. The 5th defendant is residing at Hyderabad and without knowing the rights of the defendants

No.1 to 4 came to know that at the instance of the 6th defendant the 5th defendant joined in the execution of one Registered sale deed only, along 6 with the 6th defendant and as such, not executed the other Registered sale deeds along with 6th defendant, in respect of the schedule mentioned joint family property of the defendants. So that, no valid title is conveyed under law to the plaintiff, as the plaintiffs or the other persons are having no right what so ever, to sell away the schedule mentioned land, in favour of the plaintiff.

The Registered sale deeds obtained by the plaintiff from others, by playing fraud are abinitio void and are liable to be cancelled automatically.

The plaintiff is not entitled either to tress-pass or to cultivate the schedule mentioned land, by using force and influence being a rich and politically highly influenced person. For which, the defendant No.1 to 4 got issued the

Registered Notice dated 06.03.2007 to the plaintiff and others. Then, the plaintiff filed the caveat petition, before this court as well as before the court of the Junior Civil Judge at Salur.

As the schedule mentioned property is owned and possessed by the defendants family, the defendant No.1 to 4 got filed the suit number O.S.

5/2009 on the file of this court, as against the defendant No.5, 6 for granting the decree to effect partition of the schedule mentioned property, mentioned there in that plaint into 6 equal shares and for allotment of one such divided share to each of the plaintiff therein i.e., the defendant No.1 to 4 for their exclusive possession etc., reliefs. The plaintiff No.1 to 4 therein i.e., defendant No.1 to 4 herein have showed the plaintiff as 3rd defendant and the other persons who are defendant No.4 to 6.

In the above suit the evidence of the plaintiffs therein i.e., the defendant No.1 to 4 herein was closed and the matter is being posted from time to time to produce the evidence of the defendants therein. As the defendants No.1 and 2 were made set-exparte, in that suit number

O.S. 5/2009, the same was posted for the evidence of the 3rd defendant.

The defendant No.1 to 6 are in actual physical possession and enjoyment 7 jointly, since long back much less, prior to the filing of this suit. The plaintiff suppressed the material facts and got filed the present suit, without seeking for declaration to declare her alleged right, in the schedule mentioned property in the light of the contention, put forth by the defendant No.1 to 4 herein, in the Suit No.5/2009 on the file of this court, filed by them in respect of the same property and filed for grant of perpetual injunction decree only to restrain the defendants, their men and supporters from ever interfering in any manner,with the alleged possession and enjoyment of the plaintiff of the schedule mentioned property. The Suit is not maintainable under law and liable to be dismissed inlimine.

4.Written statement filed by 6th defendant adopted by 5th defendant specifically denying the plaintiff allegations except admitting the relationship alleged in the plaint and further contending that the alleged sale deeds are nothing but forged and fabricated by the plaintiff with oblique motive to grab away the schedule land of the defendant. 6th defendant further contending that originally the schedule land is owned and possessed by the parents of this defendant. The husband of this defendant is the illatom son-in-law to her parents and he is nothing but equivalent to a son to her parents. The husband of the defendant by did hard labour developed the family properties (plaint schedule property) along with the father of this defendant. After the death of the father of this defendant the husband of the defendant managed the family properties, as such the mother of this defendant executed a will in favour of the husband of this 5th defendant in respect of all their family properties, including the plaint schedule property earlier there were suits pending on the file of

Principal Junior Civil Judge at Salur in respect of some piece of land which is

part of plaint schedule land in between this defendant and one Reddy. The plaintiff who is well acquainted with this defendant, insisted in contesting 8 the above Suit and obtained the thumb impression of this defendant on some papers representing that the same would be filed in Court. This defendant came to know that the plaintiff fabricated certain documents alleging that this defendant executed Registered sale deed. The schedule property owned and possessed by all the defendants because they have inherited the property after demise of this defendant. Hence prayed the court to dismiss the suit without costs.

5. The following issues were settled for trial.

1.Whether the plaintiffs are in possession and enjoyment of plaint schedule property by the time of filing of the Suit ?

2. Whether the plaintiffs 2 to 4 are having locus standi to continue the Suit ?

3.Whether there is any cause of action as alleged for filing this Suit ?

4.Whether the documents filed by the plaintiffs are obtained by fraud and under influence as alleged by defendants ?

5.To what relief ?

To substantiate the case of the plaintiff. The 2nd plaintiff herself was examined as PW1 got marked. Ex.A1 to Ex.A15. 6th defendant was examined as DW1. One Yamala Joginaidu was examined as DW2, Gummadi

Laskhmana Dora was examined as DW3. No documents were marked on defendant’s side.

Heard arguments on both sides.

The learned counsel for plaintiff relied upon the decisions:

In Yerra Veeraiah Vs. Kanukuri Shanthamma and others, 2018(4) ALT 523

The learned counsel for defendant relied upon the decisions:

In P.Lakshmi Reddy Vs. L.Lakshmi Reddy, AIR 1957 SC. 314 (V 44 C 45

April).

The facts are not identical to the facts on hand. The settled law under the above decision that one of the co-sharer cannot claim adverse 9 possession against another co-sharer. Further the plea that Hindu law recognize illtom son-in-law as a heir in the absence of natural boy, will only be applicable when any deed or share is specifically alloted but not as of right in per with co-sharer. Here in the case on hand the husband of 6th defendant predeceased the mother of 6th defendant. Though they raised the contention that the mother of 6th defendant executed a will no will was exhibited before the Court. Moreover as Appalaswamy predeceased the mother of 6th defendant he cannot be deemed as legatee under the will.

Balkrishna Dattatraya Galande Vs. Balkrishna Rambharose Gupta and another, 2019(2) ALT 7 (SC).

The facts of the case are not identical to the facts on hand.

The law applied is quiet applicable to the cases of the said nature (as referred in the above citation) and there is no contra as it is settled law. As discussed supra the 1st plaintiff (in this case) possession and enjoyment was even admitted by the other side. In support of said admission the possession and enjoyment are in consonance of the sale deeds. There is no evidence to suspect that Ex.A1 to A9 are brought into existence by way of undew-influence and fraud.

6.For better appreciation and convenience sake issue No.4 is settled first: To decide the fact in issue, it is fit and proper to go through oral and documentary evidence let in by both parties to the Suit.

PW1 admitted that her husband’s name is Prasada Rao. She admitted that she has not mentioned her husband’s name in her chief affidavit, but got mentioned her father’s name. She denied the suggestion that she is adopted by her deceased father Bhaskara Rao. She know the 6th defendant.

She admitted that the native place of Allu Appalaswamy is Sambara Village and that he married the 6th defendant and was brought as Illitom son-in- law. She admitted that defendants 1 to 5 born and lived at S.Peddavalasa 10

Village. Appalaswamy used to do cultivation and that some of the properties were shown in the name of Moriri Appalaswamy and she further deposed that it was done erroneously but it’s not correct. Sanapathi

Appalanarasamma and another woman which she could not recollect her name is the daughters of Mogili Appalaswamy. She admitted that the daughters of Mogili Appalaswamy were also executants of Ex.s A6 and A7.

She admitted that her father got senior paternal aunt/step mother. There used to be properties disputes between her father and senior paternal aunt/step mother. She admitted that Appalanarasamma(6th defendant) used to reside in the village alone. She admitted that her son oftenly used to visit the village to see his mother and used to stay with her. She denied the suggestion that as the said Appalanarasamma is an old lady her mother used to look over her welfare and also used to provide the necessities and that taking the bad condition of Appalanarasamma, her mother fraudulently brought into existence the registered sale deed without valid consideration.

The plaint schedule property is an extent of Ac.15.81 cents of land. She deposed that she cannot say the details such as Survey number and its boundaries but she can show the schedule property. It might be true that she has shown Ac.19.46 cents as plaint schedule property and she physically is deposing as per her knowledge. She denied that as she has not able to say the correct extent of land and its details which reflect that she is not for possession and enjoyment of the property. She deposed that in the year 2014 her parents were murdered. She admitted that she has not filed any revenue records showing mutation in her name with regard to the schedule property. She admitted that one Pudi Krishnamurhty filed suit against defendants 5 and 6. Herself, her sister and brother were also added as party to the suit subsequently, that suit is dismissed and she further deposed that she do not know whether the said Krishnamurhty preferred an appeal A.S.37/2018 on the file of this Court and admitted that the subject 11 matter of that Suit as well as A.S.37/2018 shown as item No.3 of plaint ‘A’ schedule property are same.

DW1 admitted that the plaint schedule property is the property of her mother which she has succeeded. She is the only daughter to her parents.

Rythvari patta was also issued in her mother’s name. She admitted that her husband predeceased her mother within duration of 5 or 6 months, she has not filed any suit for cancellation of the sale deeds which she has executed relating to the suit schedule property. She gave birth to four daughters and one son who are the defendants 1 to 5. She do not know whether her daughters filed any suit for partition against herself, her son (5th defendant) and the vendees in whose favour the sale deeds were executed. During the lifetime of her husband she sold some lands to an extent of Ac.4.00 of land under three sale deeds. She admitted that the above lands to an extent of

Ac.4.00 sold under three sale deeds were not the subject matter in the suit for partition filed by her daughters. She deposed that Lakshmikantham who is the deceased 1st plaintiff and her husband worked as Teachers and the sale deeds executed in favour of the other 3 persons are agriculturists. She admitted that the sale of our properties her son Satyanarayana(5th defendant) left to Hyderabad alongwith his family. She admitted that at present herself and her children i.e., 4 daughters and one son are all having good terms. They are no disputes or stained relationship between them.

She deposed that her daughters oftenly visit at her Village S.Peddavalasa and are taking care of her. Her mother died intestate and she has not executed any documents. Her mother has not executed any testamentary document or allotting any share to her husband who was brought to her house as Illetam son-in-law. After sale transaction of Jada Narayana, Jada

Poleesu and Land Trinadha they obtained Pattadar Pass Book and title deeds relating to their property. They have not given any objection to the

Tahsildar concerned stating that they have not sold any land to the 12 deceased 1st plaintiff and they have not taken any steps to stop the mutation of the name of deceased 1st plaintiff in the Revenue records. She has not issued any registered legal notice to the deceased 1st plaintiff for misleading and cheating and thereby got executed Ex.A1 to A7. She has not filed any criminal case against the deceased 1st plaintiff. As far as the schedule and boundaries of plaint schedule property there is no dispute with regard to its correctness. Her husband during his lift time has not earned any lands except the lands which was succeeded from her mother, they have no other properties. She do not know whether her son who used to oftenly visit Peddavalasa followed the directions of Maoist people and tried to trespass into the suit schedule properties. She further deposed that through ryths he used to do cultivation. She admitted that her son was convicted and sentenced to imprisonment in three criminal cases for committing theft of maize and cotton. She do not know whether the above 3 criminal cases were filed by the deceased 1st plaintiff. She admitted oftenly herself, her daughters and her son used to cause threat to the deceased 1st plaintiff that they will trespass into the schedule property. She further deposed that the deceased 1st plaintiff used to threaten there claiming title over the property. She has not filed not any suit for declaration of her title. She further deposed that she got it mutated hence her name reflects in the Revenue records prior to this. The sister of

Lakshmikanthamma (1st plaintiff) is Bujjamma which is the local name. She admitted that the family of the deceased 1st plaintiff is having good reputation and the family of the deceased 1st plaintiff is well versed family having maid and farm servants. Gummadi Trinadha and Lakshmu are not related to they family. She do not know whether the said Gummadi Trinadha and Lakshmu stood as witnesses in the earlier suit filed by her daughters for partition. She admitted that after execution of Ex.A1 to A7, there are no disputes between herself and Lakshmikantamma so also with her 13 daughters. She do not know whether the partition suit was got filed by her daughters at the instance of Satyanarayana(D5) after they came down to their village. She do not know whether her son Satyanarayana committed murder of deceased 1st plaintiff and her husband at Peddavalasa as the plaintiff objected for interference of Satyanarayana with regard to schedule property. She admitted that in the Sessions Case filed against her son her daughter Suseela is also co-accused.

DW2 who is the 3rd party deposed in his cross examination that, he resident of Seebili Peddavalasa village of Makkuva mandal. He know the deceased 1st plaintiff. He know the details of plaint schedule property. He do not know whether the deceased 1st plaintiff purchased the plaint schedule property from the DW1 under Exs A1 to A7. He admitted that the husband of PW1 predeceased, the mother of PW1 and the properties relating to DW1 were succeeded from her mother. DW1 is 7 years elder to him and admitted that he was aged 10 years by the date of marriage of DW1. The family of

DW1 own approximately Ac.12.00. He is deposed that the extent of land is approximately, as he was not present during the measurements of the lands of DW1. He has no knowledge with regard to sale transactions of the lands of DW1. He do not know the details of the disputed property. He admitted that the name of deceased 1st plaintiff was mutated in the

Revenue Records relating to the property and further deposed that DW1 used to move with deceased 1st plaintiff. Neither DW1 nor her family members filed any criminal case/report against the deceased 1st plaintiff while she was in possession and enjoyment of the schedule properties. He admitted that after return of D5 from Hyderabad to their village he got filed partition suit through his sisters and tried to trespass into schedule property and committed offence. He do not know whether D5 committed murder of deceased 1st plaintiff and her husband when they tried to obstruct D5 from trespassing into the schedule property.

