Smt. P.sri Satya Devi

PSCJC/GWK 1, 

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AT

GAJUWAKA

Present:- Smt.P.SRI SATYA DEVI,

PRINCIPAL SENIOR CIVIL JUDGE,

GAJUWAKA.

THURSDAY THE 25th DAY OF APRIL, 2019

O.S.No.302/2014

Between :

Regulagadda Krishna Rao S/o. Late Rammurthy, Hindu, age 62 years, Retired Employee in APSPDCL Ltd., residing at

D.No. 10-69/12A, Maruthi Nagar, Tirupathi, Chittoor District.

….. Plaintif

And :

1. Smt. Balireddy Usha Rani W/o. Late Balireddy Nooka Raju, Hindu, aged 32 years, House wife, residing at D.NO. 1-32/4, Gallavanipalem, Near Dattatreya Apartments, Aganampudi village, Gajuwaka Mandal, Visakhapatnam District.

2. Balireddy Vamsi S/o. Late Balireddy Nooka Raju, Hindu, aged 14 years, residing at D.NO. 1-32/4, Gallavanipalem, Near Dattatreya Apartments, Aganampudi village, Gajuwaka Mandal, Visakhapatnam District.

3. Balireddy Harsham Naidu S/o. Late Balireddy Nooka Raju, Hindu, aged 12 years, residing at D.NO. 1-32/4, Gallavanipalem, Near Dattatreya Apartments, Aganampudi village, Gajuwaka Mandal, Visakhapatnam District.

(defendants 2 and 3 being minors represented by their mother natural guardian i.e. the 1st defendant Balireddy Usha Rani)

4. Smt. Kantamreddy Manga Adilaskhmi W/o. Venkateswarulu, Hindu, aged about 40 years, Housewife, residing at D.NO. 1-32/4, Gallavanipalem, Near Dattatreya Apartments, Aganampudi village, Gajuwaka Mandal, Visakhapatnam District.

PSCJC/GWK 2, 

5. Kantamreddy Krishna S/o. Not known to this plaintif, Hindu,a ged about 65 years, Retired teacher, residing at D.NO. 1-32/4, Gallavanipalem, Near Dattatreya Apartments, Aganampudi village, Gajuwaka Mandal, Visakhapatnam District

6. The Commissioner Greater Visakhapatnam Municipal Corporation, Visakhapatnam.

...Defendants

This suit is coming before me for final hearing on 18.04.2019 in the presence of Sri Ch.Amarnath and Sri M.Praveen Kumar, Advocates for the plaintif and of Sri G.Chiranjeevi, Advocate for the defendants 1 to 4 and the suit dismissed against 5th defendant and upon hearing and considering the material on record, the matter having stood over for consideration till this day, this court delivers the following:-

JUDGMENT

Suit filed by the plaintif against the defendants 1 to 6, for declaration of his title as an absolute owner of the plaint ‘A’ schedule property and recovery of the possession of the same from the defendants 1 to 3 after removing existing structures therein and for permanent injunction restraining the defendants 1 to 5 from ever interfering with his ingress and agrees through the plaint B schedule common passage and for Mesne profits @ Rs.5,000/- per month from defendants 1 to 3 from the date of suit till the date of delivery of possession of the suit schedule property and for costs.

PSCJC/GWK 3, 

2. Case of the plaintif in brief is as follows:

(a).He purchased the site in an extent of 102.12 sq.yards comprising in two items I.e 83.62 sq.yards + 18.5 sq.yars covered by Plot

No.5, S.No.48/8 of Aganampudi village, Gajuwaka mandal, which is more specifically described as plaint ‘A’ & ‘B’ Schedule properties. Originally himself and the husband of 1st defendant by name Balivada Nooka Raju along with 4th defendant purchased the vacant site of Plot No.5 under three separate registered sale deeds, on 17.08.2007 from the common vendor. Their vendor purchased 374 sq.yards of Plot No.5 from one

Ponnaganti Srinivas and divided it into three parts and demarcated the schedule properties with specific measurements by leaving 68 sq.yards of site in a linear measurements 9 x 68 ft as common way for the three vendees on the eastern side of their respective schedule properties, for their ingress and egress to reach the southern side 18 feet road from their respective plots. Thus, their vendor delivered the possession of each item with specific boundaries to the plaintif and other vendees.

