Smt P Sai Sudha

1 PJCJ -cum-MM COURT, VSP

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0 IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM -

METROPOLITAN MAGISTRATE, SPL COURT FOR TRIAL OF OFFENCES UNDER AP

LAND GRABBING (PROHIBITION) ACT , VISAKHAPATNAM

Present: Smt.P.Sai Sudha

Principal Junior Civil Judge-cum

Metropolitan Magistrate, Special Judge,spl court for trial of offences under A.P Land Grabbing (Prohibition) Act,Visakhapatnam.

Tuesday, This the 4 th Day of December, 2018.

C.C.No. 23/2018

BETWEEN: The State Represented by the Sub-Inspector of Police,Padmanabham Police Station, Visakhapatnam.

...Complainant/State

And:

1. Dendeti Chinna Appanna, S/o. Appanna, age 37 years, Caste by SC, Bandevapuram Village, Padmanabham Mandal, Visakhapatnam City.

2.Dendeti Appanna @ David Raju, S/o. Appanna, S/o.Appanna, aged 37 years, caste by SC, Bandevupuram Village, Padmanabham Mandal, Visakhapatnam. ….Accused/A1 & A2

This case has come up on 27.11.2018 for final hearing before me in the presence of Ms. P.Suseela, Learned Asst. Public Prosecutor, for the State-Complainant and of Sri.Saka Rajendra Prasad and Sri.B.D.Chandra Sekhar, Advocates for Accused and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.The Station House Officer, Padmanabham Police Station, filed charge sheet against the accused in Crime No. 30/2017 of Padmanabham P.S., for the offences

U/s. 447, 427 , 341 and 506(2) of Indian Penal Code for short (I.P.C) and Sections 4 2 PJCJ -cum-MM COURT, VSP

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& 5 of Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (for short “A.P.L.G

Act”).

2. The case of the prosecution, in brief, is as fallows :

The property in S.No.107/9 of Bandevpuram village in an extent of Ac.0.36 cents belongs to one Sagi Ramesh Varma who inherited the property from his ancestors. A1 occupied the Government land situated adjacent to the property of Sagi

Ramesh Varma and on 25.12.2016, he ploughed the Government land using a JCB.

A1 has entered unlawfully into the land of the defacto complainant and removed palmyrah trees and occupied the land. The incident was informed to the defacto complainant by one Prakash and on 26.12.2016, he noticed that palmyrah trees were removed in his land and it was occupied. Immediately the defacto complainant fixed the boundaries to his property and planted mango saplings. On the evening of the same day, A1 came there and removed saplings. When defacto complainant questioned him, A1 abused him in a filthy language for which the defacto complainant lodged a report with the police and the same is registered in Crime

No.123/2016 for the offences 447,425,506(2) I.P.C and after conducting the survey, the Tahasildar has submitted a report stating that A1 occupied land in an extent of

Ac.0.02 cents belonging to the defacto complainant. Again on 16.03.2017, when the defacto complainant went to his property for planting saplings, A1 came there and removed 13 saplings and labourers were present then. On 20.03.2017, at about 11 am, when the defacto complainant went to the disputed land, for planting saplings, with the assistance of one G.Peddi Errinaidu and Sagi Krishna Murthy Raju, A1 and A2 came there and threatened defacto complainant to kill if the saplings are taken from 3 PJCJ -cum-MM COURT, VSP

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the auto and planted and also to file a case under SC & ST Atrocities Act. Hence, the defacto complainant lodged a report to the police. Basing on the report,the police registered a case and issued First Information Report. During investigation, statements of witnesses are recorded, the scene of offence was observed and rough sketch was prepared. After completion of investigation, charge sheet is filed against accused for the offences referred above.

3.On appearance of accused before the Court, copies of documents were furnished to them as required under Section 207 of Cr.P.C.

4. After hearing both sides and perusing the documents filed along with charge sheet and being satisfied that there is a prima facie case against the accused, charges were framed against them for the offences under Sections 447, 425 and 506(2) r/w 34

I.P.C, and Sections 4 & 5 of A.P. Land Grabbing (Prohibition) Act, read over and explained to them in Telugu. They pleaded not guilty and claimed to be tried.

5. In order to prove its case, the prosecution has examined PWs 1 to 12 and

Exs.P1 to P17 were marked through them.

6.After completion of prosecution evidence, incriminating material appearing in the evidence of the prosecution witnesses was read over and explained to accused in

Telugu. They denied it totally and reported no defence evidence. But, later a petition was filed and DW1 was examined and Exs.D1 and D2 are marked.

7.Heard the learned Assistant Public Prosecutor who argued that the evidence adduced by the prosecution clearly establishes the A1 occupied the property of the defacto complainant and A1 and A2 have trespassed into the land and threatened them and hence prayed to convict the accused and pass sentence accordingly.

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8.Per contra, the learned counsel for the accused argued that the case is registered on account of political rivalry between the brother of the defacto complainant, who bore grudge against the accused. He further argued that the defacto complainant failed to show that he is the owner of the property and also that the accused is in possession of the disputed land. He further argued that the accused were acquitted in the case lodged by the defacto complainant. He further argued that the procedure provided under the enactment is not followed and hence the accused are liable to be acquitted.

He placed reliance on case laws: Uppari Muthamma and others Vs. Special Tribunal,

L.G.C, Basheerbagh and others, 1997(2) APLJ 439; (2) Hindustan Aeronautics

Employees Co-operative Housing Society Limited, Hyderabad VS. Special Court constituted under A.P.L.G.Act, Hyderabad, 2004(6) ALT 772.

9.Now the points that arises for consideration is:

(i) Whether prosecution has established the guilt of A1 & A2 for the offences under Sections 447, 425 and 506(2) r/w 34 I.P.C, and Sections 4 & 5 of of A.P.L.G Act beyond all reasonable doubt ?

10. POINT NO:(i):

Before proceeding further, this Court feels it appropriate to refer to the

witnesses examined by the prosecution and documents marked through them.

PW1 is the de-facto complainant, PW2,PW3 and PW4 are eye witnesses, PW6 is the tractor driver, PW5 & PW7 are elders, PW8 is the mediator, PW9 is the

Surveyor, PW10 is Deputy Tahasildar and PW11 is Tahasildar of Padmanabham

Mandal and PW12 is the investigation Officer. Ex.P1 is Computerized copy of 1B,

Ex.P2 is the report dt. 25.03.2017, Ex.P3 is Section 161(3) Cr.P.C statement of PW6,

Ex.P4 is Mediators report, Ex.P5 is sketch along with the report, Ex.P6 is attested 5 PJCJ -cum-MM COURT, VSP

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copy of pattadar pass book, Ex.P7 is Letter addressed by the SHO, Padmanabham

P.S.,Ex.P8 is Letter addressed to the Station House Officer, Padmanabham, Ex.P9 is

Letter addressed by the SHO, Padmanabham P.S. dt. 19.05.2017, Ex.P10 is the letter.

Ex.P11 is online copy of 1B register, Ex.P12 is First Information Report, Ex.P13 is

Rough sketch of scene of offence, Ex.P14 is Photographs, Ex.P15 letter addressed to the Tahasildar, Ex.P16 is letter dt. 27.05.2017 and Ex.P17 is proceedings dt.

25.09.2017

11.It is the case of the prosecution that the property in S.No.107/9 of

Bandevpuram village in an extent of Ac.0.36 cents which is adjacent to the

Government land belongs to the defacto complainant. It is further case of the prosecution that A1 occupied the Government land and levelled the same and further

A1 occupied the property of the defacto complainant by removing palmyrah trees. It is further case of the prosecution that when the defacto complainant planted saplings,

A1 removed them and threatened the defacto complainant with dire consequences.

12.In order to prove that the property in S.No.107/9 of Bandevpuram village in an extent of Ac.0.36 cents belongs to defacto complainant, the prosecution has examined him as PW1 and Ex.P1 Computerized copy of 1B are marked through him. The evidence of PW1, the defacto complainant, is to the effect that he owns the property in S.No.107/9 of Bandevpuram village in an extent of Ac.0.36 cents and it is his ancestral property and pattadar passbook and adangal are in his name. In his cross- examination, it is suggested to him that he is not the owner of the disputed property and that he along with his brother S.Krishnam Raju occupied the property. It is also suggested that in order to occupy the Government land adjacent to the disputed land, 6 PJCJ -cum-MM COURT, VSP

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he lodged the report against the accused. He denied these suggestions in toto. A perusal of Ex.P1 which is computerized copy of 1B shows that the property in

S.No.107/9 of Bandevpuram village in an extent of Ac.0.36 cents is in the name of

PW1. Further Exs. P6 attested copy of Pattadar passbook, Ex.P11 online copy of the 1B register show that the property in S.No.107/9 of Bandevpuram village in an extent of Ac.0.36 cents is in the name of Sagi Ramesh Varma and it is ancestral property.

Therefore, the contention of the learned defense counsel that the property does not belong to PW1 is brushed aside.

13.In order to prove the incident on 16.03.2017, on which A1 is said to have removed the saplings planted by PW1/Sagi Ramesh Varma, the prosecution has examined the witnesses referred to in Ex.P2 report i.e., Bangari Pydi Raju as PW2,

Nimmakayala Narisinga Rao as PW3 and Potunuru Appala Raju as PW4.

The evidence of PW1 is to the effect that on 16.03.2017, when he planted the saplings in his property, A1 questioned him and abused him in a filthy language and further when he went to the disputed property on 20.03.2017 along with the elders

G.Peddi Errinaidu and Sagi Krishna Murthy Raju, A1 and A2 threatened him with dire consequences. This version of PW1 is well corroborated by the evidence of Pws 2 to 4. The evidence of PW2 is to the effect that on one day he was called by PW1 for planting the saplings and when himself, PW3 and PW4 went there, A1 questioned him and asked him to remove the saplings. He further stated that A1 himself removed the saplings. His evidence is further to the effect that after 6 days from the date of that incident, when they went to the disputed land and carried mango saplings in an auto,

A1 and A2 obstructed them and threatened them with dire consequences. During his 7 PJCJ -cum-MM COURT, VSP

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cross-examination, suggestions were put to him that the property near the hill is allotted to the people of weaker sections and that he is deposing at the behest of PW1 and he denied those suggestions. The evidence of PW3 and PW4 is more or less in similar lines of PW2 with regard to the act of A1 removing the saplings and the act of

A1 and A2 threatening the defacto complainant and others with dire consequences.

14.G.Peddi Errinaidu and Sagi Krishna Murthy Raju were examined as PW5 and

PW7 to show that they accompanied PW1 to the disputed land and then A1 and A2 obstructed them. The evidence of PW5/Sagi Krishna Murthy Raju is to the effect that on 20.03.2017, PW1 came to Bandevpuram village as he came to know that the accused/A1 is trying to occupy his property and requested him to accompany him. He further stated that at about 11 am, himself and G.Peddi Errinaidu/PW7 went there and while the labourers who were engaged to plant saplings were about to carry out their work, A1 and A2 came there and asked them not to take saplings from the auto and threatened them. In his cross-examination, it is suggested to him that on account of political rivalry, they have lodged the report against the accused even though no one occupied the property of PW1. He denied the suggestion that Government has assigned land to the weaker sections in their village and as A1 is representing the weaker sections, they have lodged the report against A1. He admitted that PW1 is in possession of Ac.0.36 cents of land as on that day.