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DW3 is the 3rd party to the suit. According to him he worked as farm servant of 6th defendant’s family. He in his cross examination deposed that

Allu Appalaswamy died about 50 years back. He admitted that after the death of Paramma the mother of DW1 succeeded the properties. He do not know the names of the vendees to whom DW1 sold her properties and the plaint schedule property. During the lifetime of Appalaswamy, he used to cultivate the lands on wages. Subsequent to the death of Appalaswamy, he used to cultivate other lands by doing coolie works. He admitted that the defendants as well as DW1 never raised any objection to the possession and enjoyment of deceased 1st plaintiff after purchase. He do not know whether 5th defendant used to cause threat to the deceased 1st plaintiff with regard to the possession and enjoyment of schedule property. He do not know who is Onti Trinadha. He do not know the contents of his chief affidavit and at the request of the DW1, he affixed his thumb impression.

7.Ex.A1 to A7 are the certified copy of sale deeds got executed in favour of 1st plaintiff by 6th defendant and others. Ex.A8 to Ex.A14 are the copy of 1-B namoona copy of No.3 account copy. In fact Ex.A11, Ex.A12 are the account copies issued by Village Revenue Officer concerned and are marked subject to objection of proof and relevancy. Ex.A15 is the served copy of plaint in O.S.5/2009 on the file of this Court.

The contention of the defendants is that the 1st plaintiff got fabricated and forged with a ulteriormotive to grab the property and the possession is still with the defendants. In fact, they are not denying the execution of sale deed Moreover it is contended that 1st plaintiff used to look over the welfare of 6th defendant, who was residing alone and got executed the documents by deceipt.

If really, Ex.A1 to Ex.A7 which are registered document are not genuine document said to have been executed by fraud mis representation, certainly the defendant might have taken appropriate legal steps. The 15 evidence of Dws 1 to 3 clearly reveals the execution of the documents with regard to the properties and possession of 1st plaintiff after purchase.

As per the pleadings of the defendants the mother of 6th defendant executed a will bequeathing some properties in favour of the husband of 6th defendant i.e., Allu Appalaswamy. In fact no will was introduced before this

Court, except raising the said plea of ‘will’ there is no whisper with regard to details of the will or proof of the same moreover, the alleged will has not seen the light of the day. Further, even if assuming for a while as this suit is filed by the plaintiff for grant of permanent Injunction wherein the court cannot rely on the weakness of the defendants case as the plaintiff has to prove their own case the evidence of DW1 clearly reveals that

Allu Appalaswamy pre-deceased the mother of 6th defendant. Hence, even if the mother of 6th defendant executed a will bequeathing some properties in favour of the husband of 6th defendant, he cannot be considered as legateeunder the will as he died before the will was acted upon/come into force.

Further more the evidence of DW1 that her mother died interstate and she has not executed any document. Her mother has not executed any testamentary document allotting any share to her husband who was brought to her house as illetom son-in-law.

It is an admitted fact that the children of 6th defendant filed

O.S. 5/2009. She deposed that she do not know whether her daughters filed

any Suit for partition against herself, her son (5th defendant) and the vendees in whose favour the sale deeds were executed.

It is revealed that 6th defendant sold some other properties to some third parties and those properties were not shown in the Partition Suit. The daughters filed Partition Suit in fact the evidence of DW1 clearly reveals that there are good terms.

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She admitted that the after the sale of their properties her son

Satyanarayana(5th defendant) left to Hyderabad alongwith his family. She admitted that at present herself and her children i.e., 4 daughters and one son are all having good terms. There are no disputes or strained relationship between them. She deposed that her daughters oftenly visit her at her village S.Peddavalasa and are taking care of her. Her mother died intestate and she has not executed any documents. Her mother has not executed any testamentary document or allotting any share to her husband who was brought to her house as illetam son-in-law. After sale transaction of Jada Narayana, Jada Poleesu and Land Trinadha they obtained Pattadar

Pass Book and title deeds relating to their property. They have not given any objection to the Tahsildar concerned stating that they have not sold any land to the deceased 1st plaintiff and they have not taken any steps to stop the mutation of the name of deceased 1st plaintiff in the Revenue records. She has not issued any registered legal notice to the deceased 1st plaintiff for misleading and cheating and thereby got executed Ex.A1 to A7.

The nature and conduct of the 6th defendant appears that she is hand in glow of other defendants and at their instance only she is raising the plea. The admission made by DW1 is that 1st plaintiff’s family is having good reputation. She admitted that the family of the deceased 1st plaintiff is having good reputation and the family of the deceased 1st plaintiff is well versed family having maid and farm servants. Gummadi Trinadha and

Lakshmu are no-where related to their family. She admitted that after execution of Ex.A1 to A7, there are no disputes between herself and

Lakshmikanthama so also with her daughters. She do not know whether the partition Suit was got filed by her daughters at the instance of

Satyanarayana (D5) after they came down to their Village. Even according to DW1 after selling the schedule property her son left to Hyderabad with his family children.

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The evidence of Dws 1 to 3 clearly reveals that subsequent to purchase by 1st plaintiff, the 6th defendant was never in possession and enjoyment of the properties.

Upon whom the burden of proof lies.

Section 101 of Indian Evidence Act envisages as follows:- Whoever desires any Court to give Judgment as to any legal right or liability depend on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

A must prove the existence of those facts.

Generally the burden of proof initially lies on the plaintiff who approaches the Court to grant some relief or reliefs.

Section 103 of Indian Evidence Act envisages as follows:- The burden of proof as t any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

The defendant when raised the plea of fraud forgery and fabrication.

The onces lies upon the defendant to prove the said fact. No steps taken by 6th defendant or other defendants but it appears 5th defendant interfered with the possession and enjoyment of 1st plaintiff after purchase. The vendor of Ex.A1 to A7 who is the 6th defendant is having knowledge of the possession and enjoyment but she has not taken any legal steps. Several rivialcontentions were raised by defendants No.1 to 5 with regard to right title of plaint schedule property but it is an admitted fact that originally the property belongs to the mother of 6th defendant who died interstate and 6th defendant succeeded. During the lifetime of the husband of 6th defendant, she sold some properties to some third parties so also some properties i.e.

plaint schedule property was sold to 1st plaintiff. After the 5th defendant 18 came down from Hyderabad, he got filed O.S. 5/2009 seeking for partition that was dismissed. It is also revealed by way of admission that the properties sold to other person (third parties) were not the subject matter in the present Suit. Except this plaint schedule property that shows the attitude and conduct of defendants No.1 to 5.

It also appears that several contention were raised by defendants 1 to 5 for seeking partition contending that the mother of 6th defendant had executed a will bequeathing some properties to Allu Appalaswamy who was their illatum son-in-law and hence 6th defendant cannot solely execute any document i.e., sale deed in favour of 1st plaintiff as they are having share of their father they ought to have taken steps against the third parties also.

The evidence of DW1 clearly reveals that there are no disputes among the defendants after the arrival of 5th defendant from Hyderabad and with the participation her son and her daughters the said for partition Suit is filed.

Hence the plea of fraud and undue influence is nothing but only to grab the property that was sold by 6th defendant to 1st plaintiff. In fact, the 5th defendant is facing conviction and sentencewith regard to the murder case.

Hence this Court is of considerable view, that the plea of fraud and undue influence was not made out by the defendant. Hence this issue is settled in favour of plaintiff against the defendants.

Issue No. 1 to 3 relates to common aspect. Hence settled conjointly:-

The evidence let in clearly shows that immediately after purchase of plaint schedule property under Ex.A1 to A7, 1st plaintiff was in possession and enjoyment that was recognized by the Revenue Officials as well as the vendor to the document. It also appears that till the return of D5 from

Hyderabad, there is no interference and after his return and upon his instigation, he started interfering with the possession and enjoyment of 1st plaintiff, which led till murder of 1st plaintiff and her husband (during 19 pendency of this Court) and it is also revealed that 5th defendant is in undergoing imprisonment. After the death of 1st plaintiff her children were impleaded. Still defendants are claiming right over the property and contesting the matter that itself shows the cause of action continues which do not need new/fresh cause of action. It also appears there is interference of the defendants inspite of the fact that 1st plaintiff is having clear title over the plaint schedule property. Hence plaintiff’s 2 to 4 are having locus standi to continue the Suit as the legal heirs of 1st plaintiff.

The facts and circumstances clearly proves that there is clear cause of action for the 1st plaintiff to file this Suit. Hence issues 1 to 3 are settled in favour of plaintiffs.

8. Issue No.5: In the result, the suit is decreed with costs granting perpetual injunction in favour of plaintiffs restraining the defendants their men, supporters from ever interfering in any manner with the possession and enjoyment of plaintiffs over the plaint schedule property until the plaintiffs were in lawfully continued in possession.

Typed to my dictation corrected and pronounced by me in open court on this the 30th day of April, 2019.

Sd/- P.Manga Kumari

Senior Civil Judge,

Bobbili.

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintiff : For Defendant :

PW1 : Vemula Bharathi Devi DW1 : Allu Appalanarasamma

DW2 : Yamala Jogi Naidu

DW3 : Gummadi Lakshmana Dora 20

DOCUMENTS MARKED

For Plaintiff :

Ex.A1 : Certified copy of registered sale deed in favour of plaintiff No.1 executed by D5 and D6 dated 03.06.1998 Ex.A2 : Certified copy of registered sale deed executed by D6 dated 23.02.1999 Ex.A3 : Certified copy of registered sale deed executed by D6 dated 26.04.1999 Ex.A4 : Certified copy of registered sale deed executed by D6 and Kottisa Kanchandora dated 30.06.2001 Ex.A5 : Certified copy of registered sale deed executed by D6 in favour of 1st plaintiff dated 01.10.2004 Ex.A6 : Certified copy of registered sale deed executed by D6 and N. Janganndahamma, E.Narasamma in favour of 1st plaintiff dated 24.01.2000 Ex.A7 : Certified copy of registered sale deed executed by D6 and N. Janganndahamma, E.Narasamma in favour of 1st plaintiff dated 10.09.2003 Ex.A8 : Certified copy of 1(B) account of S.Peddavalasa in the name of deceased 1st plaintiff

Ex.A9 : Ex.A6 : Certified copy of 1(B) account of Muvidi village in the name of deceased 1st plaintiff

Ex.A10: Ex.A8 : Ex.A6 : Certified copy of 1(B) account of Muvidi village issued by Tahasildar, Salur dated 14.09.2011 Ex.A11 : Certified copy of No.3 adangal of Mavudi village for Fasalis 1411, 1419 and 1420 issued by VRO, S.Peddavalasa Ex.A12 : No.3 adangal copy/ adangal for the Fasali 1419 issued by VRO, Muvidi village (Ex.A11 and A12 are marked subject to objection proof relevancy and custody)

Ex.A13 : No.3 adangal copy/adangals for the Fasali 1411issued by Tahsildar, Salur Ex.A14 : Account copy/adangal for the fasali 1420 issued by Tahsildar, Salur, Ex.A15 : Served copy of plaint in O.S.5/2009 on the file of this court.

Sd/- P.Manga Kumari

Senior Civil Judge,

Bobbili.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT BOBBILI

Present: P.Manga Kumari,

Senior Civil Judge, Bobbili

Tuesday, this the 22nd day of June, 2021

O.S.No.209/2014

Between:

1.Vennela Madhusudhana Rao s/o late Chinnammanaidu, aged 43 years, residing at Kaviripalli village, Kaviripalli post, Makkuva Mandal, Vizianagaram District.

2.Vennela Hema Latha, w/o Madhusudhana Rao,aged 36 years, rest -do-.

... Plaintiffs

And:

1.Alamanda Ananda, s/o late Venkayya, aged 55 years, residing at Kaviripalli village, Kaviripalli p[ost, Makkuva Mandal, Vizianagaram District.

2.Alamanda Appalaswamy, s/o late Venkayya, aged 65years rest -do- 3.Alamanda Mariya, w/o Appalaswamy,aged 54 years rest -do-.

4.Alamanda Kothayya, s/o Appalaswamy, aged 30 years rest -do-.

5.Alamanda Cheemadu@ Cheemayya,s/oAppalaswamy,aged 23 years rest -do-.

6.Alamanda Sundara Rao s/o Venkayya, aged 53 yearsrest -do-.

7.Avala Birasayya,s/o Bangaru Mudhili, aged 58years Telagadavalasa village, Markondautti ( P.O), Makkuva Mandal, Vizianagaram District.

8.Kona Ramu s/o China Sanyasi, aged33 years rest -do-.

9.Avala Gavarayya s/o Pentayya, aged47 years rest-do-.

...Defendants.

This suit coming on 24.03.2021 for final hearing before me in the presence of Sri

C.Suryanarayana, Advocate for plaintiff and Sri N.Jagadeeswararao, Advocate for the defendants 1 to 6 and the defendants 7 to 9 having been called absent and set exparte, and the matter having stood over for consideration to this day, this Court delivered the following:

JUDGMENT

This suit is filed by the plaintiffs against the defendants for granting permanent injunction in favour of the plaintiffs, against the defendants restraining the defendants, their 2 successors in interest, their men, their agents and assignees from ever interfering with the peaceful physical possession and enjoyment of the plaint schedule lands in any manner and for costs of the suit.

2. The brief facts of the plaint are:

The 2nd plaintiff is the wife of the 1st plaintiff; they are permanent resident of

Kaviripalli village. The 1st plaintiff is the absolute owner of the plaint-A schedule land, whereas the 2nd plaintiff is the absolute owner of the plaint-B schedule land. The 1stplaintiff purchased the plaint-A schedule mentioned land from his Vendors Penta Narayanaswamy naidu etc., covered by a registered sale deed dt: 19.03.2012 for a valid cash consideration of

Rs.5,44,500/-ever since the 1st plaitnff has been in possession and enjoyment of the same till this day without any let or hindrance from any quarter. Whereas the 2nd plaintiff purchased the plaint-B schedule mentioned land from her vendors Vennela Ramunaidu etc., for a valid cash consideration of Rs.1,22,000/- covered by a regd. Sale deed dt: 29.11.2007.