(b).On account of his employment as Line Inspector in APEPDCL,

Tirupathi, he used to work at there. He intended to construct a house in the schedule property to lead peaceful life after his retirement. He used to come and visit his property now and then from the date of its purchase. In that course, he visited the suit schedule property in the 1st week of

October,2011 and got removed the shrubs and bushes in the schedule

PSCJC/GWK 4, property and went back to Tirupathi. Thereafter he fell sick and underwent

Heart operation and could not visit the suit schedule property subsequently.

(c) In the month of March,2013, to his utter surprise, he found the construction made in his exclusive property. Upon enquiry, he came to know that his southern side neighbour i.e. the husband of 1st defendant made constructions not only in his site, but also in the encroached plaint schedule property of plaintif. Immediately, he questioned the husband of 1st defendant, but he carelessly replied. Then, he got surveyed the schedule property through a private surveyor and found that his entire site shown as plaint ‘A’ Schedule property was encroached by making construction and constructions were partly made in the plaint ‘B’ schedule common way. On that he raised the dispute before the elders. Even though the elders advised the husband of 1st defendant to remove the structures in the site of plaintif, he did not respond. Subsequently, the husband of 1st defendant died on 9.9.2013 without removing the structures in the encroached site.

(d).Subsequently, in the month of October, 2013, he demanded the 1st defendant who has knowledge of encroachment of his site, to remove the structures and deliver the vacant possession of the same to him. 4th defendant who is the northern side boundary owner of the suit schedule property is the sister of 1st defendant, whereas 5th defendant is their father. They all proclaimed that they will not remove the structures in

PSCJC/GWK 5, the suit schedule property and moreover, they denied the right and title of the plaintif over the same. 1st defendant also gave a false complaint to the police against him as he questioned their highhanded encroachments.

Upon enquiry, the police advised the plaintif to approach the Civil Court.

Being an absolute owner of the suit schedule property, having purchased the same under a registered sale deed, he is entitled to recover the possession of the suit schedule property from the defendants. It was informed to him that 1st defendant and her husband illegally and high handedly raised the structures unauthorisedly in the plaint schedule property without obtaining any valid plan from the 6th defendant. But the officials of the 6th defendant failed to take any action. In those compelling circumstances, he was constrained to file this suit for the reliefs sought for.

Hence the suit.

3. On receipt of suit summons, defendants 1 to 4 made their appearance and filed their written statement whereas 5th Defendant remained exparte. D1 to D4 denied the plaint allegations made against them.

The sum and substance of their written statement is as follows:

(a).Plaintif is the maternal uncle of the husband of 1st defendant by name Balireddy Nooka raju. During his life time, Nooka Raju maintained very good terms with the plaintif. After his death an evil ideas entered into the brain of the plaintif which resulted the filing of this suit.

PSCJC/GWK 6, 

(b) In view of the close relationship between them, plaintif, the husband of 1st defendant and 4th defendant purchased the properties on 17.08.2007 from the common vendor under three registered sale deeds bearing Nos. 5851/2007,5857/2007 and 5850/2007. Infact their vendor purchased an extent of 374 sq.yards under a registered document No.

941/2005 dt. 7.8.2005 which is Plot NO.5 covered by Sy.No.48/8, from one

Ponnaganti Srinivas. The property of the plaintif in an extent of 102.12 sq.yards covered by Document No. 5851/2007 is a center portion and on its northern side the property of 4th defendant in an extent of 165.94 sq.yards is situated, whereas, on its southern side the property of 1st defendant’s husband in an extent of 192.44 sq.yards located. Item no.2 of their sale deed properties, kept as common way for their ingress and egress from southern side road. The road facing is available only to the site of 1st defendant’s husband.

(c) As per Vaastu, extension towards north is permissible. Plaintif is non-resident of Visakhapatnam and he was an employee at Tirupathi. Due to the relationship with him, the husband of 1st defendant approached him and plaintif having receipt of Rs.4,00,000/- in installments on diferent dates in the presence of K.V.Satyanarayana, D.Venkata Rao and R.Prakash

Rao sold the plaint schedule property to him. Out of Rs.4,00,000/- plaintif received Rs.50,000/- on 7.9.2013 from the husband of 1st defendant through on-line transfer from UCO Bank with S.B. Account 15880100003572. The plaintif further agreed that he will come and

PSCJC/GWK 7, execute the sale deed as per the convenience of 1st defendant’s husband and allowed him to make construction in his site. Believing the said representations in view of their close family relationship, husband of 1st defendant raised the construction in the center portion also shown as plaint A schedule property and eversince it was in his possession and enjoyment. Thus, though the plaintif purchased that property, the husband of the 1st defendant only enjoyed the same. The husband of the 1st defendant suddenly died on 9.9.2013 but not on 2.9.2013.