15.The evidence of PW7/ G.Peddi Errinaidu is to the effect that PW1 owns land in

Bandevpuram village and he requested him to settle the dispute with A1 regarding removal of mango saplings. His evidence is further to the effect that himself and PW5 went to the disputed land at about 9.30 am and he advised the accused to enjoy his 8 PJCJ -cum-MM COURT, VSP

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property and not to interfere with the possession of others property. He further stated that later he received a phone call that the accused did not allow PW1 to plant the saplings. In his cross-examination, suggestions were put to him that PW1 and PW5 asked him to come to the disputed land as they intended to lodge a false report and he denied it. He denied the suggestion that as the accused are supporters of rival party, this case is foisted against them.

16.A careful scrutiny of the evidence of Pws 2 to 4, who were engaged to plant saplings, and the evidence of PW5 and PW7 makes it explicitly clear that when PW1 tried to plant saplings in his land, A1 removed those saplings and further A1 and A2 threatened PW1 with dire consequences. Though PW6, who is the tractor driver deposed that he left the place as directed by A1 and left the water in the adjacent land, his evidence with regard to the A1 entering into the land of PW1 can be taken into consideration. Therefore, in view of the above discussed evidence, it is clinching that

A1 and A2 entered in to the land of PW1 and threatened him with dire consequences and thereby the charges against the accused for the offences under Sections 447, 425 and 506(2) r/w 34 I.P.C are held to be proved.

17.With regard to the charges levelled against A1 & A2 for the offences under

Sections 4 and 5 of A.P.Land Grabbing Prohibition Act, 1982, the learned counsel for the accused vehemently argued that the prosecution has to show that the accused are in possession of the land and mere attempt to grab the land is not sufficient. In support of his contention, he placed strong reliance on Hindustan Aeronautics Employees Co- operative Housing Society Limited, Hyderabad VS. Special Court constituted under

A.P.L.G.Act, Hyderabad, 2004(6) ALT 772, wherein it was held at paragraph number 9 PJCJ -cum-MM COURT, VSP

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81 that “an attempt to grab land cannot be treated as an act of land grabbing, as defined under Section 2(e) of the Act and that Special Court or Special Tribunal constituted there under do not have jurisdiction to entertain matters based on the allegations of attempts to grab the land”. But, in the case on hand, it is the case of the prosecution that A1 grabbed the land in an extent of Ac.0.02 cents belonging to the defacto complainant.

17.In order to prove the same, the prosecution has examined the the Surveyor, who conducted the survey as PW9 and Deputy Tahasildar and the Tahasildar of

Padmanabham Mandal as PW10 and PW11, who issued certified copies of documents relating to the disputed property. The evidence of PW9 /P.S.Bhavan, Surveyor is to the effect that in the month of April, 2017, the Tahasildar, Padmanabham has received a letter from the Inspector of Police, Padnabham P.S stating that there is a dispute with regard to the land in S.No.107/9 of Bandevpuram village and that he visited the disputed land and came to the conclusion that the land belongs to Sagi Ramesh

Varma/PW1 on the basis of field measurement book and submitted his report i.e.,

Ex.P5 along with the sketch to the Tahasildar. In his cross-examination, he stated that he conducted the survey as per the instructions of the Assistant Director, Survey &

Land records. He stated that it is not specifically mentioned in the report as to the manner in which the accused have occupied the land. A perusal of Ex.P5 report shows that on issuing notices to Sagi Ramesh Varma/PW1 and Dendeti China Appanna/A1, the Surveyor inspected the land after conducting the survey, it is found that A1 occupied land in an extent of Ac.0.02 cents, in respect of which pattadar passbook is issued in the name of PW1 and further A1 has occupied the Government land in 10 PJCJ -cum-MM COURT, VSP

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S.No.98 which is situated towards southern side of the property of PW1. The evidence of PW9 is corroborated by the evidence of PW10, who issued certified copies of survey report, FMB sketch and pattadar passbook. Though it is argued by the defense counsel that the prosecution did not explain as to how the property registered in the name of Chitturi Chellayamma devolved on PW1, the suggestions put to PW5 that

PW1 is in possession of the disputed land itself shows that the land belongs to PW1.

Further, it is not the defense taken by the A1 that the disputed land belongs to him.

18. The evidence of PW11 /Smt.Sumati Bai,Tahasildar of Padmanabham is to the effect that on 12.04.2017, on receiving a requisition from the S.H.O of Padma

Nabham P.S to fix the boundaries of land in S.No.107/9 of Bandevpuram Village by surveying the land, she orally instructed the Revenue inspector and the surveyor to inspect the land and fix the boundaries. Her evidence is further to the effect that after conducting the survey, the surveyor has prepared his report on 08.05.2017 and she received the same on 25.05.2017and it is noticed that the land abutting to the property in S.No.107/9 belongs to the Government which is in S.No.98 and that the A1 encroached into a part of the Government land in S.No.98 of Bandevpuram village which is abutting the private land in S.No.107/9. Her evidence is further to the effect that immediately, they have taken steps for taking encroached part of the Government land which is occupied by the A1 i.e., land in an extent Ac.0.02 cents of Zeroth land and they have erected a board in the Government land. In her cross-examination formal suggestions were put to her and nothing significant could be elicited to discredit her testimony.

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19.The evidence of PW12, the Investigating Officer relates to the registration of the case, recording the statements of the witnesses and correspondence done by him for securing information with regard to the ownership of the disputed land. In his cross-examination, suggestions were put about the result in the case lodged by PW1 and about the report lodged by A1 against PW1 under SC & ST Atrocities Act. On the side of accused, A1 was examined as DW1 and certified copy of calender and judgment in C.C.No.42/2017 on the file of IV MM Court, Bheemunipatnam and

Photostat copy of FIR in Cr.No.124/2016 of Padmanabham P.S are marked through him. Though these documents marked through DW1, it is relevant only to the extent that PW1 has lodged a report against the accused.

20.The learned defense counsel argued that the Court after taking cognizance has to issue notice in Form II-A by publishing it in the Andhra Pradesh Gazette as provided under A.P. Land Grabbing (Prohibition) Rules, 1988. But, as per Sec.8 of

A.P.L.G Act, 1982 which provides for the procedure and powers of Special Courts, the Special Court is the Competent Authority to determine the question of title and ownership to, or lawful possession of any land grabbed and the decision of the Special

Court shall be final. It means that the Special Court is a Civil Court having original as well as Appellate jurisdiction having all the trappings of a Civil Court and also a

Criminal Court having powers of the Court of Sessions to which the provisions of the

Cod of Civil Procedure, the A.P.Civil Courts Act and the Code of Criminal Procedure apply. As per Section.7, the Government by notification has to constitute a Special

Court, which shall consist of a Chairman and four other members, to be appointed by the Government. But, Section 11 of A.P.L.G Act, provides that “every offence 12 PJCJ -cum-MM COURT, VSP

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punishable under this Act, shall be tried by a Magistrate of the First Class, specially empowered by the Government in this behalf”. As this Court is empowered by the

Government only to try the offences punishable under A.P.L.G Act, it cannot be said that it is vested with powers that can be exercised by a Special Court as envisaged under Section 8 of A.P.L.G Act. It is for this reason, Section 12 of A.P.L.G.Act, mandates the previous sanction of the Special Tribunal for taking cognizance by this

Court. Admittedly, in the case on hand, the prosecution has obtained sanction proceedings from the Hon’ble Special Tribunal under Ex.P17. Therefore, This Court finds no force in the contention of learned defense counsel.

21. The cumulative effect of the evidence of PW1, PW9 coupled with Ex.P5 report shows that A1 grabbed the property of the defacto complainant in an extent of Ac.0.02 cents and thereby A1 committed the offences under Sections 4 & 5 of A.P.L.G Act.

As per Section 10 of A.P.L.G Act, when a person has established his title in respect of the property, it shall be presumed that the person who is alleged to have grabbed the land is a land grabber and the burden of proving that the land has not been grabbed by him shall be on such person. In the case on hand, the defacto complainant i.e., PW1 has established that he is owner of the property in S.No.107/9 of Bandevpuram village and the evidence of PW10 and PW11 show that A1 has grabbed the land. When the prosecution has established the title of the defacto complainant, the burden shifts to

A1 to show that he did not grab the land. But, A1 did not adduce any evidence to rebut the presumption. Therefore, it can be safely concluded that the prosecution has established the guilt of A1 for the offences under Sections 4 & 5 of A.P.L.G Act beyond all reasonable doubt. Further the prosecution has established that A1 and A2 13 PJCJ -cum-MM COURT, VSP

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have trespassed into the land and threatened defacto complainant and thereby committed the offences under Sections 447, 425 and 506(2) of I.P.C. Therefore, the charges against A1 for the offences under Sections 4 & 5 of A.P.L.G Act are held to be proved. It is not stated by the defacto complainant in the report as well as in the evidence that A2 grabbed the property of the defacto complainant. Therefore, the charges against A2 for the offences under Sections 4 & 5 of A.P.L.G Act are held to be not proved.

22.In the result, A1 and A2 are found guilty for the offences under Sections 447, 425 and 506(2) of I.P.C. Further, A1 is found guilty for the offences under Sections 4 & 5 of A.P.L.G Act, and A2 is found not guilty for the offences under Sections 4 & 5 of A.P.L.G Act Hence, they are convicted U/s. 248(2) Cr.P.C.

Dictated to my Personal Assistant, transcribed by her, corrected and pronounced by me in

the open court this the4 th day of December, 2018.

Principal Junior Civil Judge-cum-

Metropolitan Magistrate, Spl Court for trial of offences Under Ap Land Grabbing (PROHIBITION) Act, Visakhapatnam

23.Heard the accused/A1 with regard to the quantum of sentence to be imposed against him. He submitted that he has to look after his family and if he is improsined, they will suffer hardship and hence requested to take a lenient view. In view of the nature of offence, this Court holds that lenient view cannot be taken and section 360

Cr.P.C or the provisions of Probation of Offenders Act cannot be invoked. Therefore,

A1 is sentenced to undergo simple imprisionment for a period of 6 months and to pay fine of Rs.200/-for the offence under Section 4 of A.P.L.G.Act and further to undergo simple imprisionment for a period of three years and to pay fine of Rs.500/- for the 14 PJCJ -cum-MM COURT, VSP

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offence under Section 5 of A.P.L.G.Act. A1 is further sentenced to pay a fine of

Rs.300/- for the offence under Section 447 of I.P.C and to pay fine of Rs. 500/- for the offence under Section 425 I.P.C and further to undergo simple imprisionment for a period of one year for the offence under Section 506(2) I.P.C. In default of payment of fine, A1 shall further undergo simple imprisionment for a period of one month. All the sentences shall run concurrently. The remand period undergone by A1 from 10.04.2017 to 18.04.2017 shall be set off under Section 428 of Cr.P.C. The right of appeal is intimated to the accused.