Ever since the 2nd plaintiff has been in peaceful physical possession and enjoyment of the same till this day. The government also issued pattadar pass books and title deeds in favour of the plaintiffs in respect of the schedule mentioned lands. The title deeds are now kept with bank authorities since the plaintiffs availed loan. The plaintiffs used to raise dry crops like cotton, corn and other pules over the schedule mentioned lands and enjoy the usufruct derived there from without any interruption. In the year 2014 also the plaintiffs raised cotton and corn crops in the plaint schedule lands by investing huge amounts.

The defendants herein have no any manner of right, title and interest whatsoever.

They have nothing to do with the said lands. The defendants are greedy persons. They have no respect towards law and order. Moreover due to political rivalry in the village, the defendants entertained an evil idea to grab the schedule mentioned lands either by hook or crook.

The plaintiffs are the helpless persons in the village. Whereas the defendants have mustered strength in the village. While so, since week days, the defendants have been making upon proclamations in the village that they would trespass into the plaint schedule 3 mentioned lands and to grab the same. The defendants have been making hectic preparations to trespass into the schedule lands and to grab the same even at the costs of riot or blood shed. If the evil designs of the defendants transacted into actions, the plaintiffs would be to great irreparable injury and loss which cannot be compensated by way of awarding pecuniary damages. The situation is very and threatening and alarming and there is every urgency involved in this matter. Hence, this suit.

3. Written statement filed by 1st defendant adopted by the defendants 2 to 5.

The 1st defendant specifically denied the plaint allegations further contending that the villagers where the suit schedule property is located and some other villagers belong to the estate of Salur Zamindaor. After the abolition the estates under the Act 26 of 1948 the said estates are vested into the State Government. In the survey and settlement operations after the abolished of the estates conversion into rythwari the plaint schedule mentioned property and some other lands of the plaint schedule village of Kaviripalli village classified as a banjar. Plaint- schedule property was full of sorbs and bushes and more than 100 years back, the grandfather of the defendants1 to 6 by name

AlamandaJogayya removed some of the sufficient shrubs and bushes and brought into cultivation. After the death of Jogayya the father of the defendants1 to 6 by name

AlamandaVenkayya removed the remaining sorbs and bushes and brought the entire-A and

B schedule mentioned property brought into cultivation and raised dry crop like jute, magi, ragi etc., crops and after the death of Venkayya the defendants 1 to 6 are in possession and enjoyment without any interruption.

While so, the R &B department laid a road more than 40 years back to the villages of Kaviripalli to Telagadavalasa in between the plaint schedule mentioned property.

Therefore, the plaint schedule mentioned property in Survey No.355/1 and the survey

No.357/4part are in side by side. The defendants 1 to 6 are in possession of Ac.2.13 cents and defendant No.7 is in possession of Ac.1.50 cents in survey No.355/1 which is A- schedule mentioned property as like the defendants 2 to 5 are one Alamanda Prakasham who is the brother of 2nd defendant had Ac.1.00 defendantNo.8 had got Ac.1.20cents in 4 possession and enjoyment The plaint schedule property locally called as Theyyalavodi guddi and all the defendants 1 to 5 are in possession and enjoyment of the plaint schedule property.

While so, in the year 1988 the defendant No.2 submitted a petition to the

Government for issue of D-form patta for the survey No.355/1 to an extent of Ac.0.69 cents and the village munisif got published A-1 notice about the issuance of patta to the defendant No.2, the Government recognised the possession of the defendants1 and 7 for survey No.355/1 and got mutated other possession for the fasali 1403,1405, 1408, 1411,1412 and 1413 in the year 2014 the defendants 1, 2, 6 and the other 3 brothers of

D2 filed an application before the MRO, Makkuva for issuance of D-form patta and cultivation account for the survey No.355/1 and 357/4 in Janmabhoomi programme but the

MRO Makkuva admitting the possession of the defendants and postponing the issuance to the pattas to the defendants due to the political pressure. Therefore, in the year 2007 defendants 1 and 2 send their representation to the state legal service Authority and

Mandal Legal Services Authority, Salur requesting to issue a direction to the MRO,Makkuva for issuance D-form pattas to the survey No.355/1, the State Legal Services Authority directed the mandal Legal services authority to enquiry into the matter and submit a report. In turn the Mandal Legal Services Authority, Salur registered the said representation as PLC No.6/2007 and directed the MRO, Makkuva enquiry into the matter and submitted the report and also appointed an advocate commissioner to localise the suit locality along with revenue records. The commissioner visited the said suit locality submitted his report along with plan stating that defendants1 to 7 are in possession of the said survey No.355/1 and also the MRO, Makkuva enquired into the matter and on the basis of memos and No.3 adangals. The defendant No.2 Alamanda Appalaswamy is in possession and enjoyment in Survey No.355/1 to an extent of Ac.3.63 cents and on the basis of the said report, the Mandal Legal Services Authority Salur closed the said P.L.C.No.6./2007.

While so, in the year 2007 the defendants 1 to 5 filed an application before the

Sub Registrar Office, Salur for the valuation of the land in Survey No.355/1 and 357/4.

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The Sub Register, Salur got issued a certificate stating that the survey No.355/1 is a

Government land and further stated in the said certificate no value was shown to the said land. Thus, it clearly proved that the plaint schedule mentioned land is Government land but not an a zeroythi land in the year 2010 also the defendants 1and 2 filed a petition before the R.D.O, Parvatipuram for issuance of D-form pattas for survey No.355/1 in turn the

RDO, Parvatipuram send the said representation to the MRO, Makkuva but the MRO,

Makkuva did not take any action. Again in the same year the 2nd defendant sent a petition to Upalokayukta, Hyderabad against the MRO, Makkuva and VRO, Kaviripalli for non-issuance of D-form pattas and No.3 adangals. The Upalokayukta, Hyderabad directed

District Collector, Vizianagaram who enquiry into the matter and submit his report. In turn the District Collector, Vizianagaram directed the RDO, Parvathipuram to enquiry into the mater and submit his report. The RDO, Parvathipuram personally enquired into the matter and found that the suit land is in possession of 1st defendant and submitted report to the

Collector, Vizianagaram on 06.04.2011.

Vizianagaram District was affected by Neelam cyclone in the year 2010,in that cyclone the lands were damaged in Makkuva mandal including the survey No.355/1 and 357/4. In that connection that State Government got issued compensation to the defendant No.1 and 2Rs.4,000/- and Rs.3200/- respectively to the survey No.355/1 and

Survey No.357/4 to the defendant No.2. The said amounts were received by them in the year 2013through the Andhra Bankl Markondaputtiand State Bank of India, Makkuva.

While so, in the year 2014 the defenants1 and 2 gave a complaint to the Tahsildar, Makkuva against the VRO, Gurumurthy for non-recording of the cultivation account.

On 21.10.2014 the 1st plaintiff filed a petition along with challana before the MRO,

Makkuva to depute the mandal surveyor to measure the land and shown the boundaries of the land in Survey No.355/1 and 357/4 Part. The deputy Mandal surveyor and VRO gave an endorsement to the 1st plaintiff stating that the land under the above survey Numbers are in possession and enjoyment of the schedule caste people since times immemorial and a case is pending on the file of this court and therefore as per the orders of the court they will be show the boundaries of the land. Thus, it clearly proved the plaintiffs 6 are not in possession and enjoyment of the land under the above survey numbers.

That the alleged vendors of the plaintiffs have no title or possession of the plaint schedule property and the alleged vendors are closely related to the plaintiffs and they are created sham, collusive and fraudulent documents created without taking any consideration in order to occupy the plaint schedule property by hook or crook as the defendants belongs to schedule caste and schedule tribes and they have no strength in the village, due to the escalation of the prices of the lands in Makkuva area after the state bifurcation.

That the VRO, Gurumurthy, plaintiffs and the alleged vendors are close friend since long back and at the instigation of the plaintiffs the VRO, Gurumurthy mutated the names of the plaintiffs in the revenue records. For the purpose of filing of this suit and the entries in revenue records will not prove the title and possession of the plaintiffs over the plaint schedule mentioned property. Hence, the suit for injunction itself is not maintainable under law and liable to be dismissed. There is no cause of action for the filing the suit. Hence, the defendants prayed to dismiss the suit with costs.

4. Written statement filed by 7th defendant adopted by the defendants 8 and specifically denying the plaint allegations, But admitting that the plaintiffs 1 and 2 are the absolute owners of the Plaint-A and B-schedule properties under registered sale deed

dt: 19.03.2012 and 29.11.2007 and they are in possession and enjoyment of the same.

Further contending that one Parannaidugari Appilamma has got her land on the Northern side of the plaint-A schedule mentioned land. On the further North of the land of said

Appilamma, the defendants 7 to 9 are having their own land and they are cultivating the same which caused an eye sore to the plaintiffs. So, that un-necessarily the plaintiffs impleaded the defendants 7 to 9 to the suit proceedings. The defendants 7 to 9 never made any attempt to trespass into the plaint schedule mentioned land at any point of time. They have no intention to enter into the plaint schedule mentioned property.

However, under the guise of the interim injunction orders issued by this court, the plaintiffs used to make complaints to the local police stating that the defendants 7 to 9 have violated the orders of this court which is causing much inconvenience to the 7 defendants 7 to 9 herein. The defendants 7 to9 are in exclusive possession and enjoyment of their own land, but they never trespassed into the plaint schedule land at any point of time. So, the suit is not maintainable against the defendants 7 to 9. In fact some people who are having some family rivalry with the defendants 7 to 9 induced the plaintiffs to file the present suit against the Defendants 7 to 9 along with other defendants. Hence, the defendants prayed to dismiss the suit with costs.

5. Basing on the pleadings of the parties on either side the following issues have been framed for trial:

1.Whether the plaintiffs are entitled for permanent injunction as prayed for or not?

2. To what relief?

6. To substantiate the case of the plaintiffs, Pws.1 to 5 were examined and got marked Exs.A1 to A12 marked. The defendant in proof of their pleas, examined Dws.1 and got marked Ex.B1 to B.11.

6. P.Ws.1 to 5 filed their chief affidavits in support of plaintiffs case. DW.1 filed his chief affidavit in support of the defendant’s case.

PW1 admitted in his cross-examination that 2nd plaintiff is his wife. The road is intervening in between the lands purchased under Exhibits A1 and A2. He admitted that

Penta Ramunaidu and others filed suit OS5/16 on the file of this court with regard to the schedule property. Whereas himself along with his wife were shown as parties. He has gone through the contents of the pleadings as well as the documents filed in OS 5/16. He admitted that the plaintiffs in OS 5/16 are claiming entire property in the village along with the plaint schedule property. He denied the suggestion that the survey no covered under plaint schedule property is subject matter of the sale deeds relates to the plaintiffs in OS 5/16. He admitted that his vendors are not parties in the sale deeds executed in favour of the plaintiffs in OS 5/16. at the time of purchase he has verified the link documents of his vendor. He has filed proof of documents showing the title of his vendors. Except his sale deed he has not filed link documents of his venders. By the date of purchase it is a dry land. Due to Neelam cyclone his lands were not effected he has no knowledge whether any 8 other ryoths were given compensation due to neelam cyclone. He admitted that the schedule property is within in Makkuva Mandal. He denied the suggestion that the 21-10- 2014 he submitted a requisition to the MRO Makkuva to Measure his land and to handover the same to him. He further deposed that he has submitted a letter to the MRO concern to get the land measure as the neighbouring land owner is trying to encroach in to his land.

No report was given by the surveyor after measuring the land and denied the suggestion that the surveyor got the lands measured and has submitted his report. mentioning that the said property is in possession enjoyment of SC people including the defendants and that as civil matter is pending before the court they are not entitled to hand over possession to him. He denied the suggestion that since the abolition of the estate of Salur the lands was left banjar and that the defendants since their fore-fathers are cultivating the lands they are in possession which was recognized by the Government. He do not know whether any correspondence in the revenue departments going on for allotment with regards to this lands as the defendants and other SC people are enjoying the schedule property along with other property.

PW2 in his cross-examination deposed that he has been retired from the services as

Village Revenue Officer in the year 2012. He assumed charge as Village Revenue Officer for the Villages Petlavalasa and Kaviripalli in the year 1992 and continued in the services till his retirement. The disputed land covered under Survey Nos. 355/1, 357/4 are situated at

Petlavalasa. The signature shown to him in the No.3 account copies ( i.e.Ex.B1 to B6) for the fasalies 1403, 1405, 1408, 1411, 1412, 1413 were issued by him. Except in Ex.B.3 the remaining documents are in the name of Avala Parisayya, Alamanda Anand (D.1 and D.7) as enjoydars. He deposed that the Survey No.355/1 is an extent of Ac.3.63 cents. The pattadars referred in Exs.B.1 to B.6 are not the plaintiffs in O.S. 5 of 2016. He gave instructions to the counsel for drafting his Chief Affidavit. The names of the vendors under

Ex.A.1 were referred in Ex.B.6 as title holders, but he cannot say whether all the persons referred in Ex.B.6 have executed Ex.A.1. The names of the title holders referred in Ex.B.6 were also referred in settlement fair adangal. He own land adjacent to the disputed land covered under Survey Nos.339, 340 and 341. Till his retirement (superannuation) he has 9 prepared the account copy relating to the lands of the Village. He admitted that the lands covered under Kaviripalli Village and Petlavalsa erstwhile Salur estate. He has no idea as to whose names were shown with regard to the disputed property in the survey settlement operations. He has no knowledge with regard to the possession and enjoyment of the father and forefathers of the defendant, but to his knowledge by the time he assumed time he found the vendors of the plaintiff in possession and enjoyment.