(d) There is no cause of action for the plaintif to file this suit for the relief sought for. Hence, they prayed the Court to dismiss the suit with costs.

4On perusal of the pleadings, documents filed on either side, the following issues were settled for trial:

1. Whether plaint schedule properties sold by the plaintif to the husband of 1st defendant for Rs.4,00,000/- or not?

2. Whether plaintif received Rs.50,000/- on 7.9.2013 from the SB Account

No. 15880100003572 of the husband of 1st defendant towards part payment of sale consideration of RS.4,00,000/- or not?

3. Whether the constructions made in plaint A schedule property within the knowledge of plaintif or not?

4. Whether plaintif is entitled to declare himself as absolute owner of the plaint schedule properties or not?

PSCJC/GWK 8, 

5. Whether D1 to D3 are liable to remove the structures in the plaint schedule property in order to deliver vacant possession of the same to the plaintif or not?

6. Whether plaintif is entitled for Rs.5,000/- per month towards damages, from the date of suit as prayed for or not?

7. Whether plaintif is entitled to get the decree passed for relief of permanent injunction, as prayed for or not?

8. To what relief?

5.During the course trial, plaintif himself examined as Pw1 and exhibited six documents under Exs.A.1 to A.6, apart from examining one independent witness as PW2, the advocate commissioner and the Mandal surveyor as Pws.3 and 4. Exs.C1 to C10 marked through Pw3. On the other hand, 1st defendant herself examined as Dw1 and exhibited five documents under Exs.B.1 to B.5. Out of them, Exs.B.1 and B.2 marked during the cross- examination of PW1. Apart from her oral and documentary evidence, she examined her own brother as Dw2.

6.Heard the arguments advanced by defendants’ counsel. Written arguments filed on behalf of the plaintif by refering the pleadings of either parties and their respective oral and documentary evidnce. Perused the oral and documentary evidence available on record.

PSCJC/GWK 9, 

7. Issue No. 1: Whether plaint schedule properties sold by the plaintif to the husband of 1st defendant for Rs.4,00,000/- or not?

Pw1(R.Krishna Rao) being a plaintif reiterated the plaint averments in his chief examination affidavit without any deviation. Likewise

Dw1(B.Usha Rani) being a 1st defendant reproduced her defence in her chief examination affidavit. Hence, the same need not be re-extracted to avoid repetition. The sum and substance of their evidence is, plaintif purchased plaint ‘A’ schedule property in an extent of 102. 12 sq.yards of

Plot No.5 under registered sale deed bearing Doc.No. 5851/2007, dt.

17.08.2007 and plaint B schedule property is the common path way on the eastern side of the plaint ‘A’ schedule property. As such, no further proof is required to accept the transaction covered under Ex.A.1 sale deed dt.

17.08.2007 as well as the title of the plaintif's vendor covered under

Ex.A.2 sale deed dt. 07.02.2005. Likewise there is no dispute about the title & existence of 1st defendant’s husband’s property on the southern side of plaint ‘A’ Schedule property. Hence, no further proof is required to accept Ex.B.3 which is the registered sale deed executed in favour of

B.Nooka Raju.

8.It is the specific evidence of Dw1 that her husband purchased the property covered under Ex.A1 from the plaintif by way of making payment of Rs.4,00,000/- in diferent spells in the presence of K.V. Satyanarayna,

G.Venkata Rao and R.Prakashs rao but he could not obtain any registered

PSCJC/GWK 10, sale deed immediately from the plaintif inview of their close family relationship and also on the assurance of the plaintif. Per contra, plaintif protested the said evidence of Dw1 by way of denying the suggestions given by the defendant to that extent, during his cross-examination.

In support of her oral testimony, 1st defendant examined K.V.S.