24.Heard the accused/A2 with regard to the quantum of sentrence to be imposed against him. He submitted that he has to look after his family and he is improsined, they will suffer hardship and hence requested to take a lienant view. In view of the nature of offence, this Court holds that lenient view cannot be taken and section 360

Cr.P.C and the provisions of Probation of Offenders Act cannot be invoked. Therefore,

A2 is sentenced to pay fine of Rs.500/- for the offence under Section 447 of I.P.C and further sentenced to pay fine of Rs.1,000/- for the offence under Section 425 I.P.C and further sentenced to undergo simple imprisionment for a period of one year for the offence under Section 506(2) I.P.C. In default of payment of fine, A2 shall further undergo simple imprisionment for a period of one month. All the sentences shall run concurrently. There is no remand period undergone by the A2 to be set off. The right of appeal is intimated to A2/accused.

25.In the result, A1 and A2 are found guilty for the offences under Sections 447, 425 and 506(2) r/w 34 of I.P.C. Further, A1 is found guilty for the offences under

Sections 4 & 5 of A.P.L.G Act and A2 is found not guilty for the offences under 15 PJCJ -cum-MM COURT, VSP

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Sections 4 & 5 of A.P.L.G Act Hence, they are convicted U/s. 248(2) Cr.P.C. A1 is sentenced to undergo simple imprisionment for a period of 6 months and to pay fine of Rs.200/- for the offence under Section 4 of A.P.L.G.Act and further to undergo simple imprisionment for a period of three years and to pay fine of Rs.500/- for the offence under Section 5 of A.P.L.G.Act. A1 is further sentenced to pay fine of

Rs.300/- for the offence under Section 447 of I.P.C and to pay fine of Rs. 500/- for the offence under Section 425 I.P.C and further to undergo simple imprisionment for a period of one year for the offence under Section 506(2) I.P.C. In default of payment of fine, A1 shall further undergo simple imprisionment for a period of one month. All the sentences shall run concurrently. The remand period undergone by A1 from 10.04.2017 to 18.04.2017 shall be set off under Section 428 Cr.P.C. A2 is sentenced to pay fine of Rs.500/- for the offence under Section 447 of I.P.C and to pay fine of

Rs. 1000/- for the offence under Section 425 I.P.C and further to undergo simple imprisionment for a period of one year for the offence under Section 506(2) I.P.C. In default of payment of fine, A2 shall further undergo simple imprisionment for a period of one month. All the sentences shall run concurrently. There is no remand period undergone by the A2 to be set off under Section 428 Cr.P.C. The right of appeal is intimated to A1 and A2/accused.

Dictated to my Personal Assistant, transcribed by her,corrected and pronounced by me in the

open court this the4 th day of December, 2018.

Principal Junior Civil Judge-cum-

Metropolitan Magistrate, Spl Court for trial of offences Under Ap Land Grabbing (PROHIBITION) Act,Visakhapatnam 16 PJCJ -cum-MM COURT, VSP

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APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution:For Defense: PW-1 : Sri.Ramesh VarmaDW1: Sri.D.Chinna Appanna PW-2 :Sri.B.Pydi Raju PW-3 :Sri.N.Narasinga Rao PW-4 :Sri.P.Appla Raju PW-5 : Sri.S.Krishna Murthy Raju PW-6 : Sri. J.Appa Rao PW-7 :Sri.G.Peda Yerri Naidu PW-8 : Sri.B.Appa Rao PW-9: Sri.P.Bhagavan PW-10: Sri.J.Ramesh Babu PW-11:Smt.K.Sumathi Bai PW12: Sri.Y.Kishore Kumar

Exhibits marked

For Prosecution: Ex.P1:Computerized copy of 1B Ex.P2: Report dt. 25.03.2017 Ex.P3:Section 161(3) Cr.P.C statement of PW6, Ex.P4 :Mediators report Ex.P5:Sketch along with the report Ex.P6:Attested copy of pattadar pass book, Ex.P7:Letter addressed by the SHO, Padmanabham P.S. Ex.P8:Letter addressed to the Station House Officer, Padmanabham Ex.P9:Letter addressed by the SHO, Padmanabham P.S. dt. 19.05.2017 Ex.P10:The letter Ex.P11:Online copy of 1B register Ex.P12:First Information Report Ex.P13:Rough sketch of scene of offence Ex.P14:Photographs, Ex.P15 letter addressed to the Tahasildar, Ex.P16 is letter dt. 27.05.2017 Ex.P17 is proceedings dt. 25.09.2017 For Defense: Ex.D1:Calender and judgment in C.C.No.42/2017 on the file of IV MM, Bheemunipatnam Ex.D2: Photostat copy of FIR in Cr.No.124/2016 of Padmanabham P.S.

/-Smt.Sha mi gum

Principal Junior Civil Judge-cum-

Metropolitan Magistrate, Spl Court for trial of offences Under Ap Land Grabbing (PROHIBITION) Act, Visakhapatnam 17 PJCJ -cum-MM COURT, VSP

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CALENDAR

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE CUM

METROPOLITAN MAGISTRATE, SPL COURT FOR TRIAL OF OFFENCES

UNDER AP LAND GRABBING (PROHIBITION) ACT, VISAKHAPATNAM

C.C. No.23/2018

Date of offence :20.03.2017 Date of Report/Complaint:25.03.2017 Date of Apprehension:A1: 10.04.2017 A2: 11.04.2017 Date of Release on bail:A1: 18.04.2017 A2: 11.04.2017 Date of Commencement of Trial:20.03.2018 Date of closure of Trial:02.11.2018 Date of Sentence or order:04.12.2018 Explanation for delay:Delay due to non-production of witnesses by the prosecution and no witness is detained beyond three days. Calendar Case No.:C.C.No.23/2018 Name of the Complainant:Station House Officer, Padmanabham, P.S. Name of the Accused:1. Dendeti Chinna Appanna, S/o. Appanna, age 37 years, Caste by SC, Bandevapuram Village,PadmanabhamMandal, Visakhapatnam City.

2.Dendeti Appanna @ David Raju, S/o. Appanna, S/o.Appanna, aged 37 years, caste by SC,Bandevupuram Village, Padmanabham Mandal, Visakhapatnam. Offence U/Sec.:U/s.447 I.P.C: Whoever tresspasses in to the land belonging to the another thereby commits the offence under section 447 I.P.C; U/s. 425 I.P.C: Whoever tresspasses in to the land belonging to the another thereby commits the offence under section 425 I.P.C; U/s. 506(2) I.P.C: who ever threatens another to cause death or grievous hurt commits the offence under section 506(2) I.P.C. Sec. 4 & 5 A.P.L.G Act, 1982, whoever commits or causes to commit land grabbing thereby commits the offence under section 4 & 5 of A.P.L.G.Act. Finding of the court:In the result, A1 and A2 are found guilty for the offences under Sections 447, 425 and 506(2) r/w 34 of I.P.C. A1 is found guilty for the offences under Sections 4 & 5 of A.P.L.G Act and A2 is found not guilty for the offences under Sections 4 & 5 of A.P.L.G Act Hence, they are convicted 18 PJCJ -cum-MM COURT, VSP

CC No.23/2018

U/s. 248(2) Cr.P.C. A1 is sentenced to undergo simple imprisionment for a period of 6 months and to pay fine of Rs.200/- for the offence under Section 4 of A.P.L.G.Act and further sentenced to undergo simple imprisionment for a period of three years and to pay fine of Rs.500/- for the offence under Section 5 of A.P.L.G.Act. A1 is further sentenced to pay fine of Rs.300/- for the offence under Section 447 of I.P.C and sentenced to pay fine of Rs. 500/- for the offence under Section 425 I.P.C and further sentenced to undergo simple imprisionment for a period of one year for the offence under Section 506(2) I.P.C. In default of payment of fine, A1 shall further undergo simple imprisionment for a period of one month. All the sentences shall run concurrently. The remand period undergone by A1 from 10.04.2017 to 18.04.2017 shall be set off under Section 428 Cr.P.C. A2 is sentenced to pay fine of Rs.500/- for the offence under Section 447 of I.P.C and further sentenced to pay fine of Rs. 1000/- for the offence under Section 425 I.P.C and further to undergo simple imprisionment for a period of one year for the offence under Section 506(2) I.P.C. In default of payment of fine, A2 shall further undergo simple imprisionment for a period of one month. All the sentences shall run concurrently. There is no remand period undergone by the A2 to be set off under Section 428 Cr.P.C. The right of appeal is intimated to A1 and A2/accused.

Principal Junior Civil Judge-cum-

Metropolitan Magistrate, Spl Court for trial of offences Under Ap Land Grabbing (PROHIBITION) Act, Visakhapatnam

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 THE COURT OF III ADDITIONAL JUNIOR CIVIL JUDGE:

VISAKHAPATNAM.

PRESENT: Smt. K. Saradambha, R.C.C­cum­IV Additional Junior Civil Judge, FAC­III Additional Junior Civil Judge, Visakhapatnam. 

Friday, the 30th Day of June, 2017

O.S.No.675/2013

Between:

Smt. Sukala Satyavathi, W/o. Veerraju, Hindu, aged 36 years, resident of d.No.32­34­160/1, SVP Nagar, Kobbarithota, 29th GVMC Ward, Visakhapatnam­530029. … Plaintiff And:

1. Vasupalli Ammoru, S/o. Maseenu, Hindu, aged 50 years, Police Constable, resident of Mangamaripeta Villag4e, Bheemunipatnam Mandal, Visakhaptnam District

2.Vasupalli Aruna, W/o. Ammoru, Hindu, aged 45 years, resident of Mangamaripeta Villag4e, Bheemunipatnam Mandal, Visakhaptnam District.

3.Vasupalli Naresh Kumar, S/o. Ammoru, Hindu, aged 25 years, resident of Mangamaripeta Villag4e, Bheemunipatnam Mandal, Visakhaptnam District.

4.Vasupalli Mahesh Kumar, S/o. Ammoru, Hindu, aged 21 years, resident of Mangamaripeta Village, Bheemunipatnam Mandal, Visakhaptnam District.

5.Vasupalli Satyavathi, W/o. Ammoru, Hindu, aged 40 years, resident of D.No.32­34­141, Kobbarithota, SVP Nagar, Visakhaptnam.

6.Vasupalli Vani, D/o. Ammoru, Hindu, aged 21 years, resident of D.No.32­34­141, Kobbarithota, SVP Nagar, Visakhaptnam.

7.Vasupalli Veena, D/o. Ammoru, Hindu, aged 21 years, resident of D.No.32­34­141, Kobbarithota, SVP Nagar, Visakhaptnam.

… Defendants

This suit coming on 30.06.2017 for final hearing before me in the presence of Sri Bypa Arun Kumar, Advocate for plaintiff, and Sri M. Ravi,

Advocate for 1st defendant and Sri K. Narasimha Sai, Advocate for D2 to D7, 2 and the same having stood over for consideration to this day, this court delivered the following:

JUDGMENT

This suit is filed by the plaintiff against the defendant seeking

permanent injunction restraining the defendants, their men and agents from

ever interfering with the plaintiff's peaceful possession and enjoyment of the

plaint schedule property in any manner whatsoever and for costs of the suit.

