Sri P. Siva Ram Prasad

Page 1 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

IN THE COURT OF THE SENIOR CIVIL JUDGE

CHODAVARAM

PRESENT: P.SIVA RAM PRASAD,

SENIOR CIVIL JUDGE,

CHODAVARAM.

MONDAY, THIS THE 31 st DAY OF DECEMBER, 2018.

APPEAL SUIT No. 33/2011

Between:

Rayapureddi Appala Naidu, S/o Sanni Babu, Hindu, Age 61 years, Mazdoor in P.W.D., Resident of Devarapalli Village and Mandal, Visakhapatnam District.

… Appellant/Plaintiff

And

1.Ganivada Narayana Murthy, S/o Not known, Age 79 years, Hindu,Retired Teacher, Resident of Devarapalli Village and Mandal, Visakhapatnam District. (Died on 15-04- 2016)

2.Koruprolu Chandri Naidu, S/o Jagannadham, Age 47 years, Hindu, Agriculture, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

3.Koruprolu Appala Naidu, S/o Chandri, Age 63 years, Hindu, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

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Page 2 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

4.Koruprolu Tata, S/o Pydithalli, Age 64 years, Hindu,Resident of Devarapalli Village and Mandal, Visakhapatnam District.

5.Koruprolu Dongodu, S/o Chandri, Age 64 years, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

6.Kolli Raju, S/o Demudu, Age 49 years, Hindu, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

7.Kolli Appala Naidu, S/o Appanna (Died)

8.Kolli Appala Naidu, S/o Demudu, Age 62 years, Hindu, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

9.Koruprolu Demudamma, W/o Rama Murthy, Hindu, Age 42 years, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

10.Kolli Rama Lakshmi, W/o Ramakrishna, Hindu, Age 45 years, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

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Page 3 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

11.Koruprolu Lakshmanamma, W/o Chandri Naidu, Hindu, Age 37 years, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

12.Kolli Ramu, S/o Appala Naidu, Hindu, Age 60 years, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

Defendants 9 to 12 added as Legal Heirs of deceased 7th Defendant as per order in I.A.No.613/2007 dated 14-07-2010 as proforma.

13.Ganivada Suramma, W/o late Narayana Murthy, Age 70 years, Hindu, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

14.Ganivada Chitti babu, S/o late Narayana Murthy, Age 40 years, Hindu, Cultivation, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

15.Ganivada Srinu, S/o late Narayana Murthy, Age 25 years, Hindu, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

Legal heirs of 1st Respondent are impleaded

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Page 4 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram as Respondents 13 to 15 as per order in I.A.No.192/2017 dated 22- 08-2017.

…..Respondents/Defendants

AN APPEAL FROM THE DECREE & JUDGMENT DATED 23-06-2011 PASSED BY THE

PRINCIPAL JUNIOR CIVIL JUDGE'S COURT, CHODAVARAM IN

O.S.No.265/2004

(Parties Before the Trial Court are as follows)

Between:

Rayapureddi Appala Naidu, S/o Sanni Babu, Hindu, Age 61 years, Mazdoor in P.W.D., Resident of Devarapalli Village and Mandal, Visakhapatnam District.

… Plaintiff

And:

1.Ganivada Narayana Murthy, S/o Not known, Age 79 years, Hindu,Retired Teacher, Resident of Devarapalli Village and Mandal, Visakhapatnam District. (Died on 15-04- 2016)

2.Koruprolu Chandri Naidu, S/o Jagannadham, Age 47 years, Hindu, Agriculture, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

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Page 5 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

3.Koruprolu Appala Naidu, S/o Chandri, Age 63 years, Hindu, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

4.Koruprolu Tata, S/o Pydithalli, Age 64 years, Hindu,Resident of Devarapalli Village and Mandal, Visakhapatnam District.

5.Koruprolu Dongodu, S/o Chandri, Age 64 years, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

6.Kolli Raju, S/o Demudu, Age 49 years, Hindu, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

7.Kolli Appala Naidu, S/o Appanna (Died)

8.Kolli Appala Naidu, S/o Demudu, Age 62 years, Hindu, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

9.Koruprolu Demudamma, W/o Rama Murthy, Hindu, Age 42 years, Resident of Devarapalli Village and Mandal, Visakhapatnam

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Page 6 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

District.

10.Kolli Rama Lakshmi, W/o Ramakrishna, Hindu, Age 45 years, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

11.Koruprolu Lakshmanamma, W/o Chandri Naidu, Hindu, Age 37 years, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

12.Kolli Ramu, S/o Appala Naidu, Hindu, Age 60 years, Resident of Devarapalli Village and Mandal, Visakhapatnam District.

Defendants 9 to 12 are impleaded as Legal Heirs of deceased 7th Defendant as per order in I.A.No.613/ 2007 dated 14-07-2010 as proforma.

…Defendants

This Appeal is coming on 12-10-2018 for final hearing before me in the

presence of Sri P.Prakasa Rao, Advocate for the Appellant and Sri K.David,

Advocate for Respondents and having been stood over till this day, this Court

delivered the following:

J U D G M E N T

1.This Appeal is filed by the Appellant/Plaintiff against the Respondents/

Defendants requesting the Court to set-a-side the Decree and Judgment passed by

Principal Junior Civil Judge, Chodavaram i.e., Trial Court in O.S.No.265/2004 dated

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Page 7 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram 23-06-2011 whereby the Trial Court dismissed the suit filed by Appellant/Plaintiff without costs.

2.The Appellant in this appeal is the Plaintiff in O.S.No.265/2004 on the file of

Principal Junior Civil Judge, Chodavaram. The Respondents in this appeal are the

Defendants in the said suit. For the sake of convenience and clarity, the

Appellant/Plaintiff is hereinafter referred as ‘’Plaintiff’’. The Respondents/Defendants are hereinafter referred as ‘’Defendants’’, as they are arrayed before the Principal

Junior Civil Judge, Chodavaram. The said Court is hereinafter referred as ‘Trial

Court’ .

3.The record shows that the Plaintiff filed the suit in O.S.No.265/2004 before the

Trial Court requesting to grant permanent injunction in favour of the Plaintiff against the Defendants restraining the Defendants, their men, servants and agents etc., from interfering with his possession and enjoyment over the plaint 'A' schedule which is an extent of Ac.03-98 cents in S.No.121/1 and plaint 'B' schedule which is an extent of

Ac.00-14 cents in S.No.117/10 situated in Devarapalli Village and Mandal within the boundaries described in the plaint 'A' and 'B' schedules.

4.After elaborate trial, the Trial Court dismissed the suit filed by the Plaintiff without costs, hence the Plaintiff is constrained to file the present Appeal with the following grounds of Appeal.

GROUNDS OF APPEAL:-

(a) that the Decree and Judgment of the Trial Court are contrary to law, weight of evidence and probabilities of the case.

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Page 8 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

(b) that the Trial Court ought to have decreed the suit basing on the oral and documentary evidence adduced by him.

(c) that the Trial Court erred in answering issue No.1 against the Plaintiff .

(d) that the Trial Court could not properly weigh Ex.A.1 to Ex.A.4 vis-a- visa Ex.B.1 to Ex.B.4.

(e) that Dw-1 admitted about the partition of properties among the persons whose names are there in Ex.B.1, as such Ac.7-96 cents fell to the share of Plaintiff's father as per the Ex.A.2.

(f) that Dw-1 himself admitted about the separate possession and enjoyment of the properties among Plaintiff and Plaintiff's brother.

(g) that the Trial Court could not place burden of proof properly.

(h) that the Trial Court erred in holding that the Plaintiff ought to have taken steps to produce Will executed by his mother. (I) that the Trial Court failed to draw presumption in favour of the Plaintiff since he filed the Revenue Records where as the Defendants did not rebut the same.

5.For the above said grounds of appeal and also for the other grounds argued by counsel for Plaintiff at time of hearing of this appeal, the Plaintiff prays to allow the appeal and set-a-side the Decree and Judgment passed by the Trial Court and grant permanent injunction in his favour as prayed for in the plaint.

6.After institution of the Appeal, it is registered as A.S.No.33/2011 and notices are ordered to the Defendants. The Defendants engaged Advocate and contested the matter. In the mean time, the Trial Court submitted entire record for consideration in this Appeal on receipt of Appeal intimation given by this Court.

7. Before going to decide the appeal, it is just and proper to extract the pleadings of the Plaintiff in his plaint and pleadings of the Defendants in their written statements so as to understand what exactly the dispute is and to have complete picture of the

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Page 9 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram real controversy between the Plaintiff and Defendants. Hence, respective contentions of the both sides are extracted hereunder.

BRIEF AVERMENTS OF PLAINT:-

8.It is stated by the Plaintiff in the plaint that the Plaintiff is owner and possessor of the plaint schedule lands and those were fell to the share of Plaintiff in the partition with his brother after death of their father and he has been in continuous possession of the plaint schedule lands till date of the suit and realizing produce therefrom, there is a

Mango Tope in some portion of plaint 'A' schedule property and in the remaining portion there are standing sugar cane and red gram plants.

9.It is stated in the plaint that the Defendants are close associates and adjoining land owners of the Plaintiff. Five months before filing the suit, the Defendants approached the Plaintiff and requested to lease out the plaint schedule lands to them but the Plaintiff refused. Then the Defendants requested the Plaintiff through elders, still, the Plaintiff did not agree, as such the Defendants are bore grudge against the

Plaintiff and bent upon to cause loss and harm to the Plaintiff.

10.It is stated in the plaint that the Defendants are having money and man power and they have no respect for law and order. As such, on 28-10-2004, while the

Plaintiff was attending agricultural operations in the plaint schedule lands, the

Defendants attempted to trespass into the plaint schedule lands and cause damage to the mango trees, standing crops but the Plaintiff averted the same with intervention of

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Page 10 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

Kakka Krishna and Simma Kannamma protected his possession, however the

Defendants while leaving the plaint schedule lands, proclaimed that they will occupy the same, if it is so, the Plaintiff will sustain serious loss and the same constrained the

Plaintiff to file the suit for permanent injunction.

11.With the above plaint averments, the suit was filed before the Trial Court. On the other hand, all the Defendants contested the suit filed by the Plaintiff. The Defendants filed their detailed written statement inter-alia denying all the plaint averments. The 2nd

Defendant filed his written statement and the same is adopted by the Defendant Nos 1, 3 to 5, 7 and 8. The 6th Defendant is not filed written statement.