Satyanarayana as Dw2 whose evidence in chief completely stood on same lines with that of the evidence of Dw1 and his specific evidence in chief at

Para No. 8 of his affidavit, goes to show that plaintif received

Rs.4,00,000/- in installments in diferent dates and occasions in his presence from Balireddy Nooka Raju and sold his property to him. Even though the defendants contended that apart from Dw2, two more witnesses were present at the time of making the payment of Rs.4,00,000/- to the plaintif towards sale consideration, they did not choose to examine the said material witnesses for the best reasons known to them.

To disprove such oral evidence of Dws.1 and 2, they were subjected to cross-examination. Dw1 categorically admitted that there is no documentary proof with them to show that the plaintif sold his 102.12 sq.yards to her husband for sale consideration of Rs.4,00,000/-. As elicited from Dw2,he is no other than the own brother of Dw1. When it was suggested to him that even though no transaction took place between the plaintif and B.Nooka raju in respect of the suit schedule property he was

PSCJC/GWK 11, deposing falsehood with a view to help his sister, he categorically denied the same.

Thus, except the sol oral testimonies of Dws.1 and 2, there is no other documentary proof to accept the alleged sale transaction of plaint schedule property between the plaintif and the husband of 1st defendant.

The sale of immovable property as contemplated under section of 54 of

Transfer of Property Act, must be under a registered document as envisaged under section 17 of Registration Act. In the absence of any registered document, much reliance cannot be placed over the oral testimonies of Dws.1 and 2, to hold that the plaint schedule property was sold by the plaintif to the husband of 1st defendant, as section 91 of Indian

Evidence Act clearly postulates that when the terms of contract is required by law to be reduced to the form of a document, no oral evidence shall be given in proof of the terms of such contract. Accordingly, this Issue answered against the defendants.

9. Issue No.2:. Whether plaintif received Rs.50,000/- on 7.9.2013 from the SB Account No. 15880100003572 of the husband of 1st defendant towards part payment of sale consideration of RS.4,00,000/- or not?

It is the evidence of Dw1 that out of Rs.4,00,000/- of sale consideration, her husband paid Rs.50,000/- on 7.9.2013 through account

PSCJC/GWK 12, transfer. During the cross-examination, Pw1 clearly deposed about the transfer of Rs.50,000/- to his bank account from the account of

B.Nookaraju. It was clearly reflected in Ex.B.2 account pass book of deceased B.Nooka Raju. As per the entries in Ex.B.2, Rs.50,000/- transferred to the account of plaintif on 7.9.2013. According to the Pw1’s evidence in chief, said Rs.50,000/- paid to him by the husband of 1st defendant towards part payment of debt of Rs.1,00,000/- obtained by the husband of 1st defendant but not towards any part payment of sale consideration of suit schedule property. Infact no acceptable proof of evidence adduced by the plaintif to show that he lent Rs.1,00,000/- to deceased B.Nookaraju, eventhough he exhibited his bank account pass book under Ex.A5. Infact no specific pleading by the plaintif about the alleged mode and date of said money transaction of Rs.1,00,000/- between him and husband of D1, even to verify in Ex.A5. When it was suggested to

D.W1 that transfer of Rs.50,000/- by her husband towards part payment of the debt of Rs.1,00,000/- obtained by her husband from the plaintif, she denied the same. However even though the plaintif admitted the receipt of said Rs.50,000/- from the husband of 1st defendant, in the absence of any further proof of evidence on the part of the defendant or even admissions from P.W1, it cannot be held that it is a part payment of alleged agreed sale consideration of Rs.4,00,000/-. Hence this Issue can be answered against the defendants.

PSCJC/GWK 13, 

10.Issue No.3: Whether the constructions made in plaint A schedule property within the knowledge of plaintif or not?

It is the evidence of Pw1 that in the 1st week of October, 2011, he got removed the shrubs and bushes in the schedule property and went to

Tirupathi. His further evidence in chief goes to show that he fell sick and underwent heart surgery and could not visit the schedule property subsequently. His further evidence in chief goes to show that in the month of March,2013 he came to the suit schedule property and to his utter surprise, he found the construction in it and upon his enquiry, he came to know that the husband of 1st defendant made construction not only in his property but also encroaching the suit ‘A’ schedule property. Then immediately, he questioned him, but he carelessly replied, then he got surveyed the schedule property through a private surveyor and found that the entire site mentioned in Plaint A schedule was encroached into and also made constructions partly in the B schedule common path way, then he raised the dispute before the elders. By virtue of this evidence of Pw1, it seems that his intention is to say that for the first time he noticed the construction in the schedule property in the month of March,2013.