2.The brief averments of the plaint, are as follows :

The plaintiff is absolute owner of the suit schedule property an extent

of 32 Sq.Yards. RCC Slabbed House, bearing D.No.32-34-141, Municipal

Assessment No.15945, Water Tax Assessment No.11341, electrical Service

Connection No.1121021102061524 and 1121021164668, Ground, 1st and 2nd

floors purchased from phis vendors the defendants herein for valuable

consideration of Rs.8,00,000/- on 31st October, 2013, the Sale deed by way

of unregistered Sale deed document No.1.

3.The plaintiff was in peaceful possession and enjoyment of the suit schedule property from the date of purchase on 31st October, 2013, with

absolute right title possession and enjoyment of th suit schedule property

without any interruption whatsoever. No link document is available with the

plaintiff or the defendants. The suit schedule property is self acquired

property of the 1st defendant as such the tax Pass Book is in the name of 1st

defendant, property Tax assessment yet to be changed in the name of

plaintiff.

4.The 2nd defendant is 1st wife of 1st defendant 3rd and 4th defendants are sons born to them 5th defendant is 2nd wife of 1st defendant and 6th and 7th 3 defendants are children of 1st defendant born to them. That all the defendants

are belongs to one family. All the defendants are under the care and custody

of the 1st defendant. The 1st defendant has been working in Police

Department as a Police constable now working as a Gun Man. All the

defendants are with malafide intention to grab the suit schedule property by

illegal and unlawful means as such interfering in the suit schedule property

for the last two years along with their.

5.The plaintiff stated that the defendants made an attempt on 5th

December, 2013 at about 9.00 a.m., to interfere in the suit schedule property

in order to occupy the suit schedule property on timely intervention of the

residents of the area they left the suit property and openly proclaimed that

they will come again and occupy the suit schedule property.

6. The plaintiff contended the she has strong primafacie case and balance

of convenience is rests on her side, unless the Honourable Court mapy grant

relief of permanent injunction orders in favour of the plaintiff and against

defendants. The plaintiff will be put to much irreparable loss and hardship,

if such orders have been passed by the Honourable Court, the defendants

have not sustained any loss, damages or injury.

7.Therefore, the plaintiff filed this suit for permanent injunction,

restraining the defendants their men, agents from ever interfering with the

plaintiff’s peaceful possession and enjoyment of the suit schedule property.

8. In response to the summons received, the defendants made her

appearance through her counsel and filed detailed written statement by

denying averments in the plaint.

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9. The brief averments of the written statement are as follows:

The 1st defendant filed his written statement as follows:

i)The first defendant contended that the plaintiff has filed the above false suit against them for permanent injunction and the allegations mentioned Para III (a) are all not correct and untenable under law, the plaintiff is strict proof such of those allegations, and Para III (b) The plaintiff is the absolute owner of the plaint schedule property having purchased the same for valuable consideration of Rs.8,00,000/­ on 31.10.2013 by way of an unregistered Sale deed and that the physical possession of the plaint schedule property was delivered to the plaintiff, and that all the respondents with a mollified intention to grab the plaint schedule property are proposing to interfere with the peaceful possession of the plaintiff and that they made an attempt on 05.12.2013 at about 9 a.m., to occupy the property but on timely intervention of the residents of the area, they left the property by openly proclaiming that they will come again and occupy the same and the defendants are having financial and political influence and they have no respect for law order are all false and not correct.

ii)The defendant stated that the allegations in a Para III (b to c) The plaintiff did not purchase the plaint schedule property on 31.10.2013, the plaintiff and his relatives created for forged document and signatures of some of the defendants. The plaint schedule property acquired by the 1st defendant father, and the defendants have no right to sell the plaint schedule any third parties. The alleged document on which the plaintiff is basing the claim is an unregistered Sale deed and as such no rights flow from the said document and thus the plaintiff neither has a title to the property nor any other right of 5 possession and all are not true and correct. Hence, the defendant prays to dismiss this suit with costs. 

10.Basing on the above said pleadings the following issues were settled for trial:

(1) Whether the plaintiff is entitled for relief of permanent injunction,

restraining the defendant, his men and agents from even interfering

with the peaceful possession and enjoyment of the plaint schedule

property?

(2) To what relief ?

11.During the course of trial, the plaintiff got examined herself as P.W.1 and also examined P.W.2 to P.W.5 and Exs.A1 to A5 are marked. On behalf of defendant, the defendant got examined herself as D.W.1, and D.W.2 was examined as Exs.B1 to B6 are marked.

12.Ex.A1 is not considerable document. It is Sale agreement. The address of plaintiff reveals that plaintiff is not in possession of the property covered under Ex.A1.

13.Though Ex.A1 is Sale agreement possession was delivered Stamp duty and penalty as been collected by the District Registrar, Visakhapatnam on 17.04.2017. Hence, the same is treated as Sale agreement.

14.The defendants address reveals the Ex.A2, Ex.A3 and Ex.A4 not relevant this case every thing shows that and Exs.B1 to B3 shows the possession of the defendants.

15.The plaintiff filed written arguments and he categorically stated that she is having primafacie case and the balance of convenience and also in her favour and injunction is not granted to her irreparable loss will be caused to her and the same cannot be confinestated in any terms and heard the defendants also.

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Issue No.1:

i)The plaintiff examined as P.W.1 and she purchased the suit schedule property of 32 Sq.Yards , RCC Slabbed House, Ground , 1st and 2nd floors purchased from her vendors the defendants for valuable consideration of

Rs.8,00,000/­ in 2013, by way of un­registered Sale Deed, and she was peaceful possession and enjoyment of the suit schedule property from the date her purchase with absolute right title possession and enjoyment of the suit schedule property without having any interruption whatsoever. 

ii)She further stated that the defendants 1 to 7 and wife, children and 2nd wife of the 1st defendant and the belongs to one family. The 1st defendant has been working in Police Department, and all the defendants are with malafide intention to grab the suit schedule property by illegal and unlawful gain to interfere in the suit schedule property.

iii) The defendants are having financial and political influence try to tresspass into the plaint schedule property high handedly at any point of time and the defendants have no respect for law and order, and the plaintiff filed this suit for permanent injunction.

iv)One Garikina Konda Babu was examined as P.W.2 . He categorically stated that the plaintiff purchased the suit schedule property of 32

Sq.Yards, Ground, 1st and 2nd floors purchased from vendors the defendants of Rs.8,00,000/­ on 31st October, 2013.

v)Since that the plaintiff was peaceful possession and enjoyment of suit schedule property, on 05.12.2013, the defendants made an attempt suit schedule property in order to occupying the same and that they left the property proclaiming.

7 vi)One Vasupalli Yella Rao, was examined as P.W.3 and also deposed that the plaintiff purchased the suit schedule property of 32 Sq.Yards,

Ground, 1st and 2nd floors purchased from vendors the defendants of

Rs.8,00,000/­ on 31st October, 2013.

vii)In his cross­examination P.W.3 deposed that he was doing Private

Electrical work but not doing Private employee. He had been discharging

Secretary duties of his Sangham, Since 1997 and he know P.W.1 since then and also no all the defendants since then. He further deposed that usually all the property transactions like purchase of property or selling of property is done within his Sangham knowledge. He did not mediate the transaction covered under Ex.A1 in fact P.W.1 and defendants have negotiated the transaction covered by Ex.A1, but being Sangham members he supposed to help them. P.W.3 further deposed that the time of filing of the suit defendants are residing in second floor. As suggestion was put to the P.W.3 that the defendants have not handed over position of property and he deposing false evidence with a view to help P.W.1. and the said suggestion was denied by P.W.3. 

viii) One Dasari Yellayya, was examined as P.W.4 and also deposed that the plaintiff purchased the suit schedule property of 32 Sq.Yards, Ground, 1st and 2nd floors purchased from vendors the defendants of Rs.8,00,000/­ on 31st October, 2013.

ix)In his cross­examination, he deposed he is working in Dock Labour

Board as a permanent employee. D1 is his Brother­in­law and D2 and D5 are his own sisters, and they are residing plaint schedule property and he is also residing near the plaint schedule property. He further deposed that usually all the property transactions like purchase of property or selling of 8 property is done within his Sangham knowledge. He did not mediate the transaction covered under Ex.A1 in fact P.W.1 and defendants have negotiated the transaction covered by Ex.A1, but being Sangham members he supposed to help them. P.W.4 further deposed that the time of filing of the suit defendants are residing in second floor. As suggestion was put to the P.W.3 that the defendants have not handed over position of property and he deposing false evidence with a view to help P.W.1. and the said suggestion was denied by P.W.4. 

x)One Ambati Mahesh, was examined as P.W.5 and also deposed that the plaintiff purchased the suit schedule property of 32 Sq.Yards, Ground, 1st and 2nd floors purchased from vendors the defendants of Rs.8,00,000/­ on 31st October, 2013.

xi) In his cross­examination, he deposed that usually all the property transactions like purchase of property or selling of property is done within his Sangham knowledge. He did not mediate the transaction covered under

Ex.A1 in fact P.W.1 and defendants have negotiated the transaction covered by Ex.A1, but being Sangham members he supposed to help them. P.W.5 further deposed that the time of filing of the suit defendants are residing in second floor. As suggestion was put to the P.W.3 that the defendants have not handed over position of property and he deposing false evidence with a view to help P.W.1. and the said suggestion was denied by P.W.5.

xii)Vasupalli Ammoru was examined as D.W.1 and he deposed that the plaintiff never in possession and enjoyment of the plaint schedule property and the plaintiff did not purchase the plaint schedule property on 31.10.2013. Originally the plaint schedule property acquired by the father of

D.W.1 Sri Maseenu since last several years himself and other defendants 9 have no right to sell the plaint schedule to the plaintiff, and the defendants or any mortgage to third parties. He further deposed after obtaining the signatures of the other defendants and forged his signature, the plaintiff did not give any money to him or to any other defendants, and the suit is not maintainable under law.

xiii) In his cross­examination, he is residing at Mangamaripeta,

Bheemunipatnam Mandalam, and working as A.R.Constable, Commissioner of Police, Visakhapatnam since 30 years. A suggestion was put to D.W.1 that taking advantage of his Police Constable job, and though he handed over his physical possession of schedule property on the date of Ex.A1 was executed by his along D2 to D7 receiving part huge consideration of

Rs.8,00,000/­ and agreed to receive remaining Rs.7,00,000/­, and deposing this false evidence as if P.W.1 forged his signature on Ex.A1 with a view to deprive P.W.1’s lawful right in enjoyment and possessing schedule property and P.W.1 deposing utterly false evidence with a view to attack. It is not true to suggest that though P.W.1 did not run any chit business, and several cases have been pending against her in that chit transaction. The said suggestion was denied by D.W.1.

xiv)The 2nd defendant one Vasupalli Aruna, who is examined as D.W.2 categorically deposed that the plaintiff filed the suit against her and other defendants for permanent injunction.

xv)She further deposed that the plaintiff indulging in unauthorised chit business running the same since, 16 years and her having financial dealing with the local people. She further deposed that her self and 1st defendant are not cordial and there was divorce proceeding pending between themselves and 1st defendant.