12.It is to be noted here that during pendecy of the suit, the 7th Defendant died. On that the Plaintiff filed I.A.No.613/2007 to implead the Defendants 9 to 12 and the same was allowed and neat copy of plaint has been filed. But, there is no change in the plaint averments or written statement averments.

BRIEF AVERMENTS OF WRITTEN STATEMENT:-

13.According to the contesting Defendants, the 6th Defendant Kolli Raju is henchmen of the Plaintiff. The suit filed by the Plaintiff is not maintainable since the plaint schedule lands are not in existence. The survey numbers, extents and boundaries are not correct. The particulars mentioned in the plaint schedules such as

S.No., extents and boundaries are not correct. The correct boundaries of the plaint schedule lands are

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Page 11 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

East: Land of Rayipureddi Ramu and Appalanaidu

South: Cattle Gorja,

West: The land belongs to Kolli Peda Appala Naidu

North: The lands belongs to Ganivada Narayana Murthy and others.

14.In the land covered by the above said boundaries, the 2nd Defendant is in possession of about Ac.0-25 cents of land and he raised the casurina tope in it in the year, 2004. The 3rd Defendant Koruprolou Appala Naidu has raised sugarcane in about

Ac.0-50 cents of land and he is in possession of the land. The 4th Defendant is in possession of about Ac.0-25 cents land and he is also raised sugarcane tope in it. The 5th Defendant is in possession of Ac.0-50 cents of land and he also raised sugarcane tope in it. The 7th Defendant Kolli Appala Naidu is the son of Kolli Ramulu but not

Appanna. His father name is wrongly mentioned as Appanna in the plaint. The 7th

Defendant is in possession of about Ac.1-00 cents. In tha land he raised sugarcane and redgram during the suit year. The 8th Defendant Kolli Appala Naidu is in possession and enjoyment of Ac.0-25 cents of land and he raised paddy in the said land. One Sirupurapu Demudamma wife of Demudu who is the sister of the Plaintiff is in possession and enjoyment of Ac.0-50 cents of land. All the above said bits of land are in the possession and enjoyment of respective Defendants and Sirupurapu

Demudamma to the knowledge of one and all including the Plaintiff and other

Villagers. All the above said persons i.e., the Plaintiff and Defendants had their common ancestors Kolli Sanni. Rayapureddi Sanni babu and the father of the Plaintiff is the son of one Kannamma who is the daughter of above said Kolli Sanni. All the above said bits of lands are covered in S.No.121-1 and the total land covered by said

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Page 12 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram survey number is.Ac.7-96 cents. One Kolli Chitti, Son of Sanni, the Maternal grand gather of the 3rd and 5th Defendants, the father-in-law of the 1st Defendnt is one of the original Pattadar of said land. So, also Kolli Demullu @ Demudu, son of Appanna the father of the 8th Defendant is also one of the original Pattadar of said land. So, also the 7th Defendant Kolli Appala Naidu is also one of the original Pattadar for the land. Thus, the Defendants ancestors and the 7th Defendant are the Pattadars for the land, covered by S.No.121-1. Thus, the land covered by S.No.121-1 is not yet partitioned among the legal heirs of Kolli Chitti, Kolli Demullu, the 7th Defendant and the Plaintiff.

But it has been enjoyed by the parties to the suit as per their convenience. Thus, the

Defendants are the co-owners of the plaint schedule lands. There is no specific partition among either original Pattadars or the Plaintiff and Defendants in respect of the plaint schedule lands.

15.But, the Plaintiff has obtained the Passbook and title deed and other Revenue

Record behind the back of the Defendants and without any property enquiry. The said documents are not true, valid documents and not binding the Defendants. The

Government also issued Pass Books and title Deeds in favour of 3rd Defendant and

Siripurapu Demudamma in respect of the plaint schedule lands. The Plaintiff and his brother Ramu together entitled for a share of land in the plaint schedule lands. The

Plaintiff is not in exclusive possession and enjoyment of the land covered by

S.No.121-1 and S.No.117-10. Therefore, the Plaintiff is not entitled for equitable relief of injunction against the Defendants who are the co-owners and co-shares to the

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Page 13 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram lands covered by S.No.121-1 and 117-10. Finally, the Defendants prayed to dismiss the suit.

16.Basing on the above pleadings in the plaint and in the written statement, the

Trial Court framed two issues for trial. Which are as follows:-

ISSUES:-

1. Whether the Plaintiff is entitled for permanent injunction against the Defendants and their men as prayed for?

2. To what relief?

WITNESSED EXAMINED:-

17.During trial of the matter, the Plaintiff got examined as Pw-1 to Pw-3. The

Plaintiff got marked Ex.A.1 to Ex.A.4 documents. The 1st Defendant is examined as

Dw-1. Dw-2 to Dw-4 are examined on behalf of the Defendants. Ex.B.1 to Ex.B.5 documents are marked on Defendant’s side.

ARGUMENTS:-

18.The Trial Court, after appreciation of the above said oral and documentary evidence placed before it, has dismissed the suit filed by the Plaintiff. The Trial Court extracted the plaint averments, written statement averments and the evidences from pages 1 to 15. The reasons for the decision of the Trial Court are running from pages

No.15 to 19. The Trial Court did not believe Ex.A.1 stating that there is alteration with regard to S.No.121/1 and also the extent without initials of the concerned officials. The

Trial Court disbelieved Ex.A.2 Ryotwari pass book on the ground it is not visible. The

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Page 14 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

Trial Court placed reliance on Ex.B.1 which contain possession and enjoyment relating to S.No.117 in the name of Kolli Appalanaidu i.e., 7th Defendant and contain possession and enjoyment relating to S.No.121/1 in the name of Kolli Chitti, Kolli

Demudu, Kolli Appala Naidu and Ex.B.2 certificate showing the possession of 3rd

Defendant. The Trial Court also examined Ex.B.3 to B.5 documents marked on behalf of the Defendants. Finally, the Trial Court held that the Plaintiff could not prove his possession over plaint 'A' and 'B' schedule lands and could not rebut the onus lies on his shoulders. Ultimately, the Trial Court proceeded to dismiss the suit filed by the

Plaintiff.

19.At the time of submissions of arguments, the learned counsel for the Plaintiff invited attention of Court on various aspects more particularly saying that one

Rayapureddi Sanni babu is father of the Plaintiff (Rayapureddi Appala Naidu) and

Rayapureddi Ramu. The said two brothers partitioned Ac.7-96 cents and each got

Ac.3-98 cents and the Plaintiffs started raising mango tope. He argued that the

Defendants failed to produce any documents to prove their contest. He submitted that the total extent of Ac.7-96 cents is divided in to two parts and the divided extent is mentioned in Ex.A.1 Pattadar Pass Book issued by Revenue Authorities and therefore the corrections are not in any way can be treated as material alterations.

20.The learned counsel for Plaintiff further submitted that the Plaintiff got filed village account No.3 adangal of the years 2002 to 2004 which is the suit year showing name of his father and Pws 2 and 3 are examined only to speak about the partition of

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Page 15 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

Ac.7-96 cents among Plaintiff and his brother. He submitted that the Defendants filed

Ex.B.4 Pattadar Pass Book of one Siripurapu Demudamma but she is not a party in this suit and therefore under guise of a not relevant document the suit of the Plaintiff cannot be dismissed. He submits that Ex.B.5 adangal filed by the Defendants is subsequent to the suit and the own witnesses of Defendants namely Dw-2 and Dw-3 admitted the title of the Plaintiff over the plaint schedule lands.

21.Per contra, the counsel for the Defendants argued that as per settlement fair adangal, there are four pattadars namely Kolli Chitti, Rayapureddi Sanni Babu, Kolli

Demudu, Kolli Appala Naidu to an extent of Ac.7-96 cents in S.No.121 but the father of Plaintiff is not the exclusive pattadar of total Ac.7-96 cents. He argued that the said

Ac.7-96 cents is divided into four parts as Ac.1-99 cents each, so the Plaintiff’s father got only Ac.1-99 cents but not total Ac.7-96 cents. According to the counsel for

Defendants, the Plaintiffs altered the entries in Pattadar Pass Books and other revenue records. He submitted that the Trial Court rightly held that there are material alterations in the Revenue Records filed by Plaintiff and the same disentitle the

Plaintiff for permanent injunction.

22.The counsel for the Defendants submitted that the Plaintiff and Defendants are co-owners as such injunction cannot be granted against the Defendants. Moreso, there is no cause of action for the suit, the evidence of Pw-1 is that there is casurina tope in the schedule lands whereas according to Ex.A.3 there is red gram.

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Page 16 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

POINTS FOR CONSIDERATION:-

23.Keeping in mind the above, detailed arguments submitted by counsel for Plaintiff and Defendants, the oral and documentary evidence is re-examined in the light of said submissions. Then, the points emerged for consideration are as follows:

1) Whether the Plaintiff has got Ac.3-98 cents out of Ac.7-96 cents in partition alongwith his brother Ramu and he is in possession and

enjoyment said Ac.3-98 cents exclusively in such way?

2) Whether the corrections in the documents filed by the Plaintiff are materially altered?

3) Whether the Plaintiff could substantially prove his possession and enjoyment over plaint schedule lands as on date of filing of the suit with semblance of entitlement and whether there was threat of his dis-possession by the Defendants to grant permanent injunction as prayed for?

4) Whether the findings of this Trial Court are acceptable or the same warrants any interference as prayed for by the Plaintiff (Appellant)?

5) To what relief?

FINDINGS ON THE POINTS:-

24.In view of the above framed points, the first thing which has to be looked into is whether the Plaintiff’s father i.e., Rayapureddi Sanni Babu has got Ac.7-98 cent exclusively. The plaint averments goes to show that the plaint 'A' schedule is Ac.3-98 cents and plaint 'B' schedule land is Ac.0-14 cents in S.Nos.121-1 and 117-10 respectively. The written statement of the Defendants is silent as to what is the contest of the Defendants in respect of plaint 'B' schedule Ac.0-14 cents.