Pw2 ( B.Apparao ) who is no other than the own brother of deceased

Nooka raju . His evidence in chief completely stood on same lines of Pw1.

PSCJC/GWK 14, 

11. In order to disprove the above discussed evidence of P.W1 and 2, they were subjected to cross-examination by the defendant. During the cross- examination, P.W1 categorically deposed that he retired from Electricity department in the Month of January,2011. He further admitted that he is close relative of the husband of 1st defendant and he is no other than the junior maternal uncle cum co-brother of 1st defendant’s husband. He further admitted that they used to have cordial relationship with each other and he used to stay in the house of B.Nooka raju (husband of 1st defendant) whenever he came to Visakhapatnam prior to filing of this suit.

He further admitted that the husband of 1st defendant attended even for his retirement function. He further admitted that he sufered with cardiac problem after his retirement and B.Nooka raju immediately came to

Tirupathi on knowing that information and they both inturn came to

Visakhapatnam by Tirumala express on 5.12.2011. Ex.B1 is the copy of their Train ticket. He further admitted that one month subsequent to the house warming ceremony of B.Nooka raju, he attended for him at times of his ill health in the Month of December, 2011. He further admitted that

Nooka raju was with him when he admitted in the Care Hospital on 12.12.2011 and he underwent heart surgery on 19.12.2011 and discharged from the hospital on 28.12.2011. In support of his oral evidence his hospital discharge summary was marked under Ex.A6. No cross examination done by the defendants on the correctness of this document.

P.W1 further admitted that Nooka raju looked after the entire hospital

PSCJC/GWK 15, transaction on his behalf. He further admitted that he along with his wife stayed for a period of two months in the house of B.Nooka raju after discharging from the hospital. He again deposed that they stayed only 20 days and returned to Tirupathi. At later point of cross-examination, he clearly admitted that by the time of house warming ceremony of B.Nooka raju in the month of November, 2011, his elder daughter blessed with a baby girl and she was months baby by that time.

P.W2 also admitted that plaintif is co-brother of his father and D1 is his own sister-in-law. He pleaded ignorance about the Ex.A1 transaction and so also its contents. Like wise he admitted that he was not witness to the sale deeds of his brother and D4. He also admitted the assistance given by his brother Nookaraju to the plaintif at times of his illhealth in the month of December, 2011. He further clearly admitted that the house warming ceremony of his brother was performed on 5.11.2011. In view of this clear admission by Dw2, no further proof is required to accept the

Ex.B4 contents which is the House Warming ceremony ( Gruhapravesam card ) invitation card. He further admitted that he attended for said function whereas plaintif and his family members did not attend for the same. He further admitted that he has no personal knowledge about visit of plaintif to schedule property in the month of March ,2013 and he came to know the same only through plaintif. He further deposed that he was very much present when the property of plaintif was surveyed. He

PSCJC/GWK 16, admitted that his brother died on 9-9-2013. He categorically denied the suggestion that he deposed falsehood in favor plaintif only on account of his personal and family rivalry with his brother regarding property issues.

12. On close evaluation of the above discussed evidence elicited from

Pw1 and 2 ,it is crystal clear that they are close relatives of D.W1 as contended by the defendants but plaintif did not plead anything about his close relationship with the D1 to D3 and it is nothing but suppression of material fact. Like wise from the above elicited admissions of P.W.1 ad 2 it is further clear that the husband of the D.W1 made construction of house by the month of November,2011 itself. In view of. crucial admissions elicited from P.W1 and 2 it cannot be believed that there was every possibility for the plaintif to get remove the shrubs and bushes in the property covered under Ex.A1 in the 1st week of October,2011. Admittedly house warming ceremony of the building in disputed site was performed on 5.11.2011. In such circumstances, it is quite improbable to believe that construction of a slabbed house can be completed within a month from the point of basement construction. As admitted by P.W1 his relationship with

B. Nooka Raju was so cardial and it was not strained by the year 2011.

Hence, even though P.W1 deposed that he was not invited to the house warming ceremony of B.Nookaraju it is not appeared as trustworthy. There would be no reason for not inviting him to their house warming ceremony performed by the D1 and her husband. Since plaintif not attended for

PSCJC/GWK 17, said occasion because of his own constrains, it seems he tried to take advantage of the same to plead ignorance about the construction in his site. Moreover as further admitted by Pw1, he stayed even for 20 days in the house of deceased Nooka Raju from 28.12.2011 i.e after discharging him from the hospital. Hence, it is not at all acceptable or believable that for the first time plaintif noticed the construction in his site, only in the month of March,2013. In fact, plaintif conveniently not pleaded his relationship with the defendants. Probably it may be to give a colour as if they are strangers to him and there was every possibility for the 1st defendant and her husband to encroach into his site in his absence, being his neighboring land owners.