10 xvi)In her Cross­examination, she stated that she studied 5th standard.

Her husband D1 working as Police Constable. She do not know the case facts a suggestion was put to her that the plaintiff as been the possession of the property by virtue of Ex.A1 Sale Deed and that nore of the defendants have no right over the property, and the suggestion was denied. She was also suggested on the complent lodged by plaintiff, Police admerised, and they have given undertaking letter to Police they would not interfere with the possession of plaintiff property, and said suggestion was denied.

xvii) On careful perusal of the evidence P.Ws as 1 to 5 and also the documents as Exs.A1 to A5 and also the evidence of D.Ws 1 and 2 and also the documents as Exs.B1 to B6, that the plaintiff established her right over the plaint schedule property and the defendants have no right to interfere with the plaint schedule property. Hence, this issue is answered affirmative.

Issue No.2:

In the result, The suit is decreed with costs in favour of the plaintiff

against the defendants granting the Permanent Injunction in favour of the

plaintiff restraining the defendants from ever interfering with the plaintiff

peaceful possession and enjoyment of the plaint schedule property.

Typed to my dictation, pronounced by me in the open court this the 30th day of June, 2017.

R.C.C­cum­IV Addl. Junior Civil Judge, FAC­III Addl. Junior Civil Judge,

VISAKHAPATNAM.

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APPENDIX OF EVIDENCE

Witness examined

For Plaintiff :

P.W.1 : 1. Smt. Sukala Satyavathi

P.W.2 : 2. Garikina Konda Babu

P.W.3 : 3. Vasupalli Yella Rao

P.W.4 : 4. Dasari Yellayya

P.W.5 : 5. Ambati Mahesh

For Defendant :

D.W.1: Vasupalli Ammoru

D.W.2: Vasupalli Aruna

Documents marked

For Plaintiff : For Defendant : NIL

Ex. A1 : Sale Deed in favour of the plaintiff, dated 31.10.2013. Ex.A2 : Tax Pass Book, dated 24.04.2003. Ex.A3 : Tax receipt issued by the GVMC, Visakhapatnam, dated 01.11.2013 Ex.A4 : Aadar Card in favour of plaintiff. Ex.A5 : House hold card in favour of the plaintiff, dated 07.08.2005.

For Defendants:

Ex.B1 : Aadhar card of D.W.1 Ex.B2 : Voter ID card of D1, dated 15.12.1995. Ex.B3 : H.P. Gas Pass Book issued by the Gas Agencies in favour of D1.

Dated 31.07.1997.

Ex.B4 : Electricity bills for the months from October 2013 to January, 2014. Ex.B5 : Police complaint given pby the D1 against plaintiff, dated 24.04.2014. Ex.B6 : Receipt issued by the SHO, II Town P.S., dated 24.01.2014.

R.C.C­cum­IV Addl. Jr. Civil Judge, FAC­III Addl. Jr. Civil Judge,

VISAKHAPATNAM.

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//FAIR//

IN THE COURT OF III ADDITIONAL JUNIOR CIVIL JUDGE:

VISAKHAPATNAM.

PRESENT: Smt. P. Sai Sudha,

III Additional Junior Civil Judge, Visakhapatnam. Saturday, the 3rd day of June, 2017

O.S.No.221/2014

Between:

1. Kuncham Sai Prasanna Gupta, S/o Late Veereswara Rao, Hindu, Aged 38 years, Employee, Residing in Room No.5, D.No.25-20-4, Chagantivari Street, (Lakshmi Narasumamba Choultry), Visakhapatnam – 530001.

2. Siddanati Jaggayyamma, W/o Late Sanyasi Rao, Hindu, Aged 54 years, Employee, Residing in Room Nos.7 and 8, Chagantivari Street, (Lakshmi Narasumamba Choultry), Visakhapatnam – 530001.

...Plaintiffs

And :

Secretary, Sri Kanyakaparameswari Devasthanam Sangham, Sri Kanyakaparameswari Temply, M.G Road, Visakhapatnam – 530001, The current holder of the office being Kattamuri S.Rao (Raja), Residing at D.No.38-1-19, Kunchumamba Street, Marripalem, Visakhapatnam – 530018.

...Defendant

This suit is coming on 03-05-2017 for final hearing before me in the presence of Sri C.N.S.P.Krishna Rao, Advocate for the Plaintiffs and of Sri N.V.S.Prasada Varma, Advocate for the Defendant and the same having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

This suit is filed by the plaintiffs against the defendant Sangham to grant perpetual injunction, restraining the defendants not to interfere with the possession and enjoyment of the suit schedule premises by plaintiffs and not to evict them except in accordance with due process of law.

2.The brief averments of the plaint, are as follows :

The plaintiffs herein are tenants of defendant Sangham inducted as such several decades ago. The first plaintiff is a tenant in 'A' schedule premises and second plaintiff is a tenant in 'B' schedule premises and they have been paying monthly rent of Rs.645/- and Rs.800/- respectively. Further, they have been paying electricity charges by making deposit with APEPDCL in the name of

Devasthanam. The defendant Devasthanam Sangham, which was under the control of the Endowments Department got released and went under the management of the Sangham consisting of community members. Even, at that moment, the defendant Sangham did not take step to drive out plaintiffs from the suit schedule property, Later, the members of the Sangham intended to raise a multi storeyed building in the place of the old building to make substantial gain and in order to evict the plaintiffs from the suit schedule premises, they have blocked the drains with the help of GVMC workers.

Subsequently, the defendant Sangham gave a letter, dated 30-11-2013 to plaintiffs stating that GVMC authorities wants to demolish the building and hence they are required to vacate the building by 04-12-2013. When the plaintiffs requested defendant Sangham to show the said notice issued by the

Municipal Corporation, the members of the Sangham shouted at plaintiffs.

3.No Municipal official visited or evaluated the suit schedule premises.

Though, the building is old, it is not in imminent danger of collapse. The defendant Sangham only with an intention to construct a multi stroreyed building and to have substantial gain is trying to evict the plaintiffs forcibly.

Hence, plaintiffs have filed the present suit.

4.On receiving summons, the defendant Sangham has filed its written statement, traversing allegations in the plaint and admitting that initially that the defendant Sangham is under control of Endowments Department and later it was released from their control and formed themselves into a sangham headed by members of their community. Further, it is contended by defendant

Sangham that plaintiffs were originally inducted as tenants in the schedule premises till 2003 and later they have continued in possession without having any valid lease. Inspite of several requests made by the Executive Authorities to vacate the premises as the building is in a dilapidated condition and on the verge of collapse, the plaintiffs failed to vacate the premises and filed the present suit with misleading facts. As per explanation to Section 83 (1) of AP

Endowments Act, the plaintiffs squarely communicated within the definition of 'Encroacher'. The schedule premises which is covered by D.No.25-20-4 consists of 7 rooms occupied by four persons. Further, the building is a very old building and is in dilapidated condition and room numbers 1 to 4 were collapsed. When there was a major accident in the State of A.P., in which an old building collapsed resulting in the death of several persons, who are in occupation of the said building, then the Government has immediately issued instructions to the Municipal Authorities all over the State to identify and demolish the old structures, which are unfit and endangerous to human habitation. Further, plaintiffs are not paying any amount to the temple for their use and occupation of the schedule premises since December, 2013 to March 2014, and then the executive authority of the temple has issued notice to the plaintiffs herein stating that they are in occupation of the schedule building, which is in a dilapidated condition and asked them to vacate the premises.

Moreover, the jurisdiction of the Civil Court is expressly and implied barred under Sections 150 and 151 of the AP Endowments Act. Hence, prayed to dismiss the suit with exemplary costs.

5.After perusing the pleadings and documents on record, the following issues are settled for trial by one of my learned predecessors :

(1) Whether this Court has no jurisdiction to try the suit in view of bar under

Sec.150 and 151 of A.P.Endowments Act, 1987 as alleged by the defendant ?

(2) Whether plaintiffs are entitled for permanent injunction as prayed for?

(3) To what relief ?

6.During the course of trial, plaintiffs got examined themselves as P.W.1 and P.W.2, besides examining P.W.4, and got marked Exs A1 to A14. Though proof affidavit of P.W.3 was filed, it was eschewed as he did not chose to appear before the Court to give evidence. On behalf of Defendant Sangham,

D.W.1 was examined and Exs.B1 to B4 are marked.

7.Heard the learned counsel for plaintiffs, who argued that as the

Defendant Sangham got released from the Endowments Department,

A.P.Endowments Act is not applicable to them and hence the jurisdiction of the Civil Court is not barred as pleaded by the defendant in view of notification appended to the G.O.M.S.No.1572, dated 24-10-2006. He also argued that in Kanyaka Parameswari Vartaka Sangham Vs. Commissioner of Endowments, AIR AP 1979 Page 173, the Hon'ble High Court observed that “there cannot be an endowment unless there is an unequivocal divestiture of ownership and dedication.” He argued that further in Dasaradharami

Reddy Vs. Subba Rao, AIR 1957 SC 797, it was observed that “the creation of the endowment is to be shown by satisfactory evidence, conduct of the parties and user of the property which shows the extinction of the secular character of the property and its total dedication to charity.” Therefore, in view of the above decisions, the benefits and exemptions available for a charitable endowment cannot be extended to the suit schedule property. He further argued that even if assuming for a moment that plaintiffs are encroachers, they cannot be evicted without adopting the procedure provided under law. Hence, prayed to decree the suit in favour of plaintiffs. Memo of written arguments filed on behalf of plaintiffs.

8.Per contra, the learned Defense Counsel argued that as the defendant

Sangham is a religious institution within the meaning of the A.P. Endowments

Act, 1987, the jurisdiction of the Civil Court is expressly barred under

Sections 150 and 151 of the said Act and hence the suit itself is not maintainable. He also argued that the plaintiffs are entitled to reside in the suit schedule property till 2003 only and despite the said fact they continued in possession of the said premises. He also argued that even though the defendant

Sangham has informed the plaintiffs about the notice issued by the G.V.M.C authorities in respect of old and dilapidated buildings, the plaintiffs did not vacate the premises and hence they squarely come within the definition of 'Encroacher'. He argued that as the building is in a dilapidated condition, an injunction cannot be granted in favour of plaintiffs and hence prayed to dismiss the suit. He also relied on case law Jampani Trilokeswari & Another

Vs. Dharmadaya Tope represented by it Fit person and Others, 2012 (2) ALT 294, which relates to exclusion of jurisdiction of a civil Court.

9.Issue No.1 :-

It is the pleaded case of the defendant Devasthanam Sangham that as per Section 6 of A.P. Endowments Act, 1987 the defendant Sangham is a religious institution and the jurisdiction of a Civil Court is expressly and impliedly barred under Sections 150 and 151 of the said Act and A.P.