PW3 deposed in his cross-examination that in their Village except himself with the name Avala Lakshmu son of Boddayya there are no other persons. The plaint schedule property is located at Thelagadavalasa village. His land is near to the plaint schedule property, but he cannot say the details of his land. He admitted that he never cultivated or took over the plaint schedule property at any point of time. He further deposed that he is not aware. He deposed that Gummadi Ramulu, Avala Lakshmayya, Avala Anguru, Vasireddy

Appalaswamy, Patti Veerayya, Pedamukulu are residents of their Village and denied the suggestion that alongwith the above persons he affixed his thumb impression on the enquiry report issued by Mandal Surveyor, Makkuva. He do not know whether Alamanda

Venkataramana was also enjoying alongwith Alamanda Anand and others. He do not know whether Alamanda Venkataramana is working as II Class Magistrate, Vizianagaram. He further deposed that he is an advocate by profession. Avala Gourayya is his junior paternal uncle. He admitted that they moved a petition before the Hon'ble Prl. District Judge,

Vizianagaram against Venktaramana who is working as II Class Magistrate at Vizianagaram contending that the II Class magistrate is threatening them. He do not know whether his junior paternal uncle approached the District Court in the enquiry conducted by the Prl.

District Judge, Vizianagaram. He do not know whether the petition was closed on findings

that it is a false petition. He denied the suggestion that he raised false pleas at the influence of Madhusudhanarao who is 1st plaintiff as he is in his hold. He has not perused sale deeds or documents relating to the title of the plaintiff with regard to the schedule property. He deposed that he is not aware as to who were in possession of the plaint schedule property prior to the purchase of 1st plaintiff. 1st plaintiff purchased about 7 years back.

10

PW4 deposed in his cross-examination that he is doing Cultivation. He studied up to

Intermediate. To his knowledge the contents of his Chief Affidavit are the plaintiffs 1 and 2 are enjoying the plaint schedule property since 12 years. His land covered under Survey No.

351/1 it is in the name of Chora Bojjayya and Chora Lakshmu. He cannot say the patta number of the plaintiffs but the Survey No. is 355/1, 351/4 of plaintiffs 1 to 2. He has seen the sale deeds purchased by the 2nd plaintiff from Ramunaidu and the sale deed purchased by the 1st plaintiff from Penta Narayanaswamy. He cannot say how many persons with the name

Ramunaidu and Narayanaswamy are existing in the said Village. He has seen the original sale deeds executed by Ramunaidu and Narayanaswamy at Sub Registrar’s Office. He has not seen the pass books of plaintiffs 1 and 2. He do not know whether pass books were issued or not. There are no disputes or ill feelings between him and the defendants.

PW5 deposed in his cross-examination that he is doing Cultivation. He studied upto 5th class. His land covered under Survey No.358/1 which is towards eastern side of the plaint schedule property. He cannot say the Survey No. of the plaint schedule property it is in the name of Chora Bojjayya and Chora Lakshmu. He has not perused the sale deeds relating to the defendants. They purchased the schedule property from Penta Narayanaswamy. Even prior to the purchase some part of the plaint schedule property was in possession and enjoyment of the plaintiffs.

DW1 admitted in his cross-examination that i.e., Ex.B.1 to B.6 relates the year 1993.

He is an illiterate he cannot say whether the names Penta Narayanaswamy,

Jagannadhaswamy, Tirupathirao, Narayanamma, Narayanarao, Ramarao etc., were mentioned in Ex.B.1 to B.6. He has not gone through the contents of Ex.B.1 to B.6. His brother’s son brought Exs.B.1 to B.6 which were filed in the Court. Vennu Madhusudhanarao has purchased land from Penta people. He deposed that Vennu Madhusudhanarao purchased land covered under Survey No.355/1 from Penta people. He do not know whether 2nd plaintiff purchased land covered under Survey No. 357/4 and he is in possession and enjoyment of the same. He has not gone through the contents of the sale deed filed by the 2nd plaintiff relating to the property covered under Survey No. 357/4. He do not know whether pattadar passbook and title deed was issued in favour of 1st plaintiff with regard to 11 land covered under Survey No.355/1. He do not know whether pattadar passbook and title deed was issued in favour of 2nd plaintiff with regard to the land covered under Survey No.

357/4. He has not seen or know the fact that the plaintiffs have filed adangals showing their possession and enjoyment with regard to the above properties. He deposed that temporary injunction was granted in favour of the plaintiffs in this suit. He admitted that the plaintiffs herein filed a criminal case against them contending that they have violated the injunction order. He has not gone through the contents of the pleadings of the plaintiff in this suit. He denied the suggest that Ex.B.10 does not relate to the plaint schedule property. At some instance the revenue authorities got mentioned the schedule property as zeroyith land and at some instances it was shown as Government land. Pattadar passbook and title deed were not issued in his favour with regard to the schedule property. He has not filed any account copy relating to the schedule property showing his possession and enjoyment over the schedule property. He denied the suggestion that the plaintiffs are in possession and enjoyment of the schedule property even this day, and that the contents of his chief affidavit are all false. He has not filed any record in proof of the plea that they are in possession and enjoyment sine more than 100 years. No ‘D’ patta issued in their favour by the Government.

7. The learned counsel for the defendants 1 to 6 relied upon decisions in the cases of (1) Tagore Township a welfare Association, Hyderabad rep. By its

Secretary and others vs. Md.Khasim and others reported in 2018(3) ALT 112.

(2) B.Sharon, East Godavari District and others vs. P.Rani , West Godavari

District and others reported in 2017(4) ALT 415.

(3) Lalitha Pershad (died) per L.Rs vs. Shyamsunderlal(died) per L.Rs reported in 2009(5) ALT 67 wherein it was held mere marking of documents does not amount to proof of documents.

(4).A.Ramloo and others vs. G.Sreeramachandra Murthy and others reported in 1999(2) ALT 624, by holding that mere producing sale deeds does not establish title of plaintiffs unless they are proved by examining attesting witnesses.

12

8. With due respects of their Lordship observation the ratio applied is applicableto thefacts of the case as the plaiontiffs did not madeany attempt in proof of the document (sale deeds).

9. According to PW1 his lands were not affected from Neelam cyclone, then how the document reflecdts that they were given compensation. Though he denied the suggestion of the opponent’s counsel that on 21.10.2014 he submitted a requisition to the

MRO, Makkuva to measure his land and to handover the same to him; He deposed that he has submited a letter to the MRO concern to get the land measured.

10. According to PW2 who is the VRO who worked as VRO, Petlavalasafrom 1992 to 2012 deposed that except Ex B3 the remaining documents Ex.B1, B2, B4 to B6 are in the name of Arala Parisayya, Alamanda Anand (Defendants1o to 7) as enjoydars. He deposed that he has issuedEx.B4 to B6.

11. Except Ex.A1 and A2, no iota of evidence is filed showing the vendors title over the property. On the other hand, in Ex.A2 the husband of vendee was referred one of the vendor.

12. It is clear admission made by the parties that the defendants are not original owners and the claim made by the some third party claiming title for which OS 5/2016wasfiled against these plaintiffs and defendants but the plaintiff herein did not show them as parties or has filed a comprehensive suit as there is denial of title.

13. PW1 also admitted that the plaintiffs in OS5./2016 seeking declaration for the entire property along with the plaint schedule property and the vendors are not parties in the sale deed executed in favour of plaintiffs in Os5/2016 or their ancestors concerned.

PW1 admitted the fact that except the sale deeds, he has not filed any link document of his vendor. He denied the suggestion that on 21.10.2014 he submitted a requisition to the MRO Makkuva to measure his land and to hand over the same to him and further deposed that he submitted to the MRO concerned to get the land measured as the neighbouring land owner is straining to encroach into his land. And no report was given by the surveyor after measuring the land. He denied the suggestion that 13 the surveyor got measured and submitted his report, mentioning such property is in possession and enjoyment of SC people including the defendants and that as civil matter is pending before the court they are not entitled to hand over possession to him.

14. PW2 is the retired VRO, who issued Ex.B1 to B6 during his tenure. Exs.B1 to B6 are the pattadar pass books and title deeds in OS 5/2016f. The names of the vendors under Ex.A1 were referred in Ex.B1 as title holder, but he cannot say all the persons names which were referred in Ex.B6 as executed Ex.A1.

15. Though Ex.A4 was referred as title deed it was pattadar pass book but not title deed, issued in the name of Vennela Hemalatha. The plaintiffs have failed to prove their possession. Though it is a suit for permanent injunction wherein the title need not be decided. It is clear case of dispute with regard to title to the property. The plaintiffs failed to prove the title, possession and enjoyment of their vendors over the plaint schedule property by the cogent evidence. Except Pws.1 and 2 and Exs.A1 and A2, there is no iota of evidence in support of plaintiff’s case proving. Though title need not be looked into in a suit for injunction the court can go through the title of the parties, when it places vital role.

16. This courts feels that there is no such evidence to prove the possession and enjoyment of the plaintiffs and their vendors. Under the circumstances, it is not fit case for granting permanent injunction as prayed for. Accordingly, the 1st issue is answered against the defendants.

Issue No.2:

17. In the result, this suit is dismissed without costs.

Dictated to Stengrapher-Grade.II transcribed by him, corrected and pronounced

by me in Open Court, this the 7th day of June, 2021.

Sd/- P. Manga Kumari

Senior Civil Judge,

Bobbili.

14

Appendix of Evidence

Witnesses Examined

For Plaintiff: For Defendants:

PW1: V Madusudana Rao DW1: Alamanda Ananda

PW2: G.Gurumurthy Naidu

PW3: Avala Lakshmu

PW4: Chora Vasu

PW4: Chora Srinivasa Rao

Exhibits marked

For the plaintiffs:

Ex.A1: Registered sale deed dated: 19.03.2012.

Ex.A2: Registered sale deed daed: 29.11.2007.

Ex.A3: Pattdar pass book

Ex.A4: Title deed book

Ex.A5: 1B Adangal

Ex.A6: No.3 Adnagal

Ex.A7: 1-B Adangal

Ex.A8: No.3 Adangal

Ex.A9: Certified copy of FIR in Cr.No.81/2015

Ex.A10: Certifiedcopy of Charge sheet in Cr.No.81/2015

Ex.A11: Certified copy of FIR in CR.No.114/2015

Ex.A12: Cerifiedcopy of Charge sheet in Cr.No.114/2015.

For Defendants:

Ex.B.1: No.3 account copy for fasali 1403.

Ex.B.2: No.3 account copy for fasali 1405.

Ex.B.3: No.3 account copy for fasali 1408.

Ex.B.4: No.3 account copy for fasali 1411.

Ex.B.5: No.3 account copy for fasali 14012.

Ex.B.6: No.3 account copy for fasali 14013

Ex.B.7: Certified copy of the valuation certificate issued by the Sub-Registrar Officer, Salur for

Survey Nos.355/1 and 377/4, dated 3.8.2007.

Ex.B.8: Certified copy of the endorsement memo issued by the Tahsildar, Makkuva, dated 8.1.2015.

15

Ex.B.9: Certified copy of the crop damages issued by the state Government through the

Tahsildar under Neelam cyclone to the 1st defendant and the 2nd defendant.

Ex.B.10: Certified copy of the compensation received by the 1st defendant from the Andhra

Bank, Markondaputti on the cyclone effect for Rs.4,000/-

Ex.B.11: Certified copy of the No.3 Adangal for the fasali 1420(2010-11) in favour of the plaintiff dated 25.11.2014.

Sd/- P. Manga Kumari

Senior Civil Judge,

Bobbili

1

IN THE COURT OF SESSIONS: SESSIONS DIVISION: VIZIANAGARAM

BEFORE THE ASSISTANT SESSIONS JUDGE: AT BOBBILI.

Present: P. Manga Kumari, Assistant Sessions Judge, Bobbili.

Thursday, this the 2nd `day of May, 2019

Sessions Case No.27/2015

State represented by Sub Inspector of Name of the Complainant Police, Makkuva Police station .

Name of the AccusedPadala Kamannadora, S/o late Laxmu, aged about 35 years, S.T. Kondadora, Bangaruvalasa Village, Makkuva Mandal, Vizianagaram District.

Punishable under Sec. 306, 509 of Indian ChargesPenal Code.

Plea of the accusedPleaded Not guilty

Found not guilty Finding of the Judge In the result, accused is acquitted under Sentence of the Judgesection 235(1) Cr.P.C., for the offence under Sections 306 and 509 IPC.

The bail bonds of the accused shall be in force for six months from the date of this Judgment as per Sec.437-A(1) Cr.P.C.

The unmarked property if any, are ordered to be returned to the Court of JFCM, Salur, with a direction to destroy the same after expiry of appeal time.

Sri P.V. Krishnarao Prosecution conducted by:

Additional Public Prosecutor

Sri C. Suryanarayana Accused defended by: Advocate for accused

This case coming on 29.04.2019 for final hearing before me in the presence of Sri P.V. Krishnarao, Additional Public Prosecutor for the State and of

Sri C.Suryanarayana, Advocate for accused, and having stood over for consideration to this date, this Court delivered the following:

2

J U D G M E N T

1.The Sub Inspector of Police, Makkuva Police station filed charge sheet against the accused under section 306, 509 IPC in Crime No.26/2014 of

Makkuva Police station.