25. So, as far as plaint 'B' schedule is concerned it can be treated that the parties are not at dispute. The Plaintiffs while examined as Pw-1, he has repeated all the plaint averments. There is no deviation in between the evidence of Pw-1 and plaint

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Page 17 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram averments. The Plaintiff got marked Ex.A.1 to Ex.A.4 documents. The counsel for the

Defendants cross examined Pw-1 about the relationship between the parties to the suit. It was suggested to Pw-1 whether the one Reddy Pentamma is sister of his father

Sanni Babu. By looking into the above suggestion given to Pw-1 during cross examination by counsel for Defendants, it is very clear that according to Defendants, the Plaintiff’s father had a sister by name Reddi Pentamma. The Defendants took that plea for the first time in the cross examination and that there was partition between

Reddi Pentamma who is sister of Plaintiff’s father and Plaintiff’s father. But this version is not there in the written statement or in the evidence offered by Defendants.

26.There is no oral or documentary evidence adduced by the Defendants to show that Reddi Pentamma is sister of Plaintiff’s father and there was partition among them.

So, it is not possible to believe that the Plaintiff has not got Ac.3-98 cents. In this context, the documents filed by the both parties are very important rather than the oral evidence of witnesses.

27.The Plaintiff filed Ex.A.1 in which it is very clearly mentioned that the Plaintiff has been in possession and enjoyment of Ac.3-98 cents in S.No.121/1. It is true that there is correction in extent of the Ac.3-98 cents. When the said correction is carefully examined, it is very clear that Ac.3-980 cents is initially noted and last digit ‘’0’’ is strike out. That is only the correction. The total extent is also noted at the end of the extents as Ac.5-80 cents. There are total 5 entries in the Ex.A.1 Pattadar Pass Book those are as follows:

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Page 18 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

1.S.No.117-6 Ac.0-07 cents.

2.S.No. -10 Ac.0-14 cents.

3.S.No.121-1 Ac.3-98 cents.

4.S.No.130-14Ac.0-96 cents.

5.S.No.136-1 Ac.0-60 cents.

Total extent is Ac.5-80 cents.

28.In case the extent is really altered, the correction can be found in the total extent also and therefore the said correction in Ex.A1 is not material alteration as observed by the Trial Court. Further, the Plaintiff filed Ex.A.2 long Pass Book issued by Revenue

Authorities in which it is mentioned that an extent of Ac.7-96 cents is the property of

Rayapureddi Sanni Babu who is father of Plaintiff. Ex.A.3 is adangal for fasali 1412 containing the entry that total extent of S.No.121-1 is Ac.7-96 cents and the Plaintiff is in possession and enjoyment of Ac.3-98 cents. Ex.A.4 is the Land Revenue Receipt.

All exhibits Ex.A.1 to Ex.A.4 clearly goes to show that Ac.7-96 cents belong to Plaintiff father Rayapureddi Sanni Babu and during partition between Plaintiff and his brother

Ramu, they each got Ac.3-98 cents.

29. Pw-2 also clearly deposed about the said possession and enjoyment of Plaintiff over Ac.3-98 cents rounded to Ac.4-00 cents both in his chief and cross examinations.

Pw-3 also supported the version of the Plaintiff and there are no important elicitations in their cross examination. Surprisingly no rebuttal evidence has been offered by the

Defendants as against the documents Ex.A.1 to Ex.A.4.

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Page 19 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

30.Now coming to the documents filed by Defendants, they mainly relied on Ex.B.1 settlement adangal i.e.,Ex.B.1 in respect of Ac.7-96 cents for S.No.121-1. In this ExB1, the names of Kolli Chitti, Kolli Demudu, Kolli Appalanaidu and Rayapureddi Sanni

Babu are noted. The first named person Kolli Chitti is not party in the suit. None of the family members are either Defendants or Plaintiffs. Second named person is Kolli

Demudu. As per the cause title, 6th Defendant and 8th Defendant are sons of this Kolli

Demudu, but as per written statement of 2nd Defendant, the lands are not partitioned among legal heirs of Kolli Chitti, Kolli Demudu, the 7th Defendant and Plaintiff. In case the said version of Defendants is really true, how the Plaintiff has obtained Pattadar

Pass Book for his Ac.3-98 cents is not explained by Defendants.

31.At the same time, the Defendants contended that Ac.0-50 cents is in the possession and enjoyment of 3rd Defendant,Ac.0-25 cents is in possession and enjoyment of the 4th Defendant, Ac.0-50 cents is in possession and enjoyment of the 5th Defendant, Ac.1-00 cent is in possession and enjoyment of the 7th Defendant, and

Ac.0-25 cents is in possession and enjoyment of the 8th Defendant and Ac.0-50 cents is in possession and enjoyment of Siripurapu Demudamma who is sister of Plaintiff.

32.As already stated, the Defendants pleaded on one hand that there was no partition of Ac.7-96 cents. Then, how the above Defendants are in possession and enjoyment of individual extents is a question left un-answered by the Defendants.

Thus, Ex.B.1 to Ex.B.5 documents filed by the Defendants are not useful as rebuttal evidence to discard the positive and acceptable evidence of the Plaintiff. The

Senior Civil Judge

Chodavaram

Senior Civil Judge,

Chodavaram

Page 20 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

Defendants filed Ex.B.4 Pattadar Pass Book of one Siripurapu Demudamma showing

Ac.0-50 cents in S.No.121-1. But, this Siripurapu Demudamma is not examined. So,

Ex.B.4 cannot be looked into. As rightly argued by counsel for Plaintiff, the said

Siripurapu Demudamma is a 3rd party to the suit. Hence, her document cannot be considered to discard the version of Plaintiff.

33.Ex.B.5 is adangal for the year 2010 containing individual extents held by

Defendants but this Ex.B.5 is not useful for the Defendants because the version of the

Defendants is basically that there was no partition of Ac.7-96 cents in S.No.121-1.

Further, Ex.B.5 is issued on 17-03-2011 and therefore it is not possible to consider the said document being subsequent to suit. The said document is obtained just three months before passing Judgment in the suit by the Trial Court. In these circumstances,

Ex.B.5 cannot be looked into.

34.The Plaintiff has relied on Ex.A.1 Pattadar Pass Book issued by the Revenue

Authorities after due enquiry. Ex.A.2 is also long Pattadar Pass Books issued by the

Revenue Authorities much before A.P. Pattadar Pass Book and Rights in Land Act, 1971 came into operation. Ex.A.3 is the adangal relating to the suit year. Ex.A.4 is the

Land Revenue Receipt. All these documents are having evidentiary value and those documents cannot be discard on flimsy grounds. Particularly Ex.A.1 is having statutory presumption Under Section 6 of the said Act stating that every entry in the record of rights shall be presumed to be true until contrary is proved.

Senior Civil Judge

Chodavaram

Senior Civil Judge,

Chodavaram

Page 21 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

35.Therefore, it is not proper to discard the evidence of Pws 1 to 3 and Ex.A.1 to

Ex.A.4. The evidence of Pws 1 to 3 is amply supported by documents and their evidence is not shaken in the cross examination. In view of the above reasons, the findings of the Trial Court cannot be upheld. The Defendants could not substantiate their contentions through acceptable, oral and documentary evidence. Dw-1 though deposed the written statement averments in his chief examination, but in the first lines of his cross examination, he admitted that he has no right over the plaint schedule property. He further admitted that he has not obtained 10(1) adangal. These two admissions are enough to hold that the Defendants are not having any right over the plaint schedule lands.

36.There are similar admissions in the cross examination of Dw-3 and Dw-4 as well. Therefore, when the oral and documentary evidence available on record is carefully examined, it is very clear that the Plaintiff father by name Rayapureddi Sanni

Babu is the recorded owner of Ac.7-96 cents in S.No.121-1, out of which Ac.3-96 cents fell to the share of Plaintiff in partition alongwith his brother Rayapureddi Ramu. The said Ac.3-96 cents is none other than the plaint 'A' schedule property.

37.In a suit for permanent injunction, the Plaintiff need not prove his title over the plaint schedule property. It is just sufficient for the Plaintiff to prove his possession and enjoyment as on the date of filing of suit and attempt of the Defendants to interfere with his possession and enjoyment. As already discussed, the evidence of Pws 1 to 3

Senior Civil Judge

Chodavaram

Senior Civil Judge,

Chodavaram

Page 22 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram and Ex.A.1 to Ex.A.4 establish the uninterrupted possession and enjoyment of the

Plaintiff.

38. The Plaintiff clearly stated in the plaint and also in his evidence that on 28-10- 2004, while he was attending Agricultural operations, the Defendants attempted to trespass into his land and due to intervention of Kakkala Krishna and Kannamma he averted the acts of the Defendants. The above said Kakkala Krishna is examined as

Pw-3 and he stated about the threat given by the Defendants to interfere with the possession and enjoyment of the Plaintiff over the plaint schedule lands. Therefore, the Plaintiff successfully established the two essential elements of permanent injunction namely (1) his possession and enjoyment as on the date of filing of the suit a (2) attempt of the Defendants to interfere with his peaceful possession and enjoyment.

39.Because the Plaintiff is successful in establishing the above two ingredients through the oral and documentary evidence placed before the Court, the Plaintiff deserves a decree for permanent injunction as prayed for.

40.Thus, the findings of the Trial Court cannot be upheld in view of the positive and acceptable evidence showing the possession of Plaintiff over the plaint schedule lands with semblance of entitlement. Accordingly, the above framed points are answered in favour of the Plaintiff against the Defendants as follows :

1) that the Plaintiff has got Ac.3-98 cents out of Ac.7-96 cents in partition alongwith his brother Ramu and he is in possession and enjoyment said Ac.3-98 cents exclusively in such way.

Senior Civil Judge

Chodavaram

Senior Civil Judge,

Chodavaram

Page 23 of 23 Fair Judgment in A.S.No.33/2011 dated 31-12-2018. on the file of Senior Civil Judge’s Court, Chodavaram

2) that the corrections in the documents filed by the Plaintiff are not material alterations.

3) that the Plaintiff could substantially prove his possession and enjoyment over the plaint schedule lands as on date of filing of the suit with semblance of entitlement and the threat of his dis-possession by the Defendants to grant permanent injunction as prayed for.

4) that the findings of this Trial Court are not acceptable and those findings warrant interference as prayed for by the Plaintiff i.e, Appellant.

POINT NO.5 AND RESULT:-

41.In the result, the Appeal is allowed but without costs. The Decree and Judgment of Trial Court i.e., Principal Junior Civil Judge, Chodavaram passed in O.S.265/2004

dated 23-06-2011 is hereby set-a-side. The Plaintiff is granted permanent injunction

restraining the Defendants, their men, servants and agents etc., from ever interfering with his possession and enjoyment over plaint 'A' and 'B' schedule lands as prayed for in the plaint.