Endowments Tribunal is the competent authority to decide the dispute. In support of his contention, he relied on case law Jampani Trilokeswari &

Another Vs. Dharmadaya Tope represented by it Fit person and Others,

2012 (2) ALT 294, wherein it was held at paragraph 9 that “to decide the disputes pertaining to the claims relating to properties, the Act provides a perfect mechanism under Section 87 of the Act. In the recent past, an independent tribunal is constituted for that very purpose under Section 162 of the Act.”

To dispel this plea taken by the defendant Devasthanam Sangham, the learned counsel for plaintiffs argued that the defendant Devasthanam Sangham is not a charitable institution as the object of the Sangham was to provide accommodation to the people belonging to Vysya community and hence it cannot take umbrage stating that the jurisdiction of a Civil Court is expressly barred under Sections 150 and 151 of the A.P. Endowments Act. The learned counsel for plaintiffs submitted that the building of which the suit schedule property is a part is a Choultry popularly known as Smt.Lakshmi

Narasumamba Choultry.

It is admitted by the defendant Devasthanam Sangham that their

Devasthanam got released from the control of the A.P. Endowments Act, 1987 vide G.O.M.S.No.1572, dated 24-10-2006. Further, it has also been admitted that they are exempted from application of Sections 15 and 29 of the said Act.

Moreover, during the course of cross-examination, D.W.1 who is the Secretary of the Defendant Devasthanam Sangham has admitted the said fact. Therefore, in view of the above facts, this Court is of opinion that the jurisdiction of the

Civil Court is not barred and this Court has jurisdiction to try the matter.

Therefore, this issue is answered against the defendant and in favour of plaintiffs.

10.Issue no.2:- with regard to this issue, it is the contention of the plaintiffs that as they are in possession of the suit schedule premises and they have been paying rents to the Defendant Devasthanam Sangham without any default they cannot be evicted from the suit schedule premises except under the due process of law. In support of their contention, the plaintiffs got examined themselves as

P.W.1 and P.W.2 and reiterated their pleaded case. Exs.A1 to A7 are marked through P.W.1 and Exs.A8 to A14 are marked through P.W.2. These documents filed by the plaintiffs show that they are in possession and enjoyment of the suit schedule premises. Furthermore, though it was pleaded by the defendant that the lease period expired in the year 2003 and hence the plaintiffs are encroachers, D.W.1 himself admitted that they have been receiving enhanced rents from the plaintiffs in respect of suit schedule property till the date of filing of the suit and also did not issue any notice to them. A careful perusal of the evidence of P.W1 to 3 show that the plaintiffs are in possession and enjoyment of the suit schedule premises. Therefore, in view of foregoing discussion, this Court holds that the plaintiffs are entitled for the permanent injunction as prayed for.

11.Issue no.3:

In the result, the suit is decreed with costs in favour of plaintiffs and against defendant thereby granting perpetual injunction not to interfere with the possession and enjoyment of the suit schedule premises by plaintiffs and not to evict except under due process of law.

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

me in open Court, this the 3rd day of June, 2017.

III Addl Junior Civil Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

Witness examined

For Plaintiff :

P.W.1 : Kuncham Sai Prasanna Gupta

P.W.2 : Siddanati Jaggayyamma

P.W.3 : Grandhi Sita Ramamurthy (Eschewed on 07-11-2015)

P.W.4 : Vankayula Ravi Kiran

For Defendant :

D.W.1 : P. Suresh Kumar

Documents marked

For Plaintiff :

Ex.A1 : Original Receipt bearing NO.539, Dt.01-11-1979.

Ex.A2 : Receipt issued APEDCL, Dt.26-07-2004 towards payment of electricity charges.

Ex.A3 : Electricity consumption Bill, Dt.09-10-2004 along with E-Seva

Receipt, Dt.06-11-2004.

Ex.A4 : Receipt, Dt.26-07-2004 issued by Sri Kanyaka Parameswari

Devasthanam for Rs.1,000/-.

Ex.A5 & A6 : Receipts bearing No.102 & 103, Dt.22-02-2014 issued by defendant Sri Kanyaka Parameswari Devasthanam for

Rs.2,580/- and Rs.3,720/- respectively.

Ex.A7 : Letter issued by the Secretary of Devasthanam to me, Dt.30-11-2013.

Ex.A8 : Receipt issued by Devasthanam in the name of the husband of P.W.2,

Dt.19-10-1988.

Ex.A9 : Receipt issued by Devasthanam in the name of the 2nd plaintiff for rents of February, March 2013.

Ex.A10 : Electricity Bill with relevant receipt paid by P.W.2, Dt.09-11-2013.

Ex.A11 : Receipt issued by Devasthanam for the rents paid, in the name of

PW.2, Dt.20-03-2014.

Ex.A12 : Letter issued by Devasthanam to the P.W.2, Dt.30-11-2013.

Ex.A13 : 8 Photographs of the portion of the P.W2 together with the CD.

Ex.A14 : 5 Photographs together with CD showing the temple watchman removing the tiled roof of the neighbouring rooms.

For Defendant :

Ex.B1 : Positive Photograph (Marked by P.W.1 on 06-04-2015)

Ex.B2 : Photostat copy of Letter addressed by second plaintiff to the

Secretary, Defendant Devasthanam, Dt.24-09-2003 (Marked as the counsel for plaintiff reported no objection).

Ex.B3 : Photostat copy of Letter addressed by mother of the first plaintiff to the Secretary, Defendant Devasthanam (Marked as the counsel for plaintiff reported no objection).

Ex.B4 : Positive Photographs 10 in number along with CD.

III AJCJ/VSP.

Date of Presentation : 15-04-2014 Date of Filing : 15-04-2014

IN THE COURT OF III ADDITIONAL JUNIOR CIVIL JUDGE:

VISAKHAPATNAM.

PRESENT: Smt. P. Sai Sudha,

III Additional Junior Civil Judge, Visakhapatnam. Saturday, the 3rd day of June, 2017

O.S.No.221/2014

Between:

1. Kuncham Sai Prasanna Gupta, S/o Late Veereswara Rao, Hindu, Aged 38 years, Employee, Residing in Room No.5, D.No.25-20-4, Chagantivari Street, (Lakshmi Narasumamba Choultry), Visakhapatnam – 530001.

2. Siddanati Jaggayyamma, W/o Late Sanyasi Rao, Hindu, Aged 54 years, Employee, Residing in Room Nos.7 and 8, Chagantivari Street, (Lakshmi Narasumamba Choultry), Visakhapatnam – 530001.

...Plaintiffs

And :

Secretary, Sri Kanyakaparameswari Devasthanam Sangham, Sri Kanyakaparameswari Temply, M.G Road, Visakhapatnam – 530001, The current holder of the office being Kattamuri S.Rao (Raja), Residing at D.No.38-1-19, Kunchumamba Street, Marripalem, Visakhapatnam – 530018.

...Defendant

This suit is filed for perpetual injunction not to interfere with the possession and enjoyment of the suit schedule premises by the plaintiffs and not to evict them except in accordance with due process of law and costs of the suit.

Value of the suit for the purpose of Court fee and Jurisdiction is Rs.20,000/- and a Court fee of Rs.1,386/- is paid under Section 26 (c) of A.P.C.F and S.V.Act.

This suit is coming on 03-05-2017 for final hearing before me in the presence of Sri C.N.S.P.Krishna Rao, Advocate for the Plaintiffs and of Sri N.V.S.Prasada Varma, Advocate for the Defendant and the same having stood over for consideration to this day, this court doth order and

D E C R E E

1. that the perpetual injunction be and the same is hereby granted in favour of the plaintiffs against the defendant not to interfere with the possession and enjoyment of the suit schedule property and not to evict the plaintiffs except under process of law.

2. the the defendant do pay to the plaintiffs for a sum of Rs.4,388/- (Rupees Four Thousand Three Hundred and Eight Eight only) towards costs of the suit.

Given under my hand and the seal of this court, this the 3rd day of June, 2017.

III ADDL. JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

MEMORANDUM OF COSTS

For Plaintifs For Defendant

No costs memo is filed

Stamps on Vakalat: 2-00

Stamps on Plaint: 1,386-00

Advocate Fee : 3,000-00 -------------- Costs allowed: 4,388-00 -------------- (Costs included as per orders in I.A.537/2017, dated 11-09-2017)

Verified by CMO III Addl. Junior Civil Judge, Visakhapatnam.

1 //FAIR//

IN THE COURT OF III ADDITIONAL JUNIOR CIVIL JUDGE:

VISAKHAPATNAM.

PRESENT: Smt. P. Sai Sudha

III Additional Junior Civil Judge, Visakhapatnam.

Friday, the 28th day of April, 2017

O.S.No.438/2015

Between:

Deepthi Controls, Represented by its Proprietor Sri D.Suresh Kumar, S/o Satyanarayana, Hindu, Aged 38 years, having its office at D.No.50-92-39, NH-5 Point, Sankaramatham Road, Santhipuram, Visakhapatnam.

...Plaintiff

And :

Star Battery World, Represented by its Proprietor Siriki Yerni Trinadha Rao, S/o Nageswara Rao, Hindu, Aged about 30 years, having its shop at opposite Nataraj Theatre, Thagarapuvalasa Road, Pendurthi, Visakhapatnam-531173, Residing at Opposite Ramalayam, Thandrangi Village, Kottam Post, Jami Mandal, Vizianagaram District – 535148.

...Defendant

This suit is coming on 02-03-2017 for final hearing before me in the presence of Sri R.S.Ravi, Advocate for the Plaintiff and of Sri J.G.Naidu, Advocate for the defendant and the same having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

This suit is filed by the plaintiff for recovery of money with subsequent, future interest and costs.

2.The brief averments of the plaint, are as follows :

The plaintiff is an authorized dealer of all types of Batteries, Inverters and UPS of Sukum Company and other companies. The defendant is the

Proprietor of Star Battery World which deals with sales and services of

Batteries, Inverters and UPS, having its shop at Pendurthy, Visakhapatnam.

The defendant is one of the customers of the plaintiff and he used to purchase

Batteries etc., from the plaintiff on credit basis and later he used to make part 2 payment.

3.During the course of such transactions, on 25-09-2012 the defendant has purchased Batteries and UPS from the plaintiff, worth of Rs.90,900/- vide Tax

Invoice No.675 and they were delivered to the defendant. Out of Rs.90,900/-, the defendant has paid an amount of Rs.87,900/-, thereby owing an amount of

Rs.3,000/-payable to the plaintiff. Subsequently, also on 01-11-2012, the defendant has purchased tubular Batteries from the plaintiff worth of

Rs.1,06,660/- vide Tax Invoice No.737 and the defendant did not pay any amount to the plaintiff. Further, on 06-03-2013, the defendant has purchased

Batteries worth of Rs.2,43,836/- vide Tax Invoice No.875 and the same was delivered to the defendant, who paid an amount of Rs.1,40,000/-, thereby owing an amount of Rs.1,03,836/- to the plaintiff. Thus, the defendant has to pay an amount of Rs.2,13,496/- to the plaintiff. On repeated demands by the plaintiff, the defendant has issued three cheques for Rs.25,000/-, Rs.45,000/- and Rs.45,000/- respectively drawn on State Bank of India, Pendurthi,

Visakhapatnam. When the plaintiff has presented the cheques for collection on 15-06-2013, they were dishonoured with endorsement “Funds Sufficient”.