13.In these circumstances, this Court is unable to believe that without knowledge of the plaintif, the husband of 1st defendant made construction in the plaint schedule property and it was brought to the notice of plaintif only in the month of March,2013. By way of eliciting worthwhile admissions from Pw1 and 2, Defendants could improbablised the pleadings of plaintif in this regard. Hence, it can be held that within the knowledge of plaintif only, constructions were made in the plaint A schedule property by the husband of D.W1. Accordingly, this Issue answered in favour of the defendants.

PSCJC/GWK 18, 

14.Issue No.4 :

Whether plaintif is entitled to declare himself as absolute owner of the plaint schedule properties or not?

Even though there is no dispute about the title of the property of plaintif covered under Ex.A.1, plaintif cannot succeed to get the discretionary relief of declaration of his title as envisaged under section 34 of Specific Relief Act for the reason, while answering the issue no.3 this court arrived at a conclusion that husband of 1st defendant made construction of the house by merging the site of plaintif, within his knowledge. As clearly admitted by P.W1 B.Nookaraju looked after his welfare as a son at the time of his need especially at the time of his ill health. In view of such cordial relationship between them by the year 2011, there was every possibility to allow the husband of D1 to make construction in the site of plaintif without executing any registered document in his favor and probabilities for the same, cannot be ruled out.

Now the plaintif cannot be allowed to take advantage of non execution of sale deed infavor of husband of D1 who suddenly died in a road accident on 9-9-2013. Principles of equity would equally be applied on par with the principles of natural justice as per our settled legal prepositions. The plaintif is at best entitled for receiving the market value of his property by the year 2011 from the D1 to D3 since the defendants failed to prove the

PSCJC/GWK 19, passing of sale consideration of Rs.4,00,000/- to him by deceased

B.Nookaraju. Accordingly this issue answered against the plaintif.

15. Issue No.5 :

Whether D1 to D3 are liable to remove the structures in the plaint schedule property in order to deliver vacant possession of the same to the plaintif or not?

Since the plaintif is not entitled for the main relief of declaration of his title over the plaint A and B schedule properties, question of granting consequential relief of recovery of possession of the same does not arise.

Moreover, Plaintif failed to establish that the construction of the existing building of D1 covered in his entire 102.12 sq.yards on ground . As admitted by P.W1 the sale deeds executed on same day I.e 17-8-2007 in his favor as well as in favor of B.Nookaraju and D4. As already held in the

Issue No.1, the title of the property covered under Ex.B3( registered sale deed dt 17-8-2007) executed in favor of the husband of D1 can be accepted without seeking any further proof. As further admitted by P.W1 he did not file the survey report ,even though he pleaded that he got surveyed his site prior to filing of this suit. As further admitted by him he could not identify his exclusive site when Advocate commissioner visited the disputed property.

PSCJC/GWK 20, 

16. As per the evidence of Pw3(K.Vijaya Kumar) who is the Advocate

Commissioner he visited the suit schedule property in the presence of both parties and their counsel and noted down the measurements of plaint schedule property with the assistance of Mandal Surveyor. Ex.C6 is the original report of Pw3, whereas Ex.C7 is the Sketch issued by Mandal surveyor. i.e. the Mandal Surveyor. During the cross-examination, Pw3 admitted that there is a complete vacant site on the northern side of existing building portion. He further clearly admitted that plaintif did not identify his actual extent of site on ground, when he executed his warrant.

He further admitted that on the southern side of the existing building in the plaint schedule site, there is a way to move but it is not a pucca road.

17.Pw4(V.R.N.Patro) is the Mandal Surveyor who assisted Pw3 to measure the disputed property with the help of FMB. He deposed in the cross-examination that as per the FMB, the total extent of the land covered by SY.No.48/8 of Aganampudi is Ac.0.55 cents. He further clearly deposed that he did not mention the boundary particulars of the disputed property in Ex.C.7 Sketch issued by him.