2.Prosecution case in brief are :-

The Deceased Dandela Seetha, W/o Satyanarayana of Bangaruvalasa

Village is living by doing coolie and after guarding the goats for grazing. She got married about 5 years back with Satyanarayana and was blessed with one male child by name Naga Chaitanya aged about 4 years. They lived happily.

The husband of the deceased is doing tailoring works at Pottangi Village,

Odisha State and used to visit their house weekly twice or thrice by giving an amount of Rs.100/- or 50/- to her. Her neighbors, who did not establish name and address, abused her and insulting her fidelity, due to which she attempted to commit suicide on 27.04.2014 at 5.00 Hrs in the absence of family members by pouring Kerosene on her body and lit fire thereby sustained burn injuries. The neighbor by name Thoudu rushed to the spot, rescued her, and poured water on her body. She received burn injury on her face, legs, chest, both hands, backside and rip her skin. Her Villager Ganga, who is a Asha worker shifted her to Government Hospital, Bobbili by 108 Ambulance. She got first aid by the Medical Officer. Her statement was recorded before Bobbili

Police.

Basing on the report of the injured/deceased, the Sub-inspector of Police,

Makkuva Police Station registered a case in Crime No.26/2014, woman burn and investigated into.

During the course of investigation, on 04.05.2014 Dandela

Satyanarayana husband of the deceased reported that during his absence the accused Padala Kamannadora, S/o Laxmu sexually harassed his wife frequently and insulted her modesty. The same was informed to him by his wife. About 20 3 days back while he was present in his house his wife informed that while she wait to grazing the goats, the accused followed her and subjected signalsand told that he would fulfill his sexual lust with her. For which the deceased denied the desire of the accused. Knowing the same D.Satyanarayana warned the accused about his misbehavior but the accused did not change his attitude and frequently used to harass the deceased for acts. His wife faced much trouble because of the acts of the accused. The husband of the deceased informed the same to the village elders who conducted Panchayat and warned the accused.

On 27.04.2014 at 5.00 Hrs during the absence of Sayanarayana the deceased committed suicide by pouring Kerosene on her body and lit fire. She died in the

Headquarters Hospital, Vizianagaram on 03.05.2014 at 12.00 Hrs.

Basing on the report of Satyanarayana(LW1) the Station House Officer concerned attend the case for U/H woman burn to under section 306, 509 of

Indian Penal Code and investigated.

During the course of investigation the Sub-inspector of Police(LW19) gave a requisition to Tahasildar, Makkuva (LW18) for conducting inquest over the dead body of the deceased, since she died below 7 years of her marriage. The

Tahsildar, Makkuva(LW18) conducted inquest and examined Dondela

Satyanarayana (LW.1), Duvvada Parvathi (LW2), Dandela Sankara Rao(LW3),

Koyyana Surayya (LW4) and Koyyana Ganga(LW5) and recorded their statements. Vemalapalli Jagannadham (LW9), Dandela Ramalingam (LW10) and

Dandela Gowreeswari (LW11) were present at the time of Inquest conducted by the Tahsildar, Makkuva(LW18) and in their presence. In the presence of mediators the Station House Officer, Makkuva(LW19) observed the scene and examined Pedakapu Thowdu (LW6), Bommi Santhinaidu (LW7) and Matcha

Narayanaswamy(LW8). Sri M.Sanjeev Kumar(LW14) is the APFSL, Joint Director issued FSL report. K.Trinadha Rao(LW15) and Raja Laxmi(LW16) conducted postmortem examination over the dead body of the deceased and issued postmortem certificate on 28.06.2014 the Sub-inspector of Police, Makkuva 4

Police Station arrested the accused and sent him for Judicial custody. The

Additional Judicial First Class Magistrate, Bobbili(LW17)recorded Dying

declaration of the deceased. After completion of investigation he filed charge sheet for the offence punishable under section 306, 509 Indian Penal Code.

3.The learned Judicial Magistrate of First Class, Bobbilitook cognizance of the case for the offences under section 306 and 509 Indian Penal Code in PRC 19/2014 and served summons. After receipt of accused summons accused appeared and copies under section 207 Cr.PC were furnished. As the offence under section 306 Indian Penal Code is exclusively triable by Court of Session.

The learned Judicial Magistrate of First Class has committed the case to

Honourable Principal District and Sessions Judge, Vizianagaram who took

cognizance of the case for the offences under section 306 and 509 Indian Penal

Code and numbered as S.C. 27/2015 and made over the case to this Court for disposal as per law.

4.After receipt of the record and on hearing both sides this Court framed charges under section 306 and 509 of Indian Penal Code against the accused for which the accused denied the offence and claimed to be tried. Accordingly trial schedule was fixed.

Prosecution examined Dandela Satyanarayana (LW1) as PW1, Duvvada

Parvathi (LW2) as PW2, Dandela Sankara Rao (LW3) as PW3, Koyyana Surayya (LW4) as PW4, Koyyana Ganga (LW5) as PW5, Pedakapu Thoudu (LW6) as PW6,

Bommi Santhinaidu (LW7) as PW7, Matcha Narayanaswamy (LW8) as PW8,

Vemalapalli Jagannadham (LW9) as PW9, Matcha Bhaskara Rao(LW12) as

PW10, Matcha Narayana (LW13) as PW11 and B.Ravindra Raju, The Sub- inspector of Police, Makkuva Police Station (LW19) was examined as PW12.

Ex.P1 to P19 marked. No material objection marked.

5

After completion of prosecution side accused was examined under section 313 Cr.PC. He denied the offence and stated no defence.

Heard arguments of both sides.

The learned Additional Public Prosecutor argued that due to evil desire of the accused against the deceased he used to harass the deceased and due to unbearable torture she was forced to commit suicide.

The learned Counsel for the defence vehemently argued that there must be evidence showing the direct nexuswith act of accused to commit suicide.

Unless the prosecution proves that there is direct involvement of the accused abating to commit the offence, the offence cannot be said to be completed.

The act of abatement must lead the victim commit suicide. There must be evidence showing that because of the act of the accused the deceased was lead to an opinion that there is no alternative remedy to her except to commit suicide and hence the offence under section 306 is made out.

5. Point for determination:

Whether the prosecution has proved the guilt of the accused for the offence under section 306 and 509 Indian Penal Code beyond reasonable doubt.

To determine whether the prosecution has proved the guilt of the accused beyond reasonable doubt it is fit and proper to go through the evidence adduced by the prosecution.

PW1 is a resident of Bangaruvalasa Village. He deposed that the deceased Seetha is his wife. She died about 4 years back when she met with fire accident while cooking food. He was not present at the time of incident. He was at Pottangi, Odisha State as he is doing tailoring works there. At about 8.15 AM he received phone call from his elder brother Sankara Rao(LW3) who informed about the incident. Immediately, he rushed to the Government

Hospital, Bobbili where the deceased was under treatment. She was under treatment for 6 days and later succumbed he was under impression that the 6

Station House Officer concerned obtained his signature, but he do not know on which matter his signature was obtained.

PW2 deposed that the deceased Seetha is elder her daughter who was given in marriage with her brother. About 4 years back her daughter met with fire accident while she was cooking.

PW9 is one of the inquestdar. She deposed that herself alongwith

Baratamma Netaji, Matcha Nagabhusan, Dandela Ramalingam and Gowriswar stood as inquestdars in the presence Mandal Revenue Officer, Vizianagaram. It was opined that the deceased died due to burn injuries.

PW12 is the Sub Inspector of Police. He deposed that he received

Medical intimation alongwith the statement of victim which was recorded by

Head Constable of Bobbili Town Police Station. He visited the scene of offence which is situated at Bangaruvalasa Village of Makkuva Mandal in a thatched house of victim. On 04.05.2014 PW1 went to the Police Station with a written report basing on the report he altered the FIR under section 306 and 509 IPC.

On 04.05.2014 accordingly the Mandal Revenue Officer conducted inquest over the dead body of the deceased in the presence of inquestidars, blood relatives under the cover of inquest report. On 20.06.2014 accused surrendered before him while he was present in the Police station and he arrested the accused and forwarded him for Judicial remand. Except the above evidence, remaining witnesses whom the prosecution examined did not support the prosecution case.

According to the prosecution PW1 is not a direct witness to the alleged offence. PW1 is the husband of the deceased who is residing Pottangi Village,

Odisha State in view of his avocation. According to the prosecution version the deceased previously informed PW1 with regard to the alleged offence committed by the accused for which he along with some elders chastised the 7 accused but as there was no change, the deceased was vexed and committed suicide.

As per the list of witness appended with the charge sheet Dying

Declaration was recorded by learned Magistrate Smt. K.Usha Kiran (LW17),

Additional Judicial Magistrate of First Class, Bobbili on 28.04.2014. As there is no

incriminating for cause of death or the name of the accused was revealed in the

Dying Declaration the learned Additional Public Prosecutor has given up LW17.

Ex.P13 is the statement recorded by Head Constable, Bobbili. Even in

Ex. P13 the name of the accused was not mentioned except mentioning that due to discourteous and insults made by neighboring person she committed suicide. Moreover at the bottom of the statement the observation of the suicide were mentioned as if the declarent was giving the statement to the Head

Constable name Kondala Rao was mentioned. It was also mentioned that her two hand thumb fingers were burnt hence her leg right toe impression was taken over the statement. Whether the declarent can state the Head Constable name while giving her statement to the Head Constable.

When the statement Ex.P13 was recorded by a Police Officer and when the same was not proved by examining either the author or the scribe of the document, it is not safe to rely solely on the document to convict the accused. Unless there is corroborative evidence in support of Ex.P13 leading the guilt of the accused directly it is not fit and proper to rely on Ex.P13 though it was said to be statement of the deceased.

Further more PW1 who is the husband of the deceased he is not a direct witness. According to him, when he was under depression because of sudden death of his wife he signed on Ex.P12 and the contents were not known to him. It appears what was heard was reduced into writing in Ex.P12. PW1 only admitted Ex.P1 (signature). Even the accused did not state (during 313 Cr.P.C. examination) that PW1 and his men filed this 8 false case against him due to personal grudges or otherwise though he is innocent. It might be due to mistake of fact for which the Court feels that there is no intention to file a false case.

As observed by their lordship in Kaliram Vs. State of Himachal Pradesh, the

Honourable Supreme Court of India.

“Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab V.Jagir Singh, a criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to

judge, the evidence by the yardstick of probabilities, its intrinsic worth and the

animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.

It needs all the same to be re-emphasized that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. As observed on page 3 of the book entitled “The accused” by J.A Courts 1996 Edition , “When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, so that the function of the prosecutor is limited to securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established. In the case of an accused who is innocent, or whose guilt cannot 9 be proved, the public interest and the interest of the accused alike require an acquittal.”

To prove the offence under Section 306 IPC, the requirements as per ingredients of Section 306 IPC are to be proved.

306: Abatement of suicide envisages as follows:-:

“ If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

Abatement as defined under section 107 of Indian Penal Code. The Act means.

“107. Abatement of a thing: A person abets the doing of a thing, who

First – Instigates any person to do that thing: or Secondly – Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly – Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1 : A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2 : Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”

There are catena of Judgments of several High Court’s and Apex Court, with regard to the proof of Section 306 IPC. Mere alleging that she was subjected to cruelty, threat and instigate and humiliate to commit suicide does not constitute the offences. Some of the observations to constitute or to prove the ingredients of Section 306 IPC are referred below.

To constitute abatement the intention and involvement of the accused to 10 aid or instigate the commission of suicide is imperative. Any severance or absence of any of this constituents would militate against this indictment.

Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abatement essential to attract the punitive mandate of Section 306 IPC.

Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant induces of abatement section 306 IPC, thus criminalises the sustained incitement for suicide.

In Gurcharan Singh Vs. State of Punjab 2017 (2) ALT (Crl.) 123 (SC) their Lordships observed that:

In Ambadepudi Parasuramudu Vs. State of Assistant Public Prosecutor, their Lordships observed that: “ The offence under Section 306 IPC contemplates abatement to commit suicide. Every incidence of suicide is not an offence under Section 306 IPC. There must be evidence that the accused abetted the commission of suicide by the deceased. There must be some utterances like an inducement ot the deceased that he/she should commit suicide. Unless there is abatement by way of inducement, the offfence under Section 306 IPC would not be made out.”

In Kishori Lal Vs. State of Madhya Pradesh 2008 (1) ALT (Crl.) 298(SC) their Lordship observed that:- “In cases of alleged abatement of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough”.

In Public Prosecutor and another Vs. M.Krihnaiah and another 2009 (1) ALT (Crl.) 358 (A.P.) their Lordship observed thus :- “It is well settled that mens rea is necessary to constitute instigation. Any amount of abuse or threat or humiliation without the necessary intention, does not amount to instigation. Intentional aiding and instigation need not be reflected by specific words or in any particular form and could be discerned by the conduct also. In V.Adinarayana Vs. State of A.P., this Court relying on the decision of the Apex Court in Shriram Vs. State of U.P. (AIR 1975 SC 75) held that the threatening words used by the accused are not sufficient to constitute instigation. In V.Shankaraiah Vs. State of A.P.. this Court held that the deceased committing suicide on account of 11 cancellation of marriage with A1 after it was settled, does not amount to instigation on the part of the accused, simply because the deceased was humiliated by the accused. This Court further observed that various High Courts have taken a view that merely because a person was feeling insulted or humiliated due to the comments or utterances made by the accused, the accused cannot be said to be guilty of the offence under Section 306 IPC.