Typed to my dictation by the Stenographer Gr-I who is working on deputation at Senior

Civil Judge’s Court, Chodavaram, in the computer provided to the Stenographer,

corrected by me and then pronounced by me in open Court, on this the 31 st day of December, 2018.

Senior Civil Judge

Chodavaram

APPENDIX OF EVIDENCE

No additional oral and documentary evidence is adduced on either side in this Appeal.

Senior Civil Judge

Chodavaram

Senior Civil Judge

Chodavaram

Senior Civil Judge,

Chodavaram

Page 1 of 10 in Fair Judgment in S.C. No.116/2016 dt. 31.12.2018 on the file of Asst. Sessions Judge Court, Chodavaram.

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE AT CHODAVARAM.

Present: P. SIVARAM PRASAD, Assistant Sessions Judge, Chodavaram.

MONDAY, THIS THE 31stDAY OF DECEMBER, 2018

SESSIONS CASE NO. 116/2016

(Cr. No.150/2015 of ARAKUVALLEY

POLICE STATION)

Name of the State Represented by the Sub-Inspector of Police, ComplainantArakuvalley Police Station. Name of the AccusedA-1. Korra Muthyalamma, W/o Ramdasu, Age 45 years, ST Parangipurja by caste, Cultivation, Polamguda Village, Gannela Post, Arakuvalley Mandal.

A-2. Korra Ramdasu, S/o Late Jaggu, Age 50 years, ST Parangipurja by caste, Cultivation, Polamguda Village, Gannela Post, Arakuvalley Mandal.

A-3. Korra Appanna, S/o Ramdasu, Age 20 years, ST Parangipurja by caste, Cultivation, Polamguda Village, Gannela Post, Arakuvalley Mandal.

ChargeUnder Section 306 r/w 34 IPC Plea of AccusedPleaded Not Guilty Finding of the JudgeFound not Guilty Sentence or OrderIn the result, the Accused No.1 to Accused No.3 are found not guilty for the offence Under Section 306 r/w 34 IPC. They are acquitted for the said offence Under Section 235(1) Cr.P.C. The bail bonds of the Accused shall be in-force for a period Six months as per Section 446-A of Cr.P.C. There is no case property in this case.

Prosecution Additional Public Prosecutor, Chodavaram, conducted byAssistant Sessions Judge's Court, Chodavaram.

Accused is defended Sri V.Venkata Rao, by Advocate, Chodavaram.

Assistant Sessions Judge,

Chodavaram.

Page 2 of 10 in Fair Judgment in S.C. No.116/2016 dt. 31.12.2018 on the file of Asst. Sessions Judge Court, Chodavaram.

J U D G M E N T

1)The Sub-Inspector of Police, Arakuvalley filed charge sheet against the Accused alleging the offence Under Section 306 r/w 34 IPC in Cr.No.150/2015 of Arakuvalley

Police Station.

BRIEF AVERMENTS OF THE CHARGE SHEET:-

2)The brief averments of the charge sheet are that Accused are resident of

Polamguda Village, Gannela Panchayat, Arakuvellay Mandal and the Defacto

Complaint Lw-1 is also native of the same locality.

3)It is stated in the charge sheet that Lw-1 is Defacto Complaint and husband of the deceased, Lw-2 is the daughter of the deceased. Lw-3 and Lw-4 are the father and sister of the deceased. Lw-5 to Lw-7 are eye witnesses. Lw-8 and Lw-9 are the mediators for scene observation report. Lw-10 to Lw-12 are inquest panchayatdars.

Lw-13 is the Assistant Director, RFSL, Visakhapatnam. Lw-14 is Medical Officer,

Community Health Center, Arakuvalley. Lw-15 and Lw-16 are the Investigating

Officers. The offence in this case took place on 03-12-2015 at 17:00 hours, at agricultural well of Swabi Ramu, near Polamguda Village.

4)It is further stated in the charge sheet that Lw-1 Gubbai Govinda, S/o Ammanna is a resident of Polamguda Village, Gannala Panchayat and living by doing coolie and his marriage was performed with the deceased Motti about 13 years back. They are blessed with three children by name 1. Priyanka Rani, 2. Ganesh and 3. Sanjay

Kumar and since one year Accused No.1 and her husband Accused No.2 used to suspect fidelity of the deceased that she had extramarital relation with their son-in-law

Killo Appanna and used to conflict with the deceased about that suspicion.

On 03-12-2015 at about 16-00 hrs Accused No.1 her husband Accused No.2 and her

Assistant Sessions Judge,

Chodavaram.

Page 3 of 10 in Fair Judgment in S.C. No.116/2016 dt. 31.12.2018 on the file of Asst. Sessions Judge Court, Chodavaram.

son Appanna Accused No.3 forcibly took the deceased from her house to Ninnabudda

Temple near Tadaka village and forced her to move around holy stone in two rounds to prove her integrity and made her to promise over the God not to continue her extramarital relation with their son-in-law Killo Appanna and beat her with hands and left her at home on the same day. The deceased felt insulted and committed suicide by jumping into agricultural well of Swabi Ramu.

5)It is further stated in the charge sheet that 04-12-2015 Lw-15, M. Venkata Rao,

Assistant Sub-Inspector of Police, registered the report of Lw-1 as FIR in Cr.

No.150/2015 Under Sections 306r/w 34 of IPC of Arakuvalley PS. During investigation he visited the scene of offence and drafted scene observation report in the presence of

Lw-8 and Lw-9 on 05-12-2015, took photographs and seized incriminating material for analysis and held inquest over the dead body of the deceased in the presence of

Lw-10 to Lw-12 and corpse was sent to Lw-14 for autopsy. He also recorded the statements of witnesses and arrested the Accused on 05-02-2015 and sent them for judicial custody. Lw-16 P. Simhachalam, Sub Inspector of Police, took up investigation from Lw-15. Lw-13 G. Dharaneetha, Assistant Director, RFSL, Visakhapatnam examined the items and opined items are examined and issued RFSL Report. Lw- 14,Dr. S.Srinivasa Raju, Medical Officer who conducted autopsy over the dead body of the deceased opined that cause of death due to drowing followed by cardio respiratory arrest and issued Final Opinion. On completion of on investigation Lw-16 Sub-

Inspector of Police filed charge sheet against the Accused for the offence Under

Section 306 r/w 34 IPC. Hence, the charge.

TAKING COGNIZANCE OF THE CASE AND COMMITTAL:-

6)This case is arising out of Cr. No.150/2015 of Arakuvally Police Station. On fil- ing of the charge sheet it is registered as Sessions Case No.116/2016 on the file of

Assistant Sessions Judge,

Chodavaram.

Page 4 of 10 in Fair Judgment in S.C. No.116/2016 dt. 31.12.2018 on the file of Asst. Sessions Judge Court, Chodavaram.

Judicial First Class Magistrate, Araku and the same is transferred to this court as per orders of Hon’ble District Court, Visakhapatnam in proceedings in Dis.No.6754 dated 09-08-2016 for disposal according to law.

FRAMING OF CHARGE AGAINST THE ACCUSED:-

7)The learned Assistant Public Prosecutor and the defence counsel submitted arguments on charge. After consideration of the entire material on record Accused were examined Under Section 228 Cr.P.C, they pleaded not guilty and denied the offence U/s 306 r/w 34 IPC. Prima-facie case is made out against Accused and hence charge is framed against the Accused for the offence Under Sections 306 r/w 34 IPC.

The charge is read over and explained to Accused, the Accused denied the charge and claimed to be tried. Hence, trial is proceeded with.

WITNESSES EXAMINED DURING TRIAL:-

8)During the course of trial Lw-1 Gubbai Govindu is examined as Pw-1, Lw-2

Gubbai Piryanakarani is examined as Pw-2, Lw-5, Gubbai Madhu is examined

Pw-3, Lw-8 Gubbai Appanna is examined as Pw-4, Lw-10 Vanthala Latchanna is examined as Pw-5, Lw-9 Mordan Kamala is examined as Pw-6, Lw-15 M.Venkata Rao is examined as Pw-7, Lw-16 P. Simhachalam is examined as Pw-8. The prosecution got marked Ex.P.1 to P.14 documents. The evidence of Lw-4 Gubbai Dosudha, Lw-6

Gubbai Dhan Mothi, Lw-7 Gubbai Nageswara Rao, Lw-11 Korra Lavakusa, Lw-12

Naraji Apparao, Lw-13 G. Dhara neetha, Lw-14 Dr.S.Srinivasa Raju is given up by prosecution. Hence, the prosecution side evidence is closed.

9)The Accused were examined Under Section 313 Cr.P.C, explaining them the incriminating material against them appearing in the evidence of prosecution side witnesses.The Accused denied the incriminating material against them in the evidence of Prosecution witnesses and reported no defence evidence.

Assistant Sessions Judge,

Chodavaram.

Page 5 of 10 in Fair Judgment in S.C. No.116/2016 dt. 31.12.2018 on the file of Asst. Sessions Judge Court, Chodavaram.

10)Heard both sides and perused the record.

POINT:-

11) Now the point that arises for consideration is:

Whether the prosecution prove the guilt of Accused beyond all reasonable

doubt for the offence punishable Under Section 306 r/w 34 of IPC.?

FINDINGS ON THE POINT: -

12.To prove the guilt of the Accused beyond all reasonable doubt, the prosecution relied on the evidence of Pws 1 to 8 and also on Ex.P.1 to P.14 documents.

13.The evidence of Pw-1 deposed that Lw-3 Swabi Pentayya is his uncle he is no more. The deceased Gubbai Mothi is his wife and she died because of sever stomach pain, could not sustain the stomach pain, so she jumped in the well and committed suicide. Police obtained his signatures and he do not know anything about this case. In the evidence of Pw-1, the prosecution got marked Ex.P.1 and Ex.P.2 and

Learned Additional Public Prosecutor cross examined Pw-1 but nothing was elicited.

14. The evidence of Pw-2 is similar to the evidence of Pw-1. Ex.P.3 is 161 Cr.P.C statement of Pw-2. Pw-3 deposed that he do not know anything about this case.