18. As per Ex.C.6 report,the building in the disputed property is in a plinth area of 39.8 feet from East to west and 34.6 feet from south to

North direction. As per said linear measurements, the extent of such property comes to 153 sq.yards. As per the further observation in Ex.C6

PSCJC/GWK 21, report, the total measurements of the disputed property is 48.4 feet from

East to west and 48 feet from South to north. As per said linear measurements, the extent of disputed area comes to 256 sq.yards.

Admittedly, the property of 1st defendant’s husband is 192.44 sq.yards and plaintif’s property is 102.12 sq.yards. Really the husband of 1st defendant got constructed the building in the entire site of plaintif, the disputed property must be in an extent of 294.56 sq.yards(i.e.192.44 +102.12 sq.yards). Admittedly, on the northern side of disputed site, there is a vacant site. According to the contentions of the defendants, property belongs to 4th defendant in an extent of 165.94 sq.yards situated on the northern side of plaintif's site. P.W1 also admitted that himself, husband of plaintif and D4 purchased the properties on same day from a same vendor and their vendor arranged the common passage on the eastern side of their respective sites to reach the southern side road. The southern side road point was not fixed by the Advocate commissioner as there is no record available about the width of southern side road, since it is not a municipal road. In these circumstances, it is quite ambiguous to know the actual extent of the building projected in the site of plaintif. The plaintif being a suitor must establish the actual extent of the building in encroached portion, otherwise ordering to remove the existing structures in the disputed property leads to mis-carriage of justice and there is every possibility to cause great loss to the defendants 1 to 3 which cannot be compensated in terms of money at later point of time. Hence,

PSCJC/GWK 22, consequential relief of recovery of possession of plaint A and B schedule properties from the defendants 1 to 3 upon removing the existing structures therein cannot be decreed.

19.In the light of the above discussion, this Court is of the opinion that defendants 1 to 3 cannot be ordered to remove the structures in the plaint schedule property in order to deliver the vacant possession of the same to the plaintif. Accordingly, this issue answered against the plaintif.

20.Issue No. 6

Whether plaintif is entitled for Rs.5,000/- per month towards damages, from the date of suit as prayed for or not?

In view of the conclusion arrived by this Court while answering the above issues, it is crystal clear that plaintif not approached the court with all bonafidies on his part, hence he is not entitled for damages or mesne profits @ Rs.5,000/- P.M from the defendants 1 to 3 from the date of filing of the suit, as prayed by him. Accordingly, this Issue answered against the plaintif.

21.Issue No.7:

Whether plaintif is entitled to get the decree passed for relief of permanent injunction, as prayed for or not?

PSCJC/GWK 23, 

The plaintif sought for permanent injunction restraining the defendants 1 to 5 from interfering with his possession and enjoyment over the plaint schedule properties and for his ingress and egress through plaint B schedule Common passage to reach the southern side 18 feet road. As clearly admitted by the P.W1 during his cross examination the property covered under Ex.A1 has been in the possession and enjoyment of D1 and her husband till his demise. The common passage is meant for ingress and egress of the northern side land owners to reach the southern side road as there is no direct access to the road from their respective sites. Now the plaint ‘A’ schedule property is in the possession and enjoyment of D1 to D3. Hence question of further interfering with the passage rights of plaintif over the plaint B schedule property by them does not arise. In such circumstances, s the plaintif is not entitled for the relief of permanent injunction against the defendants, as prayed for.

Accordingly, this Issue answered against the plaintif.

22.Issue No.8:. To what relief?

In the result, the suit is dismissed without costs.

Dictated to the Stenographer(Grade-1), transcribed by her, corrected and pronounced by me in open

court, this the 25 th day of April, 2019.

PRINCIPAL SENIOR CIVIL JUDGE,

GAJUWAKA.

PSCJC/GWK 24, 

APPENDIX OF EVIDENCE :- Witnesses examined for :- Plaintif :- Defendants :- Pw1: R.Krishna RaoDw1:B.Usha rani Pw2:B.Appa RaoDw2:K.Venkata Siva Pw3:K.Vijay Kumar Pw4:V.R.N.Patro

Exhibits marked for

Plaintif:-

Ex.A.1:dt.17.08.2007:Original registered sale deed executed in favour of plaintif. Ex.A.2:dt.07.02.2005:Certified copy of the registered sale deed executed in favour of plaintif’s vendor Ex.A.3&A.4:dt.09.04.2014 :Original Encumbrance certificates for the period from dt.16.08.20141.1.1983 to 15.08.2014 Ex.A.5:dt.--:Original bank pass book of plaintif’s Account with State Bank of India, Tirupathi Ex.A.6:dt.--:Discharge summary issued by CARE Hospital, Visakhapatnam.