Section 509 IPC reads as follows:

Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman.

From the evidence as well as from the settled legal preposition of law, the prosecution had not made out any case in proof of sections 306 and 509 IPC, no iota of evidence is let in to show that the accused made the deceased to commit suicide.

Mere reason that the deceased committed suicide due to discourteous and insults that were faced by the deceased, does not prove the guilt of the accused. Even to prove the said fact, there is no direct evidence. Hence, the accused is entitled for the benefit of doubt.

6.In the result, the accused is acquitted under Section 235 (1), Cr.P.C. for the offence under Section 306 and 509 IPC.

The accused is hereby directed to execute the bond to appear before the appellate Court if any appeal is preferred under Section 437-A Cr.P.C.

7. The bail bonds of the accused shall be in force for six months from the date of this judgment as per Section 437-A (1) Cr.P.C.

8.The unmarked property, if any, is ordered to be returned to the Court of Judicial Magistrate of I Class, Salur, with a direction to destroy the same after expiry of appeal time.

10.Typed to my dictation corrected and pronounced by me in open Court on this the 2nd day of May, 2019.

Sd/- P.Manga Kumari Kumari,

Assistant Sessions Judge, Bobbili.

12

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence: NIL

PW-1: Dandela Satyanarayana

P.W.2: Duvvada Parvathi

P.W.3: Dandela Sankara Rao

P.W.4: Koyyana Surayya

P.W.5: Koyyana Ganga

P.W.6: Pedkapu Thowdu

P.W.7: Bammi Santhi Naiu

P.W.8: Matcha Narayanaswamy

P.W.9: Vemalapalli Jagannadham

PW.10. Matcha Bhaskara Rao

PW.11. Matcha Narayana

PW.12. B.Ravindra Raju, Sub Inspector of Police

For Prosecution: For Defence: NIL

Ex.P.1: Signature of PW1

Ex.P.2: 161 Cr.P.C., statement of PW1.

Ex.P.3: 161 Cr.P.C., statement of PW2.

Ex.P.4: 161 Cr.P.C., statement of PW3.

Ex.P.5: 161 Cr.P.C., statement of PW4.

Ex.P.6: 161 Cr.P.C., statement of PW5.

Ex.P.7: 161 Cr.P.C., statement of PW6.

Ex.P.8: 161 Cr.P.C., statement of PW7.

Ex.P.9: 161 Cr.P.C., statement of PW8.

Ex.P10: Inquest report

Ex.P.11: Signature on scene observation report of PW10

Ex.P.12: Signature as a mediator and scene observation report of PW11

Ex.P13 : Statement of victim

Ex.P14 : Original FIR

Ex.P.15: Rough sketch.

Ex.P.16: Altered FIR.

Ex.P.17: Written report of PW1.

Ex.P.18: Postmortem Certificate

Ex.P.19: Scene observation report.

13

Material Objects Marked

NIL

Sd/- P.Manga Kumari,

Assistant Sessions Judge, Bobbili.

Copy to : The Honourable High Court of Andhra Pradesh, Nelapadu, Amaravathi. (through C.D.) Copy to : The Honourable Principal District and Sessions Judge, Vizianagaram.

Copies to :

1.The Judicial First Class Magistrate, Salur.

2.The Additional Public Prosecutor, Bobbili.

3.The Superintendent of Police, Vizianagaram.

4.The District Collector, Vizianagaram.

5.The Directorate of Prosecutions, Dr.No.24-19-12/A, Durgapuram, Vijayawada.

IN THE COURT OF SESSIONS; SESSIONS DIVISION; VIZIANAGARAM

BEFORE THE ASSISTANT SESSIONS JUDGE: AT BOBBILI.

Present: P.MANGA KUMARI, Assistant Sessions Judge, Bobbili.

Monday, this the 2nd day of May, 2019

Sessions Case No.27/2015

State represented by Sub Name of the Inspector of Police, Makkuva Complainant Police station

Padala Kamannadora, S/o late Laxmu,aged about 35 years, S.T.Kondadora,Bangaruvalasa Name of the Accused Village,MakkuvaMandal, Vizianagaram District.

Date of offence27.04.2014 Bangaruvalasa Village, Makkuva Place of offencemandal

Date of complaint04.05.2014 Date of apprehension28.06.2014 Whether the accused is in jail, On Bail. or, on bail Date of commencement of 11.03.2019 trial Date of closure of trial15.04.2019 Date of sentence or Judgment02.05.2019 Result of enquiryIn the result, the accused is acquitted under Section 235 (1), Cr.P.C. for the offence under Section 306 and 509 IPC.

The accused is hereby directed to execute the bond to appear before the appellate Court if any appeal is preferred under Section 437-A Cr.P.C.

The bail bonds of the accused shall be in force for six months from the date of this judgment as per Section 437-A (1) Cr.P.C.

The unmarked property, if any, is ordered to be returned to the

Court of Judicial Magistrate of I Class, Salur, with a direction to destroy the same after expiry of appeal time.

This case has been committed by the Judicial Magistrate of I Class,

Salur vide PRC No.19/2014 dated 02.01.2015 (Corresponding to Crime

No.26/2014 of Salur Police Station), to the Honourable District and

Sessions Judge’s Court, Vizianagaram, and in turn the Honourable District

and Sessions Judge, Vizianagaram, assigned S.C.No.27/2015 and made over the same to this Court, for disposal according to law. The accused in this case are on bail. Later, on hearing both sides, this Court framed charge under Sections 306, 509 I.P.C., against the Accused. Trial was commenced on 11.03.2019 and was concluded on 15.04.2019.

Arguments of both sides were heard on 18.03.2019 and Judgment was

pronounced on 02.05.2019, acquitting the accused as aforesaid.

Sd/- P.Manga Kumari,

Assistant Sessions Judge, Bobbili.

1

IN THE COURT OF SENIOR CIVIL JUDGE, BOBBILI

Present: P. Manga Kumari,

Senior Civil Judge, Bobbili

Saturday, the 4th day of May, 2019

O.S.No.83/2013

Between :

Gopalasetti Suryanarayana Patrudu … Plaintif

And :

Parisi Venkateswara Rao …Defendant

This suit coming on 18.03.2019 for final hearing before me in the presence of Sri K.Simhachalam, Advocate for the plaintif and of Sri I.Ramesh and Sri P.S.R.Murthy, Advocates for the defendant ; and having stood over for consideration, this court delivered the following :-

J U D G M E N T

I.1)This is a suit filed by the plaintif against the defendant praying the Court to pass a Decree in favour of the plaintif and against the defendant, for specific performance of the agreement of sale dated 28.07.2011 by directing the defendant to execute a registered sale deed in favour of the plaintif relating to the plaint schedule mentioned properties with the costs of registration born by the plaintif, failing which the Court to execute a registered sale deed in favour of the plaintif on behalf of the defendant , or in the alternative, if for any reason the Court does not order for specific performance, the Court may be pleased to order for the refund of the advance amount of Rs.2,70,000/- with interest by defendant to the plaintif and for costs of the suit.

The plaint schedule property consists of two items and is dry land. Item No.1 is an extent of Ac.0.27 cents covered in S.No.240/1, and Item 2

No.2 is an extent of Ac.1.56 ½ cents within the boundaries as mentioned in the schedule and the said property is situated in Bangaru valasa village,

Makkuva Mandal, Vizianagaram District.

2)The case of the plaintif as set forth in the plaint is briefly as follows: The defendant is the absolute owner of the plaint schedule property.

The defendant in need of money for his urgent necessities and to discharge sundry debts of his family ofered to sell the schedule mentioned property to the plaintif at the rate of Rs.1,50,000/- per acre and the plaintif accepted the said proposal of the defendant to purchase the schedule mentioned property at the rate of Rs.1,50,000/- per acre. Thus, there is a full-fledged contract of sale in between the plaintif and the defendant. The schedule mentioned land is in two Lots. The first Lot is an extent of AC.0.27 cents and the second Lot is an extent of Ac.1.56 ½ cents. The total extent of the land is

Ac.1.83 ½ cents and the Total sale price of the land is Rs.2,80,500/-. The plaintif paid Rs.2,70,000/- as advance price(earnest money) towards the total sale price amount of Rs.2,80,000/-. All this transaction happened on 28.07.2011.

The above said transactions were reduced into writing on 28.07.2011 under an instrument titled as “Agreement to sell dated 28.07.2011”. The said agreement to sell was executed by the defendant in favour of the plaintif on 28.07.2011 on an instrument containing two non- judicial stamps worth Rs.10/- each, wherein the defendant agreed to sell the schedule mentioned properties at the rate of Rs.1,50,000/- per acre to the plaintif. The defendant received an advance amount of Rs.2,70,000/- and the defendant agreed to receive the remaining balance amount of the sale consideration at the time of execution of the registered sale deed and the defendant further agreed that he would execute the registered sale deed immediately on demand by the plaintif.

3

The plaintif is always ready and willing to perform his part of the contract at all times and the plaintif has been demanding the defendant many a time to take the balance amount of the total sale consideration, after deducting the advance amount of Rs.2,70,000/-paid by the plaintif to the defendant. The defendant while admitting his liability to execute a registered sale deed in favour of the plaintif after taking the balance sale consideration from the plaintif but postponing the registration of the plaint schedule properties in favour of the plaintif.

The plaintif also got issued a registered lawyer’s notice on 22.03.2013 demanding the defendant to receive the balance of sale consideration from the plaintif and execute a registered sale deed in favour of the plaintif with the registration expenses of the plaintif within one month from the date of receipt of the said registered lawyer’s notice, failing which, the defendant was informed that the plaintif will file a suit for specific performance against him on the basis of the aforesaid agreement to sell

dated 28.07.2011 executed by the defendant in favour of the plaintif, in

which case the defendant has to pay costs to him.

The defendant having received the said notice but did not exhibit his readiness and willingness to execute the requisite registered sale deed in favour of the plaintif relating to the plaint schedule properties but got issued a reply notice dated 01.04.2013 through his advocate with all false and untenable and vexatious allegations stating that the said agreement to sell is a forged one. Hence, the plaintif filed the suit for specific performance of the suit agreement to sell dated 28.07.2011 executed by the defendant in favour of the plaintif.

II.The defendant filed written statement denying the averments contained in the plaint and inter alia contending that he never borrowed amount from the plaintif and did not execute promissory note dated 4 11.08.2010 in favour of the plaintif. He further contended that the signature contained on the promissory note does not belong to him. He stated that his signature was forged and the promissory note was a created. The defendant is in the habit of putting signatures but he never put his signature as “Venkateswara Rao Vralu”. The defendant does not know the witnesses of the promissory note and he also does not know who was the scribe of the promissory note.

The defendant further contends that he migrated from Guntur

District to Bangaru valasa village and he used to do cultivation by taking the lands on lease and with the income he got he is leading his family life. He further contended that the plaintif many times pressurized the defendant to give his lands on lease but the defendant did not agree for the same, and hence, bearing grudge on the defendant, the plaintif with a view to harass the defendant, forged the signature of the defendant and filed the suit against him. He further contended that the plaintif is in the habit of obtaining promissory notes from the Ryots of Makkuva Mandal and the plaintif had already filed about fifty suits on the file of Junior Civil Judge’s

Court, Salur and obtained Decrees. He is in the habit of getting arrest of the persons and recovering the amounts due to him on execution of the decrees.

In the same manner, the plaintif also filed the present suit. He contended that realizing the evil mind of the plaintif, he(defendant) refused to take the lands of the plaintif on lease.

The defendant further contended that the plaintif with the help of his followers, created the promissory note. The defendant reserved his right to file a petition under section 45 of the Indian Evidence Act. On the above grounds, the defendant sought for dismissal of the suit with costs.

5

III.Basing on the above pleadings, the following issues have been settled for trial :

(1)Whether the plaintif is entitled for specific performance of agreement dated 28.07.2011 or not ?

(2)Whether the suit agreement dated 28.07.2011 is true, valid and binding on the Defendant or not?

(3)Whether the plaintif is always ready and willing to perform his part of contract as per the agreement or not?

(4)Whether the plaintif is entitled for the alternative relief of refund of money from the defendant as prayed for or not?

(5)To what relief?

IV.During the course of trial the plaintif got himself examined as

P.W.1. He also examined P.Ws.2 and 3 and got marked Exs.A.1 to A.3 in support of his case. On the other hand, the defendant got himself examined as D.W.1. No documentary evidence has been adduced by the defendant.

Ex.A.1 is the sale agreement dated 28.7.2011 executed by the defendant in favour of the plaintif. Ex.A.2 is the Registered lawyer’s notice

dated 22.3.2013 issued by the plaintif to the defendant. Ex.A.3 is the reply

lawyer’s notice dated 1.4.2013 got issued by the defendant to the plaintif.