Then the plaintiff has issued a Registered Lawyer's Notice to the defendant calling upon him to pay the amount due there under. On receiving the notice, the defendant approached the plaintiff and paid an amount of Rs.25,000/- on 30-08-2013 and Rs.50,000/- on 29-10-2013 by way of cash deposit into the plaintiff's bank account. The defendant assured to pay the remaining amount of Rs.1,38,496/- within short period and requested the plaintiff not to initiate any action against him.

4.Reposing faith in defendant, the plaintiff waited for some time and later 3 requested the defendant to pay the balance amount. Being vexed with the attitude of the defendant, the plaintiff has once again issued Lawyer's Notice to the defendant demanding him to pay the balance amount of Rs.1,38,496/- with interest. Inspite of receipt of su ch notice, the defendant did not pay any amount to the plaintiff. Hence, the plaintiff was constrained to file the present suit for recovery of Rs.1,38,496/- with interest @ 24% p.a from 29-10-2013 and for other reliefs.

5.In response to the summons received, the defendant has filed written statement denying the averments in the plaint and inter alia contending that the defendant had paid all outstanding dues to the plaintiff and out of good friendship, the plaintiff did not return cheques issued by the defendant. Later, some disputes arose between the plaintiff and defendant and on account of those differences, the plaintiff has filed the present suit, in order to have wrongful gain and to cause damage to the business of the defendant. Hence, prayed to dismiss the suit.

6.After perusing the pleadings and documents on record, the following issues are settled for trial, by my learned predecessor :

(1) Whether the defendant has cleared the debt to the plaintiff, which was raised in business transaction or not ?

(2) Whether the plaintiff is entitled for suit claim or not ?

(3) To what relief ?

7.During the course of trial, the plaintiff has examined its Proprietor as

P.W.1 by translating the averments of the plaint into acceptable direct evidence. Exs.A1 to A13 are exhibited on behalf of the plaintiff and for better appreciation, they are mentioned as under : Ex.A1 is Tax Invoice No.675 raised for Rs.90,900/-, dated 25-09-2012; Ex.A2 is Tax Invoice No.737 raised 4 for Rs.1,06,660/-, dated 01-11-2012; Ex.A3 is Tax Invoice No.875 raised for

Rs.2,43,836/-, dated 06-03-2013; Ex.A4 is Cheque Issued by the defendant for

Rs.25,000/-, dated 13-05-2013; Ex.A5 is Cheque Issued by the defendant for

Rs.45,000/-, dated 15-06-2013; Ex.A6 is Cheque Issued by the defendant for

Rs.45,000/-, dated 15-06-2013; Ex.A7 is Cheque Return Memo, dated 19-06- 2013; Ex.A8 is Cheque Return Memo, dated 19-06-2013; Ex.A9 is Cheque

Return Memo, dated 19-06-2013; Ex.A10 is Registered Lawyer's Notice,

dated 05-07-2013; Ex.A11 is Acknowledgement Card, dated 15-07-2013;

Ex.A12 is Registered Lawyer's Notice, dated 24-04-2014 and Ex.A13 is

Acknowledgement Card, dated 25-04-2014.

8.During the course of cross-examination, P.W.1 denied the suggestion that they will collect cheques for security purpose, while delivering items on credit basis. He also denied the suggestion that though the defendant has no debit with their accounts having initiate filled Exs.A4 to A6, cheques issued by him. He admitted that they did not file the register to show that the transactions are mentioned in the register.

9.In support of their contention, the plaintiff has also examined P.W.2, who delivered the Batteries, Inverters and UPS to the defendant in the case on hand. His evidence is to the effect that the defendant has purchased Batteries and UPS from the plaintiff and he delivered those items to the defendant.

10.During the course of his cross-examination, he stated that he is working in the plaintiff company and he do not know about the payments in respect of the materials delivered by him. Nothing significant could be elicited during his cross-examination.

11.A careful perusal of the oral or documentary evidence led on behalf of 5 the plaintiff clearly shows that Batteries worth of Rs.90,900/- were delivered to the defendant vide Ex.A1 Tax Invoice No.675, dated 25-09-2012. Further, the Batteries are also supplied to the defendant for Rs.1,06,660/- and

Rs.2,43,836 vide Exs.A2 and A3 Tax Invoice No.737 and 875.

12.ISSUE No.1:-

It is the case of the plaintiff that out of the amount due under Ex.A1 Tax

Invoice, the defendant has paid Rs.87,900/- and has to pay the balance amount of Rs.3,000/-. Further, in respect of the transactions under Exs.A2 and A3 Tax

Invoice Nos.737 and 875, the defendant has paid Rs.1,40,000/-, thereby owing to pay the balance amount of Rs.2,13,496/-. Exs.A4 to A6 Cheques and

Exs.A7 to A9 cheque return memos clearly show that the defendant has issued cheques to the plaintiff towards payment of the outstanding amount and they were dishonoured for the reason “Funds Insufficient”. It is also the case of the plaintiff, later the defendant had paid Rs.25,000/- on 30-08-2013 and

Rs.50,000/- on 29-10-2013 by way of cash deposit.

13.Though, the defendant has pleaded that he has paid the entire outstanding amount to the plaintiff, he did not produce any document, in support of his contention. Moreover, during the course of his cross- examination, he admitted that the cheques Exs.A4 to A6 issued by him to the plaintiff are dishonoured. Though, the defendant has maintained the stand that he has paid the entire amount to the plaintiff, he failed to prove either by oral or documentary evidence that he has cleared the entire debts. Though, it is submitted by the learned defense counsel that the plaintiff did not produce

before the Court the relevant register, it is for the defendant to show that he

has cleared the debt as pleaded by him.

6

14.Moreover, the defendant has pleaded that on account of disputes between him and the plaintiff, the present suit was filed. However, the defendant did not explain the nature of those differences and no suggestion was put to P.W.1, during the course of his cross-examination, with regard to alleged differences. Therefore, in view of the evidence discussed above, this

Court is of opinion that the defendant failed to show that he has cleared the debt to the plaintiff, which was raised in the business transaction.

15.ISSUE No.2:-

In view of findings on Issue No.1 and evidence placed by plaintiff , this

Court is of opinion that the plaintiff is entitled for recovery of suit amount as prayed for.

16.ISSUE No.3:-

In the result, the suit is decreed with costs in favour of plaintiff and against defendant for a sum of Rs.1,85,584.64/- (Rupees One Lakh Eighty

Five Thousand Five Hundred and Eighty Four and Sixty Four Paise only) with subsequent interest thereon @ 12% p.a from the date of suit till the date of decree and thereafter @ 6% p.a till realization.

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

me in open Court, this the 28th day of April, 2017.

III Addl Junior Civil Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

Witnesses examined

For plaintiff: For Defendant :

P.W.1 : D.Suresh KumarSiriki Yerri Trinadha Rao

P.W.2 : Juthika Ramu 7

Documents marked

For plaintiff: For Defendant : Nil.

Ex.A1 : Tax Invoice No.675 raised for Rs.90,900/-, dated 25-09-2012.

Ex.A2 : Tax Invoice No.737 raised for Rs.1,06,660/-, dated 01-11-2012.

Ex.A3 : Tax Invoice No.875 raised for Rs.2,43,836/-, dated 06-03-2013.

Ex.A4 : Cheque Issued by the defendant for Rs.25,000/-, dated 13-05-2013.

Ex.A5 : Cheque Issued by the defendant for Rs.45,000/-, dated 15-06-2013.

Ex.A6 : Cheque Issued by the defendant for Rs.45,000/-, dated 15-06-2013.

Ex.A7 : Cheque Return Memo, dated 19-06-2013.

Ex.A8 : Cheque Return Memo, dated 19-06-2013.

Ex.A9 : Cheque Return Memo, dated 19-06-2013.

Ex.A10 : Registered Lawyer's Notice, dated 05-07-2013.

Ex.A11 : Acknowledgement Card, dated 15-07-2013.

Ex.A12 : Registered Lawyer's Notice, dated 24-04-2014.

Ex.A13: Acknowledgement Card, dated 25-04-2014.

III AJCJ/VSP.

8

Date of Presentation : 12-06-2015 Date of Filing : 25-06-2015

IN THE COURT OF III ADDITIONAL JUNIOR CIVIL JUDGE:

VISAKHAPATNAM.

PRESENT: Smt. P. Sai Sudha

III Additional Junior Civil Judge, Visakhapatnam.

Friday, the 28th day of April, 2017

O.S.No.438/2015

Between:

Deepthi Controls, Represented by its Proprietor Sri D.Suresh Kumar, S/o Satyanarayana, Hindu, Aged 38 years, having its office at D.No.50-92-39, NH-5 Point, Sankaramatham Road, Santhipuram, Visakhapatnam.

...Plaintiff

And :

Star Battery World, Represented by its Proprietor Siriki Yerni Trinadha Rao, S/o Nageswara Rao, Hindu, Aged about 30 years, having its shop at opposite Nataraj Theatre, Thagarapuvalasa Road, Pendurthi, Visakhapatnam-531173, Residing at Opposite Ramalayam, Thandrangi Village, Kottam Post, Jami Mandal, Vizianagaram District – 535148.

...Defendant

This suit is for recovery of Sum of Rs.1,85,584-64/- subsequent interest @ 24% from the date of institution of the suit till realization and costs of the suit.

Value of the suit for the purpose of Court fee and Jurisdiction is Rs.1,80,045/- and Court fee of Rs.4,326/- of Section 20 (c) of APCF and SV Act.

This suit is coming on 02-03-2017 for final hearing before me in the presence of Sri R.S.Ravi, Advocate for the Plaintiff and of Sri J.G.Naidu, Advocate for the defendant and the same having stood over for consideration to this day, this court doth order and

D E C R E E

1. that the defendant do pay to the plaintiff for a sum of Rs.1,85,584.64/- (Rupees One Lakh Eighty Five Thousand Five Hundred and Eighty Four and Sixty Four Paise only) with subsequent interest thereon @ 12% p.a from the date of suit till the date of decree and thereafter @ 6% p.a till realization; and

2. that the defendant do also pay to the plaintiff for a sum of Rs.4,393/- (Rupees Four Thousand Three Hundred and Ninety Three only) towards Institutional costs of the suit.

9

Given under my hand and the seal of this Court, this the 28th day of April, 2017.

III Addl Junior Civil Judge, Visakhapatnam.

MEMORANDUM OF COSTS

* * *

For Plaintiff: For Defendant:

No costs memo is filed No costs memo is filed.

Stamps on Vakalat: 2-00

Stamps on Plaint: 4,326-00

Stamps on Process : 65-00 -------------- Institutional Costs allowed : 4,393-00 --------------

Verified by CMO

III AJCJ/VSP.

1 //FAIR//

IN THE COURT OF III ADDITIONAL JUNIOR CIVIL JUDGE:

VISAKHAPATNAM.

PRESENT: Smt. P. Sai Sudha

III Additional Junior Civil Judge, Visakhapatnam.