Ex.P.4 is 161 Cr.P.C statement of Pw-3.The evidence of Pw-4 is that the deceased in this case is his maternal aunt. She died due to stomach pain but Police taken his signatures on the some papers, Ex.P.5 is his 161 Cr.P.C statement and Ex.P.6 is his signature on scene observation report. The evidence of Pw-5 is that he went to see the dead body on that the Police asked him to put his signature on the inquest report i.e., marked Ex.P.7.The evidence of Pw-6 is that on 05-12-2015 he visited the scene of offence and he signed on request report and on the scene observation report. The evidence of Pw-7 is that he conducted the investigation and handed over further

Assistant Sessions Judge,

Chodavaram.

Page 6 of 10 in Fair Judgment in S.C. No.116/2016 dt. 31.12.2018 on the file of Asst. Sessions Judge Court, Chodavaram.

investigation to Sub-Inspector of Police. Ex.P.10 is First Information Report. Ex.P.11 is

Rough Sketch and Ex.P.12 is Scene observation report. Ex.P.13 is Inquest Report

dated 05-12-2015. Pw-8 deposed that he verified the investigation and done by Pw-7

and he received Ex.P.14 is RFSL report dated 01-01-2016.

15.The Pw-1 to 6 did not support to the prosecution case and their evidence is not helpful to the prosecution case and they turned hostile by the Learned Additional

Public Prosecutor has permit them to hostile.

16.The above evidence goes to show that Pw-1 to Pw-6 turned hostile. There is no incriminating material in the evidence. Pw-7 and Pw-8 are Investigation Officers. But their evidence has no independent value without evidence of main witnesses i.e., Pw- 1 to Pw-6. The offence alleged against Accused is Under Section 306 of IPC. The prosecution is bound to prove the abatement of Accused to commit suicide by deceased Motti on the date i.e., 03-12-2015 but the evidence of Pw-1 to Pw-6 is completely silent about the said abatement. The evidence of Pw-1 to Pw-6 is not covering the essential ingredients of Section 306 of IPC. The common intention of the

Accused is not established through the evidence of Pw-1 to Pw-6. There are no material objects recovered by Pw-7 and Pw-8 to connect the Accused with this case.

The prosecution failed to examined crucial witnesses i.e.,Lw-3, Lw-4, L:w-6, Lw-7,

Lw-11, Lw-12, Lw-13(Expert), Lw-14 (Doctor) to complete chain of circumstances. In such a case the prosecution cannot claim conviction against the Accused. Non examination of said material witnesses is fatal who prosecution case. In the above circumstances the Accused are to be acquitted for the charge Under Section 306 R/w 34 IPC. Accordingly, the above framed point is answered holding that the prosecution prove the guilt of Accused beyond all reasonable doubt for the offence punishable

Under Section 306 of IPC.

Assistant Sessions Judge,

Chodavaram.

Page 7 of 10 in Fair Judgment in S.C. No.116/2016 dt. 31.12.2018 on the file of Asst. Sessions Judge Court, Chodavaram.

RESULT:-

17.In the result, the Accused No.1 to Accused No.3 are found not guilty for the offence punishable Under Sections 306 r/w 34 of IPC. They are acquitted for the said offence Under Section 235(1)of Cr.P.C. The bail bonds of the Accused shall be in- force for a period of Six months as per Section 446-A of Cr.P.C.There is no case property in this case.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court, this the 31st day of December, 2018.

Assistant Sessions Judge, Chodavaram.

APPENDIX OF EVIDENCE

NUMBER OF WITNESSES EXAMINED FOR PROSECUTION

P.W.128-11-2018Gubbai Govindu (Defacto-Complainant)

P.W.228-11-2018Gubbai Prinyanka Rani

P.W.328-11-2018Gubbai Madhu

P.W.428-11-2018Gubbai Appanna

P.W.529-11-2018Vanthala Latchanna

P.W.606-12-2018Mordhana Kamala

P.W.707-12-2018M.Venkata Rao

P.W.807-12-2018P.Simhachalam

NUMBER OF WITNESSES EXAMINED FOR DEFENCE

Nil

NUMBER OF DOCUMENTS MARKED FOR PROSECUTION

Ex.P.1 04-12-2015Signature of Pw-1

Ex.P.204-12-2015161 Cr.P.C statement of Pw-1

Ex.P.304-12-2015161 Cr.P.C statement of Pw-2

Ex.P.404-12-2015161 Cr.P.C statement of Pw-3

Ex.P.505-12-2015 Signature of Pw-4 on inquest report of Pw-4

Assistant Sessions Judge,

Chodavaram.

Page 8 of 10 in Fair Judgment in S.C. No.116/2016 dt. 31.12.2018 on the file of Asst. Sessions Judge Court, Chodavaram.

Ex.P.604-12-2015Signature of Pw-4 on scene observation report

Ex.P.704-12-2015Inquest Report

Ex.P.805-12-2015Signature of Pw-6 on scene observation report

Ex.P.905-12-2015Signature of Pw-6 on inquest report

Ex.P.1004-12-2015First Information Report

Ex.P.1105-12-2015Rough Sketch

Ex.P.1205-12-2015Scene Observation Report

Ex.P.1305-12-2015 Inquest Report

Ex.P.1401-01-2016RFSL Report

NUMBER OF DOCUMENTS MARKED FOR DEFENCE

Nil

NUMBER OF MARENAL OBJECTS MARKED FOR PROSECUTION

Nil

NUMBER OF MARENAL OBJECTS MARKED FOR DEFENCE

Nil

Assistant Sessions Judge,

Chodavaram.

Assistant Sessions Judge,

Chodavaram.

Page 9 of 10 in Fair Judgment in S.C. No.116/2016 dt. 31.12.2018 on the file of Asst. Sessions Judge Court, Chodavaram.

// CALENDAR //

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE AT CHODAVARAM.

Present: P. SIVARAM PRASAD, Assistant Sessions Judge, Chodavaram.

MONDAY, THIS THE 31 st DAY OF DECEMBER, 2018

SESSIONS CASE No. 116/2016

(Cr.No.150/2015 of ARAKUVALLEY

POLICE STATION)

Name of theState Represented by the Sub-Inspector of Police, ComplainantArakuvalley Police Station. Name of the A-1. Korra Muthyalamma, W/o Ramdasu, Age 45 Accused years, ST Parangipurja by caste, Cultivation, Polamguda Village, Gannela Post, Arakuvalley Mandal.

A-2. Korra Ramdasu, S/o Late Jaggu, Age 50 years, ST Parangipurja by caste, Cultivation, Polamguda Village, Gannela Post, Arakuvalley Mandal.

A-3. Korra Appanna, S/o Ramdasu, Age 20 years, ST Parangipurja by caste, Cultivation, Polamguda Village, Gannela Post, Arakuvalley Mandal.

01Date of Offence03-12-2015 02Date of Complaint04-12-2015

03.Date of Apprehension of Accused05-02-2015

04.Whether the Accused are in jail or on bailOn Bail

05.Date of Commitment 20-06-2016

06.Date of commencement of trial28-11-2018

07.Date of closing of trial07-12-2018

08.Date of Sentence or Order31-12-2018

Explanation for delay :

a) In the Committal Court : Vide separate docket extract is herewith enclosed.

Assistant Sessions Judge,

Chodavaram.

Page 10 of 10 in Fair Judgment in S.C. No.116/2016 dt. 31.12.2018 on the file of Asst. Sessions Judge Court, Chodavaram.

b) In this Court: Since the trial in this case was commenced on 28-11-2018. Arguments heard on 28-12-2018 and the Judgment was pronounced by 31-12-2018. The delay is explained as under:

In this case prosecution got examined PWs.1 to PW.8. Ex.P1 to Ex.P.14 are marked. Some witnesses examined in this case are residents of Polamguda Village but any of them are resident of Kinthali Village and other places. The prosecution taken several adjournments to produce witnesses from distant places and also filed witness recall petition. Hence, there is delay in disposal of the case.

RESULT:-

In the result, the Accused No.1 to Accused No.3 are found not guilty for the offence punishable Under Sections 306 r/w 34 of IPC. They are acquitted for the said offence Under Section 235(1) of Cr.P.C. The bail bonds executed by Accused shall be in-force for a period of Six months as per Section 446-A of Cr.P.C.Therefore is no case property in this case.

Assistant Sessions Judge, Chodavaram.

Assistant Sessions Judge,

Chodavaram.

Page 1 of 7 in Fair Judgment in O.S.No.97/2017 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

IN THE COURT OF THE SENIOR CIVIL JUDGE:: CHODAVARAM

PRESENT: P.SIVA RAM PRASAD,

SENIOR CIVIL JUDGE,

CHODAVARAM.

FRIDAY, THIS THE 31 st DAY OF DECEMBER, 2018

O.S.No.91/2017

Between:

Canara Bank, R Bhimamvaram Branch, ButchayyaPeta Mandalam, Visakhapatnam District, represented by its Authorized signatory Sri.Mahammed Iqbal Hussain, S/o Mohammed Khasim, Mualim, Aged about 29 years. (Within the Jurisdiction of Junior Civil

Judge's Court, Chodavaram.)

… Plaintiff

And

1)Arudra Textiles represented by its Proprietor, Vyapara Veedhi. Chodavaram, Visakhapatnam District. (Within the Jurisdiction of Junior Civil

Judge's Court, Chodavaram.)

2)J.Narayana Murthy, S/o Apparao, Age 36 years, Proprietor-Arudra Textiles, Vyapara Veedhi, Chodavaram Mandal, Visakhapatnam District. (Within the Jurisdiction of Junior Civil

Judge's Court, Chodavaram.)

3)Y.Siva Nageswara Rao, S/o Joga Rao, Age 40 years, Hindu, Business, Vyapara Veedhi, Chodavaram Mandal, Visakhapatnam District. (Within the Jurisdiction of Junior Civil

Judge's Court, Chodavaram.)

… Defendants

Senior Civil Judge

Chodavaram

Page 2 of 7 in Fair Judgment in O.S.No.97/2017 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

This suit is coming on 28-12-2018 for final hearing before me in the

presence of Smt P. Nagini, Advocates for the Plaintiff-Bank. The Defendants No.

2 and 3 are set ex-parte on 22-06-2018 and Sri Ch.Suryanarayana, Advocate for

the Defendant No.1 and the matter having stood over for consideration till this

day, this Court delivered the following:

J U D G M E N T

1.This suit is filed by the Plaintiff-Bank against the Defendants for recovery of suit amount of Rs.13,47,076/- (Rupees Thirteen Lakhs Forty Seven Thousand And

Seventy Six only) together with subsequent interest and costs basing on the loan transaction dated 26-02-2015 of Rs.10,00,000/- taken by the Defendants from the

Plaintiff-Bank.