2)For better appreciation it is fit and proper to decide issues 1 to 3 conjointly:

ISSUES 1 to 3 : The plaintif in order to substantiate his suit claim, got himself examined as P.W.1. In his evidence he reiterated his case set forth in the plaint. He got marked Ex.A.1 agreement of sale dated 28.07.2011, Ex.A.2 office copy of registered lawyer’s notice dated 22.03.2013 and Ex.A.3 reply lawyer’s notice dated 1.4.2013 issued by the defendant to the plaintif. In his cross-examination, P.W.1 stated that he does not know the native place of the defendant but he has got knowledge 6 that the defendant is a resident of Bangaruvalsa. P.W.1 deposed that he owns

Ac.6.00 of land which is a joint family property and the defendant possess

Ac.1.83 ½ cents of land exclusively. He further stated that Ex.A.1 was executed on 28.07.2011 and the agreed sale consideration is per acre

Rs.1,50,000/-. By the date of agreement it was agreed that the property is an extent of Ac.1.83 ½ cents and an advance of Rs.2,70,000/- was paid on the date of execution of Ex.A.1 to the defendant. The land consists of two bits.

P.W.1 stated that he personally demanded for registration of the schedule property in his favour. He further stated that the defendant is a signatory and that he signed as “Parisa Venkateswara Rao”. The scribe of Ex.A.1 is

Makkuva Srinivasa Rao. The attestors are Parthi Bhavani Sankar Rao and

Gembali Kanaka Durga Rao. P.W.1 admitted that a case was registered by

Makkuva Police for the ofence of call money and further deposed that he had not received any notice from any Court though a case was registered in the year 2017.

3)P.W.2 is Parthi Bhavani Sankara Rao. He is the first attestor to the agreement to sell. He deposed that the defendant executed the suit agreement to sale dated 28.07.2011 in respect of the plaint schedule property at the price of Rs.1,50,000/- per acre which comes to Rs.2,80,500/- for the total extent of Ac.1.83 ½ cents covered by item No.1 and 2 of the plaint schedule. The plaintif paid Rs.2,70,000/- to the defendant by way of an advance and it was agreed by the defendant that he will take the balance of sale price from the plaintif relating to the aforesaid agreement to sell and execute a registered sale deed in favour of the plaintif. He further deposed that he is the first attestor of the said agreement to sell and that the defendant received Rs.2,70,000/- in his presence and that after receipt of the said amount the defendant executed agreement to sell dated 28.7.2011. He further stated that one Gembali Kanaka Durga Rao is the second attestor and 7 one Makkuva Srinivasa Rao is the scribe of the said document. In the cross- examination P.W.2 stated that he studied SSLC and that he is a native of

Makkuva village. He further stated that at the request of the plaintif he came to the Court to give evidence. He deposed that on the date of lending the amount to the defendant, he was present. An agreement was executed in view of the said fact that the consideration was paid at the rate of

Rs.1,50,000/- per acre. The total extent of the land covered under the agreement of sale is Ac.1.80 cents. P.W.2 further deposed that he cannot say it survey number or patta number but it is a dry land. He further stated that along with him one Gembali Kanaka Durga Rao was also present and

Makkuva Srinivasa Rao scribed Ex.A.1. He further stated that for about 2 or 3 similar transactions relating to the plaintif he stood as an attestor and he further added that upon the request of the executants therein, he stood as an attestor. Ex.A.1 consists of two stamp papers worth Rs.20/-. The defendant signed as “Venkateswara Vrulu.” P.W.2 admitted that the plaintif is a resident of their village Makkuva and that he has good acquaintance with him. He denied the suggestion that as he is interested with the plaintif, he is deposing false and that the defendant never availed any amount nor has executed Ex.A.1.

4)P.W.3 is Makkuva Srinivasa Rao who is the scribe of Ex.A.1 (agreement to sall). He also deposed in the same lines of P.W.2. He stated that he is the scribe of Ex.A.1 and that one Patha Bhavani Sankara Rao and one Gembali

Kanaka Durga Rao are the attestors of Ex.A.1. In the cross-examination P.W.3 deposed that he stood as a scribe in one document which was filed at Junior

Civil Judge Court, Salur. As a scribe he got 20 years of experience and might

have scribed in between 200 and 300 documents. He stated that the defendant is a resident of Bangaruvalasa and admitted that himself and the plaintif are residents of Makkuva village. He stated that he scribed the 8 agreement of sale for an amount of Rs.2,70,000/-. The agreed sale consideration is Rs.1,50,000/- per acre. The total extent of land is Ac.1.83 ½ cent s. He stated that he could not recollect whether it is a dry or wet land.

He further stated that Gembali Kanaka Durga Rao and Bhavani Sankar are the attestors of Ex.A.1 which was executed at the house of the plaintif. He further deposed that prior to execution of Ex.A.1, he had not inspected the schedule property. The defendant signed as Venkateswara Vralu in his presence. P.W.2 denied the suggestion that the defendant did not execute

Ex.A.1 and that he is interested with the plaintif and hence he is deposing false. P.W.3 stated that he does not know the native place of the defendant.

5)The defendant in order to prove his contentions got examined himself as D.W.1. In his chief-affidavit he reiterated his contentions put forth in his written statement. In his cross-examination D.W.1 deposed that the signatures upon the written statement appears to be that of him but he could not confirmly say whether the signatures are of his signatures or not.

He does not know whether he got mentioned in his written statement with regard to the agreement of sale and also denied the transaction covered under the agreement of sale. D.W.1 denied the suggestion that he did not give any reply notice to the notice issued by the plaintif. He stated that the schedule property belongs to him but he has not executed any agreement of sale. He did not instruct his counsel while preparing his chief affidavit that the schedule property does not belong to him. He was informed by Makkuva

Police and some others that several criminal and call money cases were filed against the plaintif but he has no documentary proof with regard to the said allegation.

6) The defendant filed I.A. No.742/2018 under sec.45 of Indian

Evidence Act 1872 and the same was allowed. The opinion of the expert was received to this Court. The disputed signature of thedefendant on Ex.A.1 9 was examined by the Hand writing expert with reference to the standard signatures of the defendant on five documents marked as S.1 to S.4.

The admitted signature marked as “S.1” is contained on “Vodambadika

Patram” dated 23.4.2008 executed by Gopalasetty Satyanarayana Patrudu (plaintif herein) and Parisa Vekateswara Rao(defendant herein). Another admitted signature of the defendant marked as “S.2” is contained in the

Receipt issued by the Agricultural Market Committee, Yeemani,

Duggirala(H.Q.) dated 27.6.2008 wherein the name of the Seller is mentioned as “Parisa Venkateswara Rao s/o Tatayya”, and the name of the

Purchaser is mentioned as “Kandupadamm Gurudu Brothers”. Another admitted signature of the defendant marked as S.3 is contained in the

Pattadar Pass Book bearing No.109 wherein the name of the pattadar was mentioned as Parisa Venkateswara Rao. Another admitted signature of the defendant marked as “S.4” is contained in Kisan Credit Card issued by Sri

Visakha Grameena Bank, Srikakulam, in the name of Parisa Venkateswara

Rao (defendant herein).

The disputed signatures of the defendant are marked as Q.1 and Q.2.

Q.1 is the disputed signature of the defendant “Parasi Venkateswara Rao” contained in the first page of Ex.A.1. The disputed signature marked as Q.2 is contained in second page of Ex.A.1 wherein the signature of the defendant was written as “Parasa Venkateswara Rao Vralu”.

As per the observations made in the report of the Expert, it was opined by the Hand Writing Expert (Scientific Officer) that the person who wrote the red enclosed signatures marked as S.1 to S.4 also wrote the red enclosed signatures marked as Q.1 and Q.2”.

Though Expert’s opinion is not a conclusive proof to decide the fact in issue when the direct evidence adduced by the parties does not satisfy to 10 prove the technical aspect the Court safely can rely upon the Expert’s opinion.

7) In fact the defendant did not take appropriate steps to rectify the defect of getting the written statement filed in this suit to be filed in another suit as there is another suit filed by the plaintif against this defendant for recovery of amount based on Promissory note so also vice versa to bring forward that written statement filed in that suit, to this suit but only advanced arguments in that manner in spite of the fact as the learned counsel for plaintif suggested the defendant with regard to the said fact by way of cross examination as there is no specific denial with regard to the agreement of sale. The defendant did not take any proper step as the pleadings are the basis for deciding the fact in issue the Court has no other go except to base on the pleadings.

At this stage the Court has no option except to decide the fact in issue with the record which is available before the Court. The first and foremost point to decide upon whom the burden lies.

Sections 101 of the Indian Evidence Act, reads as follows: Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists.

Section 102 of the Indian Evidence Act, 1872 reads as follows: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Section 103 of Indian Evidence Act 1872 envisages the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is proved by any law that the proof of that fact shall lie on any particular person.

11

Though the defendant did not specifically denied the transaction under Ex.A.1 but he is denying the total transaction specifying suit promissory note alleging the plea of forgery. Whether there is possibility of forging the document is the point to be decided in deciding the fact in issue.

It is settled law that if any question with regard to genuinity of a document arises the contents and proof are to be looked into, to decide the genuinity of the document. Hence the defendant is totally denying the existence of any transactions. The arguments advanced by both parties clearly reveals that there is another suit filed for recovery of amount based on Promissory note. As no documentary proof or record relating to that suit is filed into this Court, this Court cannot go through the merits and demerits of that case, so as to connect the facts to this case as argued by the defendant’s counsel. The conduct of the parties while deciding the fact in issue in cases where the plea of forgery etc., is raised takes a prominent role.

Under Sec.101 and 102 of Indian Evidence Act, 1872, generally the burden lies upon the plaintif as he approached the Court for relief with certain plea.

At the same time if the plaintif discharge the initial burden which is upon him the onus of proof lies upon the defendant, who has to rebut the plaintif’s case, but when the defendant raises certain specific pleas that certain facts do exist the burden of proof lies upon the defendant to prove the existence of certain facts.

The plaintif in proof of his plea got examined P.Ws.1 to 3 to prove the contents of Ex.A.1. The evidence adduced through P.Ws.2 and 3 supporting the plaintif’s case. Further DW.1 deposed in his cross- examination that the signatures on the written statement appears to be that of his signatures but he could not confirmly say whether the signatures is that of his signatures or not. When the defendant is not confirm of his signatures available on the pleadings upon which the whole case of the 12 defendant rest what is the basis for the defendant to deny the signatures on

Ex.A.1. It is the defendant who has to explain the circumstances or cause for his denial of the signatures (writings) on Ex.A.1. When the direct evidence let by the plaintif proves the transaction covered under Ex.A.1, except the evidence of DW.1 there is no rebuttal evidence adduced by the defendant in support of his denial. Further the written statement filed by the defendant does not specifically deny the transaction covered under Ex.A.1. Moreover, the defendant did not opt to examine the Expert when the Expert’s report received to this Court is adverse to the defendant’s plea.

Under the above circumstances, this Court feels that the evidence adduced by the defendant and the contention of forgery is not acceptable but raised only for the sake of this case without any substance.

For all the foregoing discussion, Issues 1 to 3 are answered in favour of the plaintif. In view of the plaintif’s entitlement for specific performance, the plaintif is not entitled for the alternative relief of refund of money from the defendant. Issue No.4 is answered accordingly.

8)ISSUE No.5 : In the result, the suit is decreed with costs and also exemplary costs of Rs.3,000/-(Rupees Three thousand only) payable by the defendant to the plaintif, granting specific performance in favour of the plaintif and against the defendant directing the defendant to execute a registered sale deed in favour of the plaintif in respect of the plaint schedule property in pursuance of the agreement of sale dated 28.07.2011, within three months after receipt of balance of sale consideration under agreement of sale, failing which the plaintif is at liberty to get the registered sale deed at his expenses, on behalf of the defendant through Court, as per the Law.

The plaintif is directed to pay the balance of sale consideration within one month from this day.

13

Issue Show Cause Notice to the Defendant to show cause, on or

before 14.06.2019, as to why he should not be prosecuted under Section 193

of I.P.C. (under Chapter XI of I.P.C.1860) as per Law.

Typed to my dictation, corrected and pronounced by me in open Court, this the 4th day of May, 2019.

Sd/- P.Manga Kumari

SENIOR CIVIL JUDGE

BOBBILI

Appendix of Evidence Witnesses Examined For Plaintif :

P.W.1/ G.Suryana Patrudu P.W.2/P.Bhavani Sankara Rao P.W.3/M.Srinivasa Rao

For Defendant : D.W.1/P.Venkateswara Rao Documents Marked For Plaintif :

Ex.A.1/Sale agreement dated 28.7.2011 executed by the defendant in favour of the plaintif Ex.A.2/Registered Lawyer’s notice dated 22.3.2013

Ex.A.3/Reply notice dated 01.04.2013

For Defendant :

No documentary evidence has been adduced by the defendant.

Sd/- P.Manga Kumari

SENIOR CIVIL JUDGE

BOBBILI

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT PARVATIPURAM

Present:­ P.Manga Kumari,

Senior Civil Judge,Bobbili.

FAC. Senior Civil Judge, Parvatipuram

Friday, this the 13th day of March, 2020

O.S.No.48/2013

Between:­

Alajangi Prasada Rao S/o late Satyam Naidu, aged 44 years, residing at Garugubilli village and Mandal, Vizianagaram District. …. PLAINTIFF A n d :­ 1.Smt Pappala Janakamma w/o late Sriramulu, House hold duties, aged 58 years, residing at Kothaveedhi, Kothavalasa Parvathipuram. 

2.Pappala Visweswara Rao S/o late Sreeramulu, aged 26 years, employee in East Coast Railway, Waltair, C/o Senior Divisional Personnel Office, near DRM complex, Dondaparthi as Senior Token Porter ( T.P) Waltair, Visakhapatnam. District.