Friday, the 28th day of April, 2017

O.S.No.575/2015

Between :

Smt Katari Varalakshmi, W/o Late Mahalakshmi Naidu, Hindu, Aged 44 years, R/o D.No.60-15-9, Prakash Nagar, Malkapuram, Visakhapatnam – 530011.

...Plaintiff

And :

1. Sri Chintala Venkata Ramana, S/o Appa Rao, Hindu, Aged 48 years, R/o D.No.60-18-20, Prakash Nagar, Malkapuram, Visakhapatnam.

2. Sri Chintala Ramu, S/o Appa Rao, Hindu, Aged 45 years, R/o D.No.60-18- 20, Prakash Nagar, Malkapuram, Visakhapatnam.

...Defendants

This suit is coming on 19-04-2017 for final hearing before me in the presence of Sri P.Jai Sankar, Advocate for Plaintiff and of Sri S.K.Shareef, Advocate for Defendants and the same having stood over for consideration to this day, this Court delivered the following :

J U D G M E N T

This suit is filed by the plaintiff against the defendants to grant

Permanent Injunction, restraining defendants, their men, agents and persons acting under their instructions or claiming through them from ever interfering in any manner whatsoever in the 3 feet lane on the Western side of the plaint schedule property including not to further construct structures.

2.The brief averments of the plaint, are as follows :

The plaintiff is the absolute owner of the RCC building consisting of

Ground and first floor in an extent of 66.66 Square yards, situated at S.No.125 at D.No.60-15-9 at Prakash Nagar, Malkapuram, Visakhapatnam. Originally, the plaintiff's maternal grand father has purchased site from Rathula 2

Ramanjaneeya on 15-09-1963 and as he died intestate, the plaintiff and her husband acquired the property and they were in physical possession of the same. Later, the husband of the plaintiff died on 17-12-1991 leaving behind, the plaintiff as legal heir. Then, she has constructed ground and first floor in the said site and her name was mutated in the records of GVMC. Since, the date of construction, she has been in continuous possession and enjoyment of the plaint schedule property and also she has been paying tax in respect of the property.

3.While the matter stood thus, defendants who are residing in a tiled house on the Western side of the plaint schedule property demolished the said tiled house and they are constructing ground and the first floor RCC building.

With an intention to encroach into 3 feet lane, which was left by the plaintiff for her ingress and aggress, they are trying to occupy the same and cause obstruction to the plaintiff. Then, the plaintiff has lodged a report with the

SHO, Malkapuram Police Station and on 14-07-2015, defendants herein executed a Raji Patram at Police Station and agreed to construct their house in their place only and not to damage the Western side wall of the plaintiff. On 30-07-2015, with an intention to grab the property, the defendants tried to occupy the 3 feet lane and tried to construct Pucca structures in the schedule property and to demolish the property situated towards Western side of plaint schedule property. On timely intervention of neighbours, plaintiff resisted the acts of the defendants, who left the place proclaiming that they will come again and occupy her property. Hence, she has filed the present suit to grant

Permanent Injunction, restraining defendants, their men from interfering with peaceful possession and enjoyment of her property and also from encroaching 3 into 3 feet width of property situated towards the Western side of her property.

4.In response to the summons received, D1 has filed written statement traversing allegations in the plaint and inter alia contending that the plaintiff herein has filed a suit against them i.e. OS.No.1712/2008 seeking the same relief and it was decreed in favour of the plaintiff. Eventually, the plaintiff filed EP.No.105/2009 and it was dismissed. Therefore, the present suit is hit by Res-Judicata and not maintainable. Moreover, in fact the plaintiff has encroached into defendants property by force and filed this suit, in order to harass them. Hence, prayed to dismiss the suit with exemplary costs. D2 filed a memo adopting the written statement filed by D1.

5.After perusing the pleadings and document on record, the following issues are settled for trial, by my learned predecessor :

(1) Whether the suit is hit by Res-Judicate as pleaded by defendants, in view of decree and Judgment in OS.No.1712/2008 or not ?

(2) Whether the plaintiff left 3 feet place towards Western side of the plaintiff's property as pleaded or not ?

(3) Whether the defendants tried to encroach into the 3 feet lane as alleged by the plaintiff or not ?

(4) Whether the plaintiff is entitled for Permanent Injunction as prayed for or not ?

(5) To what relief ?

6.During the course of trial, the plaintiff has got examined herself as

P.W.1 and Exs.A1 to A4 are exhibited. P.W.2 was also examined. On behalf of defendants, no oral or documentary evidence was adduced.

7.Heard the learned counsel for the plaintiff, who submitted that even though the plaintiff is in peaceful possession and enjoyment of her property, the defendants who are residing towards Western side of the suit schedule 4 property are trying to encroach into 3 feet lane left by the plaintiff for her ingress and aggress and they are also trying to demolish the Compound Wall of the plaintiff. He submitted that the evidence placed on record clearly establishes the case of the plaintiff and hence prayed to decree the suit in favour of the plaintiff.

8.No argument was advanced on behalf of the defendants.

9.ISSUE No.1:-

It is the plea of the defendants that the plaintiff has earlier filed a suit in

OS.No.1712/2008 seeking same relief in respect of the same schedule

property and it was decreed in her favour and she has also filed

EP.No.105/2009 and hence the present suit is barred by the principle to Res-

Judicata. Though, such a plea was taken by defendants, they did not file a copy of Decree and Judgment in OS.No.1712/2008, in order to enable this

Court to ascertain whether O.S.No.1712/2008 was filed by the plaintiff in respect of the same cause of action, same schedule property, seeking same relief. Therefore, this Court is of opinion that in the absence of the evidence by defendants, it cannot be said that the present suit is hit by Res-Judicata.

Therefore, Issue No.1 is answered against defendants.

10.ISSUE Nos.2 & 3:-

As Issues No.2 and 3 are interlinked, they are being dealt with together.

In order to prove her case, the plaintiff got examined herself as P.W.1 by filing an evidence affidavit in lieu of her examination-in-chief. The contents of her evidence affidavit are not restated to avoid repeatition. Exs.A1 to A4 are exhibited on behalf of the plaintiff. Ex.A1 is Original Tax Pass Book issued in the name of the plaintiff; Ex.A2 is Original Mee Seva Receipts two in number 5 issued on payment of House Tax and Tap Tax in the name of the plaintiff,

dated 20-06-2014; Ex.A3 is Original Receipt issued by Central Complaint

Cell, Office of Commissioner of Police, Visakhapatnam and Ex.A4 is Positive

Photographs two in number along with CD.

11.Further, P.W.2, who is neighbour of the plaintiff was examined on behalf of the plaintiff. His evidence is to the effect that the defendants who are residing in tiled house situated towards Western side of the plaint schedule property are trying to occupy the three feet lane on Western side of the plaintiff's building and also that they are trying to demolish Western side wall of the plaintiff's property. Though, defendants failed to cross examine P.Ws.1 and 2, inspite of several opportunities, a perusal of documents filed by the plaintiff does not clarify whether she has left 3 feet lane towards the Western side of her property for her ingress and aggress. Ex.A1, Original Tax Pass

Book only shows that the plaintiff is the owner of the building at D.No.60-15- 9 and that she has been paying property tax in respect of the same. Similarly,

Ex.A2 Original Mee Seva Receipts two in number also show that the plaintiff has been paying house tax and tap tax. Ex.A3 Original Receipt issued by

Central Complaint Cell, Office of Commissioner of Police, Visakhapatnam is in no way helpful in the facts and circumstances of the present case. Ex.A4

Photographs also are not of much significance.

12.As it is pleaded by the plaintiff that she has left 3 feet lane towards

Western side of her property for her ingress and aggress, it is for the plaintiff to prove by means and bounds that she has left the 3 feet lane out of her property. Therefore, as she failed to prove that she has left 3 feet lane, it cannot be decided whether the defendants tried to encroach into 3 feet lane.

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Therefore, in view of the evidence discussed above, this Court is of the opinion that the plaintiff failed to show that she has left 3 feet lane for her ingress and aggress towards Western side of her property. Accordingly, Issues

No.2 is answered against the plaintiff. In view of findings on Issue No.2 ,

Issue No.3 is also answered against the plaintiff.

14.ISSUE No.4:-

As the plaintiff failed to prove that she has left 3 feet place towards

Western side of her property and that defendants tried to encroach into 3 feet lane, this Court is of opinion that she is not entitled for the relief of Permanent

Injunction as prayed for.

15.ISSUE No.5:-

In the result, the suit is dismissed without costs.

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

me in open Court, this the 28th day of April, 2017.

III Addl Junior Civil Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

Witness examined

For Plaintiff : For Defendant : NIL

P.W.1 : Katari Vara Lakshmi

P.W.2 : B.Venu Gopala Krishna

Documents marked

For Plaintiff : For Defendant : Nil

Ex.A1 : Original Tax Pass Book issued in the name of the plaintiff.

Ex.A2 : Original Mee Seva Receipts two in number issued on payment of House Tax and Tap Tax in the name of the plaintiff, dated 20-06-2014.

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Ex.A3 : Original Receipt issued by Central Complaint Cell, Office of Commissioner of Police, Visakhapatnam.

Ex.A4 : Positive Photographs two in number along with CD.

III AJCJ/VSP.

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Date of Presentation : 03-08-2015Date of Filing : 03-08-2015

IN THE COURT OF III ADDITIONAL JUNIOR CIVIL JUDGE:

VISAKHAPATNAM.

PRESENT: Smt. P. Sai Sudha

III Additional Junior Civil Judge, Visakhapatnam.

Friday, the 28th day of April, 2017

O.S.No.575/2015

Between :

Smt Katari Varalakshmi, W/o Late Mahalakshmi Naidu, Hindu, Aged 44 years, R/o D.No.60-15-9, Prakash Nagar, Malkapuram, Visakhapatnam – 530011.

...Plaintiff

And :

1. Sri Chintala Venkata Ramana, S/o Appa Rao, Hindu, Aged 48 years, R/o D.No.60-18-20, Prakash Nagar, Malkapuram, Visakhapatnam.

2. Sri Chintala Ramu, S/o Appa Rao, Hindu, Aged 45 years, R/o D.No.60-18- 20, Prakash Nagar, Malkapuram, Visakhapatnam.

...Defendants

This suit is for grant of permanent injunction restraining the defendants, their men, agents and all persons acting under their instructions or claiming through them from ever interfering in any manner whatsoever in the 3 feet lane on the Western side of the plaint schedule property including not to further construct structures and not to damage the Western side wall of plaint schedule property which are shown in the plaint plan and for costs of the suit.

Value of the suit for the purpose of Court fee and Jurisdiction is Rs.10,000/- and Court Fee of Rs.786/- of Section 26 (c) of APCF and SV Act.

This suit is coming on 19-04-2017 for final hearing before me in the presence of Sri P.Jai Sankar, Advocate for Plaintiff and of Sri S.K.Shareef, Advocate for Defendants and the same having stood over for consideration to this day, this Court doth order and

D E C R E E

1. that the suit be and the same is hereby dismissed; and

2. that there be no order as to costs.

Given under my hand and the seal of this Court, this the 28th day of April, 2017.

III Addl Junior Civil Judge, Visakhapatnam.