BRIEF AVERMENTS OF THE PLAINT:-

2.The brief averments of the plaint filed by the Plaintiff-Bank are that the

Defendant No.1 is a proprietorship concern, represented by its proprietor i.e.,

Defendant No.2 herein, he approached the Plaintiff-Bank and requested to sanction over draft facilities of Rs.10,00,000/- (Rupees Ten Lakhs only) and made an application on 26.02.2015. That basing on the assurances, promises and representation made by the Defendants, the Plaintiff-Bank sanctioned and disbursed cash credit facility of Rs.10,00,000/- vide Loan Account No.5326261009 to the 1st

Defendant on 26.02.2015 vide sanction memorandum Ref.No.14/15 against hypothecation of stocks and book debts of Defendant No.1 and on the personal guarantee of the Defendants No.2 and 3.

3.It is further stated in the plaint that the Defendants have agreed to repay the said amounts together with interest at the rate of 12.70% per annum and they have agreed to pay the interest as and when accrued and the principal shall be repaid within three years from the date of sanction. That the Defendants have also agreed to all terms and conditions of the sanction letter. The Defendant No.1 represented by

Senior Civil Judge

Chodavaram

Page 3 of 7 in Fair Judgment in O.S.No.97/2017 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

Defendant No.2 had given a declaration that the credit facilities sanctioned to the

Defendant No.1 shall be used exclusively for the purpose of working capital requirements and the Defendant No.2 is the sole proprietor, of the Defendant No.1 and he shall be responsible for the liabilities and also executed a cross default undertaking.

4.It is stated in the plaint that for the renewal of the cash credit limit, the 2nd

Defendant represented by 1st Defendant also executed a Demand Promissory Note for

Rs.10,00,000/- with interest at the rate of 12.70% per annum above the ongoing PLR or at such other rates as may be revised by the Plaintiff-Bank from time to time with a minimum of 12.70% compounded monthly for value received. The third Defendant stood as guarantor and he executed guarantee agreement along with guarantee covering infavour of the Plaintiff-Bank agreeing that the guarantor shall unconditionally and irrevocably guarantee the repayment of all amounts advance by the Plaintiff-Bank to the 1st Defendant.

5. It is further stated in the plaint that the Defendants availed the loan facility of

Rs.10,00,000/- but failed to pay the amount due to the Plaintiff-Bank inspite of repeated reminders by the Plaintiff-Bank and the Defendants willfully violated the terms and conditions of the sanction of the loan. That the Defendants, having availed the credit facility are bound to repay the same but failed to repay the same inspite of several demands, as such the Plaintiff-Bank has no option except to file the suit for recovery of the entire amount due as per the terms and conditions of the loan. Thus, the Plaintiff-Bank is constrained to declare the loan as Non-Performing Assets as per the RBI guidelines.

6. It is further stated in the plaint that a registered lawyer’s notice was sent to the

Defendants calling upon him to pay the entire outstanding amount due to the Plaintiff-

Senior Civil Judge

Chodavaram

Page 4 of 7 in Fair Judgment in O.S.No.97/2017 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

Bank. Though the Defendants acknowledged the notice, they did not choose to pay either principal or interest. Now an amount of Rs.13,47,076/- is due and payable by the Defendants as on 31-10-2017 and the statement of account of the Defendants shows the irregularities and defaults committed by the Defendants in repayment of the loan account, the said irregularities and defaults would elucidate the willful default on the part the Defendants. It is further stated in the plaint that the interest is mounting day by day and as there are no prospects of repayment, the Defendants being the borrower and guarantor of the credit facility, are liable to pay the claim of the Plaintiff-

Bank. Hence the suit.

7.After institution of the suit by the Plaintiff-Bank, the same is registered as

O.S.No.91/2017. Suit summons are issued to the Defendants through Court and

Registered Post. Defendants 1 and 3 refused to receive suit summons. Refusal of suit summons by Defendants 1 and 3 is treated as sufficient service. Hence Defendant

No.1 and 3 are set ex-parte on 22-06-2018. The 2nd Defendant engaged Advocate and requested time for filing written statement. But, 2nd Defendant was called absent and

Written Statement was not filed. Hence 2nd Defendant was set ex-parte on 18-12-2018.

8.During trial, the Plaintiff-Bank got examined its Branch Manager as Pw-1 by way of filing chief examination affidavit. The Plaintiff-Bank filed eight documents and those marked as Ex.A.1 to Ex.A10.

9.Heard Counsel for Plaintiff and perused the record.

POINT:- 10.Now the point that arise for consideration is “Whether the Plaintiff-Bank proved the suit claim? If so whether the Plaintiff is entitled for decree in its favour against the Defendants for the entire suit amount with interest and costs as prayed for?

Senior Civil Judge

Chodavaram

Page 5 of 7 in Fair Judgment in O.S.No.97/2017 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

FINDINGS ON THE POINT:-

11.After hearing the arguments submitted by the learned counsel for Plaintiff-Bank and after consideration of entire material on record, it is very clearly that the 1st

Defendant is a proprietorship concern represented by its proprietor i.e., 2nd Defendant.

The Defendants taken loan of Rs.10,00,000/- on 26-02-2015. The Branch Manager of

Plaintiff-Bank filed his evidence affidavit and repeated plaint averments in his chief examination as Pw-1. Ex.A.1 is the attested copy of Power of attorney issued by Head

Office Cenara Bank, Banglore. Ex.A.2 is the loan application submitted by the 1st

Defendant before the Bank. Ex.A.3 is the Loan sanction letter issued by Bank to the 1st

Defendant. Ex.A.4 is the Promissory Note executed by Defendants No.1 and 3 to the

Bank. Ex.A.5 is the Cash Credit Agreement executed by 1st Defendant to the Plaintiff-

Bank. Ex.A.6 is the request for Over Draft facilities executed by the 1st Defendant to the Bank. Ex.A.7 is guarantee agreement issued by 3rd Defendant in favour of the

Plaintiff-Bank. Ex.A.8 is guarantee covering letter issued by 3rd Defendant in favour of the Plaintiff-Bank. Ex.A.9 is return cover of Registered Lawyer's notice issued by Bank through its Advocate to the Defendants. Ex.A.10 is the Statement of account maintained by Plaintiff-Bank relating to loan account of Defendants.

12.The oral evidence of Pw-1 is based on above documents. So the Plaintiff-Bank by examining Pw-1 and by marking Ex.A.1 to Ex.A.10 proved the suit claim. The evidence of Pw-1 is not challenged by cross examination because the Defendants are ex-parte in this suit. Further, the documents marked on behalf of the Plaintiff-Bank are very important to dicide the present suit. Particularly Ex.A.10 document marked by the

Plaintiff-Bank reveal that Defendants 1 to 3 borrowed the amount of Rs.10,00,000/- towards over draft facility but the same was not discharged. The other documents marked by the Plaintiff-Bank namely Ex.A.1 to Ex.A.8 are the documents of the

Senior Civil Judge

Chodavaram

Page 6 of 7 in Fair Judgment in O.S.No.97/2017 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram transactions between the Plaintiff-Bank and Defendants. Since Ex.10 is the document reflecting the due amount and default committed by Defendants, all the other documents are already covered by Ex.A.10. The demands of Plaintiff-Bank to recover due amount from the Defendants can be seen by looking into Ex.A.9 returned cover of

Registered Lawyer's Notice. Therefore, the evidence of Pw-1 and Ex.A.1 to Ex.A.10 clearly prove and establish that the Plaintiff-Bank can substantiate its claim against the

Defendants. Therefore, the Plaintiff-Bank is entitled for decree in its favour against the

Defendants as prayed for. Accordingly, the above framed point is answered in favour of Plaintiff-Bank holding that the Plaintiff-Bank proved suit claim and it is entitled for decree in its favour against the Defendants as prayed for.

RESULT:

13.In the result, this suit is decreed with costs in favour of the Plaintiff-Bank against the Defendants for a sum of Rs.13,47,076/- ( Rupees Thirteen Lakhs Forty Seven

Thousand And Seventy Six only ) together with subsequent interest at the rate of 12% per annum from the date of suit till date of decree and thereafter at the rate of 6% per annum from the date of decree till date of realization on the principal amount of

Rs.10,00,000/-( Rupees Ten Lakhs only).

Typed to my dictation by the Typist, corrected and pronounced by me in the open Court, this the 31 st day of December, 2018.

Senior Civil Judge

Chodavaram

APPENDIX OF EVIDENCE

NUMBER OF WITNESSES EXAMINED FOR PLAINTIFF

P.W.120-12-2018Pyla Gowtham, Canara Bank, Branch Manager, R.Bheemavaram Branch, Buchiyyapeta Mandal, Visakhapatnam District.

NUMBER OF WITNESSES EXAMINED FOR DEFENDANTS

None ( Defendants were ex-parte.)

Senior Civil Judge

Chodavaram

Page 7 of 7 in Fair Judgment in O.S.No.97/2017 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

NUMBER OF DOCUMENTS MARKED FOR PLAINTIFF

Ex.A116-06-2017Attested Copy Power of attorney executed by Head Office Canara Bank, Bangalore in favour of P.W.1.

Ex.A226-02-2015Original Loan application executed by the 1st Defendant in favour of the Plaintiff-Bank.

Ex.A326-02-2015Original Loan Sanction letter executed by Plaintiff-Bank in favour of the 1st Defendant.

Ex.A426-02-2015Original Promissory Note executed by the Defendants in favour of Plaintiff-Bank.

Ex.A526-02-2015Original Cash Credit Agreement executed by the 1st Defendant in favour of Plaintiff-Bank.

Ex.A626-02-2015Original request for Over Draft facilities executed by the 1st Defendant in of the Plaintiff-Bank.

Ex.A726-02-2015Original guarantee agreement executed by 3rd Defendant in favour of the Plaintiff-Bank.

Ex.A826-02-2015Original guarantee covering letter executed by 3rd Defendant in favour of the Plaintiff-Bank.

Ex.A908-07-2016Original return cover of the Registered Lawyer's notice executed by the Bank through its Advocate to the Defendants.

Ex.A1013-11-2017Attested copy Statement of account maintained by Plaintiff- Bank in relation to loan of Defendants.

NUMBER OF DOCUMENTS MARKED FOR DEFENDANTS

Nil ( Defendants were ex-parte.)