…. DEFENDANTS

This suit is coming on 06.03.2020 for final for hearing before me in the presence of

Sri T.Jogarao, Advocate for the plaintiff and of Sri G.Venkatarao, Advocate for the defendants, and after having stood over for consideration, till this day, this court delivered the following:­

J U D G M E N T

This suit is remitted back to this court for fresh disposal as per the orders of the Hon’ble II Addl.District Judge, Parvatipuram in A.S.No.46/2017 dated: 18.04.2019.

Originally the Suit is filed by the plaintiff against the defendant to pass a decree in favour of the plaintiff and against the defendants for recovery of the suit amount of

Rs.2,35,866/­ together with interest and for costs of the suit.

2. Brief facts of the case are: a)The 1st Defendant is the mother of the 2nd Defendant and they are residents ol Kothaveedhi, Kothavalasa within Parvathipuram Municipality and the

Plaintiff is a permanent resident of Garugubilli Village and Mandal. Both the defendants have approached the plaintiff and borrowed an amount of Rs.1,45,000/­ (Rupees one lakh and forty five thousand only ) from the plaintiff on 31­03­2011 for the purpose of discharge of their debts and executed a promissory note on the same day i.e., on 31­03­2011 in favour of the plaintiff in 2 the presence of the attestors and scribe while agreeing to repay the promissory note amount with interest @ 24% PA either to the plaintiff or to his order on demand. Subsequently, the defendants did not make any payment of the amount covered under the above said promissory note. In spite of several demands made by the plaintiff and also through elders to repay the principal and stipulated interest ,the defendant, while admitting their liability have been postponing the said payment on some pretext the other. Finally the plaintiff was constrained to issue a legal notice to the defendant on 03.07.2013 through his advocate to the defendants 1 and 2 by demanding them to repay the suit promissory note amount with interest. The 1st defendant received the same and gave reply with false allegations. Hence, the suit for recovery of the suit amount against the defendants as they are jointly and severally liable to pay to the plaintiff.

2.The 2nd defendant filed written statement which was adopted by 1st defendant specifically denying the material averments of the plaint and further contended that defendants 1 and 2 are Mother and Son and a suitable reply notice also given by the defendants through their

Advocate on 06­07­2013. The defendant No.2 is a central Government employee working in E.Co.

Railway as Senior T.P.(Waltair) and by then both the defendants residing at Bacheli railway

Station Quarters and getting sufficient amount of salary and the defendant No.2 is also maintaining his mother and family members; there fore the defendants never borrowed any amount or single pie from the plaintiff and the said suit promissory note is a rank forged and fabricated with the support of attesters and scribe, That the defendants are well settled and as such there is no necessity for them to borrow amount from the plaintiff much less the amount covered under the alleged promissory note. In order to have a wrongful gain for him and to cause wrongful loss to the defendants, the plaintiff might have concocted the promissory note and filed the suit. There is no cause of action for filing the suit. Hence, the defendants prayed to dismiss the suit with costs.

3. Basing on the above pleadings the following issues have been framed for trial:

1.Whether the defendants 1 and 2 jointly borrowed an amount of Rs.1,45,000/­ from the plaintiff on 31.03.2011 and executed a promissory note in favour of the plaintiff?

3 2.To what relief?

4. To substantiate the case of the plaintiffs, the plaintiff examined himself as P.W.1 and got examined the scribe and attestors as Pws.2 and 3 and got marked Exs.A.1 to A.3. On behalf of the Defendant, defendants 1 and 2 were examined as Dws 1 and 2, but no documents are marked.

Issue No.1:

5.Pws 1 to 3 filed chief affidavits in in support of the plaintiff’s plea. Dws1 and 2 filed chief affidavits in support of the defendant plea.

6.In the cross­examination PW1 deposed that he is having agriculture and she­ buffalos in Garugubilli village. He is having 2 acres of land and cultivating 5 acres of land on lease. Originally, 1st defendant Janakamma is native of Vikrampuram. 2nd defendant studied up to

X Class at Garugubilli and used to reside after 4 houses of his house at Garugubilli, as such he is having acquaintance with defendants 1 & 2. One Chandaka China Rami Naidu who is his neighbour is the husband of Dl's sister­in­law i.e. sister of 1st defendant’s husband by name

Sriramulu. One week prior to suit transaction, 2nd defendant requested for the amounts. After 4 days, 2nd defendant again met him and enquired about amounts, then, he informed to him that he will lend amounts on 31.3.2011 at Parvathipuram. An amount of Rs.1,45,000/­ was amount given which is out of his savings from agriculture and selling of milk. Suit transaction had taken place at Sub­Registrar's Office, Parvathipuram at about 05:00 p.m. At the time of transaction himself Teacher Ravipalli Thulasi das, resident of Parvathipuram, Chandaka Lakshmu Naidu,

Chandaka Rama Rao, Janakamma, Visweswara Rao were present. The denomination of Rs 1,45,000/­ were in Rs 500/­ notes. 2nd defendnt Visweswara Rao himself brought Revenue stamp, promissory note, etc. As per the request of D2, the witnesses came to Parvathipuram from

G.L.Puram along with him. He cannot say the colour of ink with which the promissory note was scribed. He deposed that 2nd defendant working in Railway Department. He cannot say his designation. He deposed that defendants 1 & 2 living together under one roof. He do not know 4 where 2nd defendant had been working. He do not know whether 2nd defendant had been working in Bacheli Railway station as Senior T.P. as on the date of Ex.A.1 promissory note. He denied the suggestion that due to disputes between China Rami Naidu and family of defendants, he fabricated suit promissory note and filed the suit. The defendants did not affix date under their signatures and promissory note. He did not receive reply notice.

7.PW2 deposed in his evidence that Defendants 1 and 2 have been residing in

Kothavalasa for last 15 years. PW1 and himself residing in the same lane and their lands situated side by side. There is no relationship between him and PW1, except the suit transaction, the defendants 1 and 2 did not borrow any amounts from anyone either prior to suit transaction and subsequent to the suit transaction and he did not act as witness except the suit transaction. 2nd defendant represented that he was working in Vizag. The suit transaction taken place at about4 years back and he cannot say the date of suit transaction.

The suit transaction taken place at Sub registrar’s office. Rs.1,45,000/­ were given to defendants 1 and 2, he did not count the amount but the person who lent counted it. The promissory note is a printed proforma and 2nd defendant brought it. R1/­ worth revenue stamps (four in number were affixed. The second attestor is his cousin. The father of 2nd defendant is brother of his mother. He has no disputes with 2nd defendant. 2nd defendant has no lands. Now he came to know that 2nd defendant was transferred to Odissa State. He do not know present working place of 2nd defendant. He do not know whether 2nd defendant was allotted house at railway quarters.

8.PW3 deposed in his cross­examination that he has no disputes with local persons where he worked as Teacher. He did not execute any promissory notes while he was working at Garugubilli. The suit transaction had taken place at sub registrar’s office, Parvatipuram at about 05.00 p.m. Four revenue stamps were affixed on the promissory note. 

9.DW1 in her cross­examination deposed that earlier, she used to reside at Kirandal of

Chattishgad. Her son got employment 10 years back. Her native place is Jagannadhapuram of

Parvathipuram. About 20 years back, while her husband was alive, she also resided at Kothavalasa 5 of Parvathipuram. She deposed that while she was resided at Kothavalasa the plaintiff herein sent lawyer notice and she received the same. She sent reply on her behalf only, but, not on behalf of her son. He received Suit Summons at Chattishgad. She further deposed that she came to Kothavalasa to visit her daughter, then, she received suit summons. She received the summons on behalf of her son also. She sent reply notice denying the borrowing of amounts. D.2 is her only son. Chandaka Thavitamma is sister of her husband and she was given in marriage to one Chandaka Rami Naidu of Garugubilli village. Thavitamma have 5 sons by name Simhachalam,

Lakshmu Naidu, Sankara Rao, Appala naidu & Krishna. She has no disputes with Thavitamma or her children. Her daughter was given In marriage to 3rd son of Thavitamma by name Sankara Rao.

For last 5 years, she did not visit her, prior to it, she used to visit her house. She deposed that her son studied from 6th to 10th while staying at the house of Tavitamma. She deposed that one of the attestors by name Chandaka Lakshmu Naidu is her nephew. 

10.DW2 in his cross­examination deposed that he studied VI to X Class in Garuaubilli village from 1997 to 2002 by staying in the house of his maternal aunt. He resided from 2002 to 2005 along with his mother at Kothavalasa of Parvathipuram. His mother received Lawyer Notice which was addressed to him to the address of his sister. He sent reply notice from Kothavalasa address of Parvathipuram. He deposed that his mother and himself sent the reply notice and their addresses were mentioned in the reply notice. He did not mention in his reply notice that the

Lawyer Notice was sent to address of his sister and she received it and handed­over to his mother.

He did not borrow any amounts for plaintiff and signature on Ex.A.1 promissory note was not that of him. At the time furnishing the particulars for preparation of Written Statement, his mother and himself were present. They are also denying the thumb impression of his mother. Chandaka

Lakshmu Naidu is brother of the Chandaka Sankara Rao, He has no disputes with Chandaka

Sankara Rao or Lakshmu Naidu. He do not know whether one Prasada Rao (PW.1) has been residing 2 or 3 houses after Sankara Rao's house, though he resided in the same house for 6 years.

He is having acquaintance with one Ravupalli ThuIasi Das scribe Ex.A.1, who is colleague of

Sankara Rao. 

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11. There are no disputes or ill­feelings between both parties and the attestors are distant relations of the defendants. Even there is no plea/contention that there are ill­feelings between them. The evidence of defendants 1 and 2 clearly reveals that there are no disputes or ill feelings between them. There is no specific reason assigned or pleaded the reason to foist a false case by the plaintiff against the defendants fabricating a false document by forgoing the signatures of the defendant. Except the said contention no iota of evidence is let in to prove that the defendants are having true and genuine case or throw suspicion upon the plaintiff’s case. Basing on the oral and documentary evidence let in by both the parties. This court passed the decree earlier on 24.7.2017 aggrieved by the same, the defendant preferred appeal in A.S.No.46/2017 on the file of Hon’ble II Addl. District Court, Parvathipuram and the same was remitted (remanded) to this Court for fresh disposal with a direction to this Court to summon the station

Superintendent, Bacheli Railway station, E.Co. Railway for cause production of

Attendance/Muster roll of the appellant No.2 viz., Pappala Viswesra Rao (Senior T.P) relating to the dates: 30.03.2011 and 02.04.2011 and for giving evidence either personally or through his subordinates on payment of necessary process.

12.As per the orders of the Hon’ble Appellate Court this court issued summons station Superintendent, Bacheli Railway station, E.Co. Railway for cause production of

Attendance/Muster roll of the appellant No.2 viz., Pappala Viswesra Rao (Senior T.P) relating to the dates: 30.03.2011 and 02.04.2011 and for giving evidence either personally or through his subordinates but the said official did not turn up even though the summons were served on him and later show cause notice was also issued but the defendant's counsel filed memo reporting that the defendant not showing interest to prosecute the matter inspite of intimating the party through phone. Hence, reporting no objection to proceed with the next step. Hence, there is no further evidence from both sides (after the matter is remanded) on hearing both sides proceeded for pronouncing Judgment.

13.Though the direction of the Hon’ble II Addl.District Judge, Parvatipuram was complied by this court by issuing summons, no steps were taken to call for the record and to 7 adduce the evidence. 

14.The plaintiff has discharged the initial burden by examining Pws.2 and 3 who are attestor and scribe of Ex.A1 promissory note. Nothing could be elicited to discredit their testimony, of the witnesses or impeach their credibility. The oral and documentary evidence adduced by the plaintiff suffice to prove the suit claim. Further there is no specific pleading with regard to alibi. Though an opportunity was given to the party to prove their contention, the defendants failed to take further steps and have not availed the opportunity.

The evidence of DWs1 and 2 is does not throw any suspicion upon the plaintiffs case or the evidence of Pws 1 to 3 in support of the defence plea. Hence, the oral and documentary evidence adduced by the plaintiff coupled with Ex.A1 to Ex.A3 proved the suit claim, hence, the plaintiff is entitled to recover the suit amount as prayed for. Hence, the 1st issue is answered in favour of the plaintiff and against the defendants.

Issue No.2

15.In the result, the suit is decreed with costs against the defendants 1 and 2 for an amount of Rs.2,35,866/­(Rupees Two Lakh, Thirty five thousand, Eight Hundred and Sixty Six only) with subsequent interest at the rate of 12% per annum from the date of suit till the date of decree and thereafter at the rate of 6% per annum from the date of decree till the date of realization on the principal amount of Rs.1,45,000/­. (Rupees one lakh and forty five thousand only).

Typed to my dictation by the Stenographer Gr.II, corrected and pronounced by me in open court on this the 13th day of March, 2020.

Sd/­ P. Manga Kumari

Senior Civil Judge,Bobbili

FAC.Senior Civil Judge Parvatipuram.

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Appenedix of evidence

Witnesses examined

For plaintiff: For Defendant: 

PW1:Alajangi PrasadaraoDW1: Pappala Janakamma

PW2:Chandaka LaksmunaiduDW2: Pappala Visweswararao.

PW3: Ravipalli Tulasidas.

Exhibits marked

For plaintiff:For Defendant: Nil.

Ex.A1:Promissory note dated:31.03.2011 for Rs.1,45,000/­executed by the defendant in favour of plaintiff.

Ex.A2: Lawyer notice dt: 03.07.2013.

Ex.A3: Reply notice dt: 06.07.2013.

Sd/­ P. Manga Kumari

Senior Civil Judge, Bobbili

FAC.Senior Civil Judge Parvatipuram.

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