Senior Civil Judge

Chodavaram

Senior Civil Judge

Chodavaram

Page 1 of 6 in Fair Judgment in O.S.No.97/2017 dt.31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

IN THE COURT OF THE SENIOR CIVIL JUDGE: AT CHODAVARAM

PRESENT: P. SIVARAM PRASAD,

SENIOR CIVIL JUDGE,

CHODAVARAM.

MONDAY, THIS THE 31 th DAY OF DECEMBER, 2018

ORIGINAL SUIT No.97/2017

Between:

1.Kolli Mahalakshmi, W/o Venkataramana, Age 46 years, Housewife, Resident of Veerabhadrapeta Village, Chidikada Mandal, Visakhapatnam District. (Within Jurisdiction of Junior Civil

Judge's Court, Chodavaram).

2.Earle Yerrayyamma, W/o Krishna, Age 44 years, Hindu, Housewife, Resident of Chodavaram Village and Mandal, Visakhapatnam District. (Within Jurisdiction of Junior Civil

Judge's Court, Chodavaram).

… Plaintiffs

And

Yerra Demudu, S/o Late Sannibabu 1. @ Chinnodu, Age 52 years, Hindu, Cultivation, Resident of D.No.1-60, Chidikada Village and Mandal, Visakhapatnam District. (Within Jurisdiction of Junior Civil

Judge's Court, Chodavaram.)

Yerra Yerukunaidu, S/o Late Sannibabu 2. @ Chinnodu, Age 45 years, Hindu, Cultivation, Resident of D.No.1-60, Chidikada Village and Mandal, Visakhapatnam District. (Within Jurisdiction of Junior Civil

Judge's Court, Chodavaram.)

… Defendants

This suit is coming on 28-12-2018 for final hearing before me in the

presence of Sri K.Srinivisarao and Sri B.Raju, Advocates for the Plaintiffs and 1 st

Defendant was set ex-parte on 06-04-2018 and 2 nd Defendant was set ex-parte on

28-09-2018 and the matter having stood over for consideration till this day, this Court delivered the following:

Senior Civil Judge,

Chodavaram.

Page 2 of 6 in Fair Judgment in O.S.No.97/2017 dt.31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

J U D G M E N T

1. This is a suit filed by the Plaintiffs against the Defendants (a) for partition of plaint schedule properties into four equal shares taking into consideration of the value, utility, etc., and for allotment of two such shares to Plaintiffs, (b) for ascertainment of future mesne profits on a separate petition to be filed under Order 20 Rule 13 and 18 of CPC and (c) for costs of the suit.

BRIEF AVERMENTS OF THE PLAINT:-

2.The brief averments of the plaint filed by the Plaintiffs are that the Plaintiffs and

Defendants are brothers and sisters and they are children of Yerra Sannibabu @

Chinnodu and they constituted Hindu undivided joint family, the plaint schedule properties are the joint ancestral properties of Yerra Sannibabu@Chinnodu, the

Plaintiffs and the Defendants. The Plaintiff's father Yerra Sannibabu@Chinnodu used act as manager of the said joint family and used to manage the plaint schedule properties and used to share the produce derived therefrom among the joint family members. The Plaintiff's mother predeceased their father. While enjoying the plaint schedule properties as manager, the Plaintiff's father Yerra Sannibabu@Chinnodu died intestate on 16-06-2016 leaving the plaint schedule properties jointly being managed by the 1st Defendant who is the eldest male member of the joint family and manager of the Hindu joint family of the Plaintiffs and the Defendants. The 1st

Defendant used to share the produce regularly derived from the of plaint schedule properties and thus the Plaintiffs and Defendants are in joint possession and enjoyment of the plaint schedule properties till now.

3. It is stated in the plaint that while so, since recently some disputes arose in the family when the Plaintiffs questioned the 1st Defendant about his mismanagement of the plaint schedule properties and about the appropriation of the income derived from the joint family properties i.e., the plaint schedule properties in collusion with the 2nd

Defendant. The Plaintiffs reliably came to know that the 1st Defendant in collusion with

Senior Civil Judge,

Chodavaram.

Page 3 of 6 in Fair Judgment in O.S.No.97/2017 dt.31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram the 2nd Defendant has been making hectic attempts to alienate some of the plaint schedule properties to the 3rd parties without any manner of right and influencing the revenue authorities to issue pattadar and the deed passbooks in their favour in respect of the plaint schedule properties to the detriment of the interest of the Plaintiffs. On that, the Plaintiffs demanded personally and through elders, the Defendants to effect partition of the plaint schedule properties, into four equal shares and allot two such shares to them and the 1st Defendant promised to partition the plaint schedule properties and allot their half share but he is procrastinating the matter and is not cooperating with the Plaintiffs to effect partition of the plaint schedule properties and allot their two such shares and did not give their share of produce derived from the plaint schedule properties. Thereupon, the Plaintiffs got issued a re gistered lawyer's notice on 21.08.2017 to the Defendants demanding them to effect partition of the plaint schedule properties in to four equal shares and allot two such shares to them, inspite of lawyer's notice the Defendants did not come forward for partition of the plaint schedule properties and give their separate shares of the Plaintiffs. Hence the

Plaintiffs apprehend that it would not safe for them to continue tobe joint with the

Defendants and enjoy the plaint schedule properties jointly with the Defendants.

Therefore this suit is filed for partition of the plaint schedule properties into four equal shares and allot two such shares to the Plaintiffs.

4.After institution of the suit by the Plaintiffs, the same is registered as

O.S.No.97/2017. Suit summons are issued to the Defendants through Court and

Registered Post. 1st Defendant received suit summons and he was called absent. No representation. Service held sufficient. Hence 1st Defendant was set ex-parte on 06- 04-2018. Summons of 2nd Defendant served by wife. 2nd Defendant called absent. Wife of 2nd Defendant called absent. Vakalat not filed. No representation for 2nd Defendant.

Hence 2nd Defendant is set ex-parte on 28-09-2018.

Senior Civil Judge,

Chodavaram.

Page 4 of 6 in Fair Judgment in O.S.No.97/2017 dt.31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

5.During trial, the 1st Plaintiff is examined as Pw-1 by way of filing the chief examination affidavit. The Plaintiffs got marked Ex.A.1 to A.3 documents.

6.Heard Counsel for Plaintiffs and perused the record.

POINT:-

7.Now the point for consideration is:

Whether the Plaintiffs are entitled for preliminary Decree in their favour

for partition of plaint schedule properties into four equal shares?

And

Whether the plaintiffs are entitled for two such shares to them and for

future mesne profits as prayed for?

FINDINGS ON THE POINT:-

8.After hearing the submissions of learned counsel for Plaintiffs and on consideration of entire material on record, it is very clear that as per the plaint averments the Plaintiffs and the Defendants are brothers and sisters and they are children of Yerra Sannibabu @ Chinnodu. During the life time of the said Yerra

Sannibabu @ Chinnodu and they all enjoyed the plaint schedule properties jointly. The said Yerra Sannibabu @ Chinnodu died intestate leaving behind him, the Plaintiffs and

Defendants as his legal heirs, and the Plaintiffs and Defendants constituted Hindu joint family and enjoying the plaint properties jointly.

9.To substantiate the plaint averments, the Plaintiffs adduced oral and also documentary evidence. The 1st Plaintiff is examined as Pw-1 and she got marked three documents. Those are Ex.A.1 is Office copy of registered lawyer's notice got issued by

Plaintiff's Advocate to the 1st Defendant, Ex.A.2 is Postal Acknowledgment received by

Plaintiff's counsel from the Postal Authorities and Ex.A.3 is certified copy of 1-B register obtained from Mee Seva Center by 1st Plaintiff. The 1st Plaintiff clearly stated that the Plaintiffs are entitle for two shares in the plaint schedule properties out of four shares.

10.Admittedly, the plaint schedule properties belong to Plaintiff's father Yerra

Sannibabu @ Chinnodu. The Plaintiffs got two shares in the plaint schedule properties

Senior Civil Judge,

Chodavaram.

Page 5 of 6 in Fair Judgment in O.S.No.97/2017 dt.31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram as there was no registered partition or earlier partition of properties. This fact is clearly averred in plaint and deposed in evidence of Pw-1. Moreso, the Pw-1 evidence is not challenged in the cross examination as the Defendants are ex-parte. Hence, evidence of Pw-1 cannot be discarded because she stated all plaint averments in her evidence on oath.

11.Further, the documents marked on behalf of the Plaintiffs are very important to pass the decree in this suit. The First document i.e., Ex.A.3is this 1-B extract which is obtained from Mee Seva Center. This 1-B extract shows that the Plaint schedule properties stands in the name of Yerra Sannibabu @ Chinnodu who is father of

Plaintiffs. Description of all plaint schedule properties are described in Ex.A.3 1-B extract. This 1-B register is the revenue record maintained by revenue department.

Hence, this document would provethat even after death of Plaintiffs father by name

Yerra Sannibabu @ Chinnodu, the plaint schedule properties are still joint and reflecting his name because there is no partition. Thus, the Plaint averments are supported by evidence of Pw-1 is Ex.A.3 revenue record. The other to documents, those are Ex.A.1 and Ex.A.2. Ex.A.1 is registered lawyer's notice got issued by

Plaintiffs to Defendants demanding partition of plaint schedule property. Ex.A2 is

Postal Acknowledgment of 1st Defendant. These Ex.A1 and Ex.A2 prove the demands made by Plaintiffs against the Defendants for partition of the plaint schedule properties. The 1st Defendant received Registered Lawyer's Notice.

12.There is no dispute that the plaint schedule properties are ancestral joint family properties. There is no dispute about Survey Numbers, Boundaries and extent of plaint schedule properties. Since it is a suit for partition of joint family properties of Plaintiffs and Defendants, there is no need for the Plaintiffs to file any documents and oral evidence of other witnesses is also not required. Thus, the Plaintiffs are entitled for preliminary decree in their favour as prayed for. Accordingly, the above framed point is answered in favour of the Plaintiffs holding that the Plaintiffs are entitled for preliminary

Senior Civil Judge,

Chodavaram.

Page 6 of 6 in Fair Judgment in O.S.No.97/2017 dt.31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

Decree in their favour for partition of plaint schedule properties in to four equal shares and for allotment of two such shares to them as prayed for.

RESULT:

13.In the result, this suit is decreed with costs in favour of the Plaintiffs against the

Defendants granting preliminary decree of partition of plaint schedule properties into four equal shares and allotment of two such shares to the Plaintiffs by metes and bounds as prayed for. Future mesne profits to be determined on separate application.

Typed to my dictation by the Typist, corrected and pronounced by me in the open court, this the 31 th day of December, 2018.

Senior Civil Judge,

Chodavaram.

APPENDIX OF EVIDENCE

NUMBER OF WITNESSES EXAMINED FOR PLAINTIFFS

P.W.1: Kolli Mahalakshmi (1st Plaintiff) dated 28-11-2018.

NUMBER OF WITNESSES EXAMINED FOR DEFENDANTS

None (Since Defendants are set ex-parte.)

NUMBER OF DOCUMENTS MARKED FOR PLAINTIFFS

Ex.A121-06-2017Office copy Register Lawyer's Notice got issued by Plaintiffs' counsel to the Defendants.

Ex.A2-Original Postal Acknowledgment of 1st Defendant received by Plaintiff's counsel from the Postal Authorities.

Ex.A330-07-2016Certified copy 1-B Register by Plaintiffs by Mee- Seva Center.

NUMBER OF DOCUMENTS MARKED FOR DEFENDANTS

Nil (Since Defendants are set ex-parte.)

Senior Civil Judge,

Chodavaram.

Senior Civil Judge,

Chodavaram.

Page 1 of 5 in Fair Order in H.M.O.P.No.27/2018 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

IN THE COURT OF THE SENIOR CIVIL JUDGE:: CHODAVARAM

PRESENT: P. SIVA RAM PRASAD,

SENIOR CIVIL JUDGE,

CHODAVARAM.

MONDAY, THIS THE 31 st DAY OF DECEMBER, 2018

H.M.O.P.No.27/2018

Between:

Musidipalli Anil Kumar, S/o Apparao, Age 29 years, Hindu, Employee, Resident of D.No.1-1, Opp.Anjaneya Swami Statue, Govada Village and Post, Chodavaram Mandal, Visakhapatnam District.

… Petitioner

And

Musidipalli Roja Rani, W/o Anil Kumar, Age 20 years, Resident of C/o Mudidana Anand Kumar, D.No.20-517, Anjaneyapuram Village, Tekkali Mandal, Srikakulam District.

…Respondent

This Original Petition is coming on 27-12-2018 for hearing before me in the

presence of Sri N.S.R.Gopi Krishna Rao and K.Bhaskar Das, Advocates for the

Petitioner and Respondent was set ex-parte on 21-12-2018, having been stood

over till this day, this Court delivered the following:

O R D E R

1.This OP is filed by the Petitioner(Husband) against the Respondent (Wife) under section 13(1)(v) of Hindu Marriage Act requesting to grant divorce and dissolve his marriage with Respondent held on 19-06-2017 on the grounds of suffering from venereal disease in a communicable form.

THE BRIEF AVERMENTS OF THE PETITION:-

2.The brief averments of the petition filed by the Petitioner are that the

Respondent is the cousin's daughter of the Petitioner's mother and as such the

Petitioner's parents and the Respondent's parents have fixed the marriage alliance of the Petitioner with the Respondent. The marriage between the Petitioner and

Senior Civil Judge,

Chodavaram

Page 2 of 5 in Fair Order in H.M.O.P.No.27/2018 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

Respondent took place on 19-06-2017 at Chodavaram Town and Mandal,

Visakhapatnam District according to Hindu Law and Caste Custom. After marriage, the marriage was consummated. After few days stay of the Respondent with the

Petitioner, the Respondent was taken by her parents to their village. Thereafter the

Respondent joined the Petitioner in August, 2017 in Sravana Masam in the Petitioner's house.

3.It is stated in the Petition that after the Respondent joined the Petitioner, the

Respondent used to frequently complain of weakness and fever. The Petitioner used to get her treated. During February, 2018, the Respondent became pregnant. Since 11.02.2018 the Respondent was suffering from fever tand as such the Petitioner got her checked up and the Respondent was given general medicines for control of fever.

Again the Respondent complained of heavy fever. Then the Petitioner has got her checked up in K.G.H. Visakhapatnam on 15.04.2018. On 16.04.2018, the Respondent being pregnant was checked up thoroughly and all the tests required were conducted.

The Respondent's blood report dated 16.04.2018 revealed that the Respondent is suffering from HIV-I (AIDS). The Doctors advised spontaneous termination of pregnancy considering the safety of the Respondent. Immediately after knowing that the Respondent is an AIDS patient, the Petitioner has also got himself checked up and obtained blood report and the blood report revealed negative and that the Petitioner has no HIV-I (AIDS).

4. It is further stated in the Petition that the Petitioner apprehended that he too would be affected on communication if he continues conjugal life with the Respondent and on consultation the Doctors advised that the Petitioner and Respondent shall live separately.

5.It is further stated in the Petition that the Petitioner has informed the health condition and medical reports of the Respondent to her parents. The Respondent's parents informed the Petitioner that they knew that the Respondent is an AIDS patient.

Senior Civil Judge,

Chodavaram

Page 3 of 5 in Fair Order in H.M.O.P.No.27/2018 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

The Respondent was admitted in Ramasaranya Hospital on 19.04.2018 at

Visakhapatnam and her pregnancy was terminated on 20.04.2018 with the consent of the Respondent her parents and the Petitioner. The Respondent was discharged from the hospital on 21.04.2018 and her parents took her to their house situated in

Anjaneyapuram Village, Tekkali Mandal, Srikakulam District. Since 21.04.2018 the

Respondent and the Petitioner are living separately.

6.It is further stated in the petition that the Respondent is a chronic AIDS patient from her childhood and the said fact was not known to the Petitioner and her parents but the same was not disclosed by the Respondent and her parents to the Petitioner or his parents at any time before the marriage. There is no chance of reunion between the Petitioner and Respondent and there will be no conjugal society between the

Petitioner and Respondent. The Petitioner cannot lead marital life with the Respondent as she is suffering from communicable form disease i.e., AIDS and the marriage between the Petitioaner and Respondent is thus broken, as such the marriage between the Petitoner and Respondent is to be dissolved, since the Respondent is suffering from incurable disease. Hence this petition.

7.After filing of this petition before the Court, the same is registered as

H.M.O.P.No.27/2018 and posted for appearance of Respondent. The Respondent did

not attend before the Court even after receipt of notice personally, as such as she was set ex-parte on 07-12-2018.

EXAMINED WITNESSES:-

8.During the enquiry, the Petitioner got examined himself as Pw-1. Ex.P.1 to

Ex.P.4 documents are marked on behalf of the Petitioner.

9.Heard counsel for Petitioner and perused the record.

Senior Civil Judge,

Chodavaram

Page 4 of 5 in Fair Order in H.M.O.P.No.27/2018 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram

POINT:-

10.Now the point for consideration is :

Whether the present OP filed by Petitioner can be allowed by

granting divorce dissolving the marriage of Petitioner and

Respondent held on 19-06-2017 under section 13(1)(v) of Hindu

Marriage Act, as prayed for?

FINDINGS ON THE POINT:-

11.After hearing the arguments submitted by learned counsel for the Petitioner and after careful examination of the entire material on record, it is very clear that the

Petitioner is the husband of the Respondent. The Petitioner herein is examined as

Pw-1 and he got marked Ex.P.1 wedding card. The Petitioner also got marked two marriage photographs along with C.D as Ex.P.2. The Medical report No.1802026 of the Respondent is marked as Ex.P.3 and the Medical Report No.1802037 of the

Petitioner is marked as Ex.P.4.

12. The Petitioner clearly stated in her evidence as Pw-1 that his marriage with

Respondent was performed on 19-06-2017 at Chodavaram Town and Mandal,

Visakhapatnam District, as per Hindu rites and caste custom. When the marriage of

Petitioner is performed as per Hindu rites, he can file this petition under section 13(1)

(v) of Hindu Marriage Act.

13.The grounds for granting divorce are mainly the Respondent was found to be a chronic HIV-I (AIDS) patient and on 20.04.2018 the Respondent's pregnancy was terminated and the Respondent and Petitioner are living separately for 21-04-2018 as there is no chance of reunion between them as the Respondent is suffering from incurable and communicable form disease.

14.The above aspects are clearly stated in the evidence of Pw-1. P.w-1 evidence is not challenged in cross examination. The documents got marked by Petitioner are crucial to decide this O.P. Particularly Ex.P.3 and P.4 Medical report prove and establish that the Respondent is suffering from AIDS which is spreadable in nature during sexual intercourse by Petitioner with her. Ex.P.3 and Ex.P.4 are issued by

Senior Civil Judge,

Chodavaram

Page 5 of 5 in Fair Order in H.M.O.P.No.27/2018 dated 31.12.2018 on the file of Senior Civil Judge’s Court, Chodavaram competent authority i.e., National Aids Control Organization, K.G.H., Visakhapatnam.

The entries in Ex.P.3 and Ex.P.4 cannot be ignored under any circumstances because the said reports are given after conduction necessary tests on the Petitioner as well as

Respondent. Therefore divorce can be granted to Petitioner dissolving his marriage with Respondent. The above framed point is accordingly answered in favour of the

Petitioner.

RESULT:-

15. In the result, this OP is allowed without costs granting divorce and dissolving the marriage of Petitioner (Husband) and Respondent (Wife) took place on 19-06-2017 as prayed for under section 13(1)(v) of Hindu Marriage Act.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 31 st day of December, 2018.

Senior Civil Judge,

Chodavaram.

APPENDIX OF EVIDENCE

NUMBER OF WITNESSES EXAMINED FOR PETITIONER

P.W.1: Musidipalli Anil Kumar( Petitioner) dated 27-12-2018.

NUMBER OF WITNESSES EXAMINED FOR RESPONDENT

Nil (Respondent set Ex-parte.)

NUMBER OF EXHIBITS MARKED FOR PETITIONER

Ex.P.1-Original Wedding card.

Ex.P.2-Original two Marriage photos along with C.D.

Ex.P.316-04-2018Original Medical report No.1802026 of the Respondent issued by National Aids Control Organization, K.G.H., Visakhapatnam.

Ex.P.416-04-2018Original Medical report No.1802037 of the Petitioner issued by National Aids Control Organization, K.G.H., Visakhapatnam.

NUMBER OF EXHIBITS MARKED FOR RESPONDENT

Nil(Respondent set Ex-parte.)

Senior Civil Judge,

Chodavaram