Defendants: Ex.B.1:dt.---Copy of Train ticket Ex.B.2:dt.--Copy of the Pass book pertaining to the account payee NO. 15880100003572 with UCO Bank belongs to B.Nooka Raju Ex.B.3:dt.17.08.2007:Original regd. Sale deed bearing NO. 5852/2007 executed in favour of husband of 1st defendant. Ex.B.4:Original Gruhapravesam Invitation card Ex.B.5:Original electricity bill for the service connection bearing No.6334

Court: Ex.C1:dt.--Warrant issued in favour of Pw3 Ex.C2 to C5:dt.-Notice memos Ex.C6:dt.-Original report filed by Pw3 Ex.C7:dt.13.03.2018:Sketch issued by the Town surveyor Ex.C8 & C9:Positive photographs. Ex.C.10:Served copy of the witness summons to Pw4.

P.S.C.J./GWK.

PSCJC/GWK 25, PSCJC/GWK 26, PSCJC/GWK 27

1 CC 56/2016, VIII ACMMC/GWK

IN THE COURT OF VIII ADDL. CHIEF METROPOLITAN MAGISTRATE

VISAKHAPATNAM AT GAJUWAKA

PRESENT: Smt.P.Sri Satya Devi, VIII Addl.Chief Metropolitan Magistrate, Gajuwaka.

Tuesday , this the 25th day of April, 2017

C.C.56/2016

(Cr.No.217/2007)

This case was coming on 19-4-2017 for final hearing before me in the presence of learned Asst. Public Prosecutor for the Complainant and Sri K.N.D.,

Advocate for A1 to A4 and A6 to A11 and of Sri V.K.R and P.P, Advocate for A5 and

A12 and having stood over for consideration till this day, this Court doth the following :

JUDGMENT

A.Serial No. of the case;CC 56/2016 B.Date of commission of offence;15-10-2007 C.Name of the complainant;State represented by the Inspector of Police, Steel Plant Police Station, Visakhapatnam City. D.Name of the Accused person, his A1) Andiboina Raju, S/o Apparao, aged 22 parentage and residence;years,Settibalija,bycaste, Pittavanipalem, Pedagantyada Mandal, Visakhapatnam. A2) Kundri Manikyam, S/o late Apaprao, aged 25 years, Settibalija by caste, R/o Pittavanipalem, Pedagantyada Mandal, Visakhapatnam, N/o thotada near Anakapalli, Visakhapatnm. A3) Ralangi Ramana, S/o Jagannadham, aged 22 years, Gavara by caste, R/o Pittavanipalem, Pedagantyada Mandal, Visakhapatnam. A4) Karri durgarao, S/o Gowresu, aged 22 years, reddy by caste, R/o Karriveedhi, Pittavanipalem, Pedagantyada Mandal, visakhapatnam. A5) Medisetti Appalaraju, S/o late Pentayya, aged 20 years, Settibalija by caste, R/o Pittavanipalem, Pedagantyada Mandal, Visakhapatnam. *Amended as per orders in *A6) Bassa Ramana, S/o late Guruvulu,

Crl.M.P.259/17 in CC 56/16 aged 24 years, Reddi by caste, R/o

dt.1.5.17Pittavanipalem, Pedagantyada Mandal, VIII ACMM/GWKvisakhapatnam. A7) Relangi Paidiraju, S/o late Demudu, aged 20 years, Gavara by caste, R/o Pittavanipalem, Pedagantyada Mandal, 2 CC 56/2016, VIII ACMMC/GWK

Visakhapatnam. A8) Andiboina Sreenu, S/o Apparao, aged 20 years, Settibalija by caste, R/o Pittavanipalem, Pedagantyada Mandal, Visakhapatnam. A9) Seelam Apparaju @ S.Raju, S/o Joggarao, aged 20 years, Mangali by caste, R/o Pittavanipalem, Pedagantyada * A11 Vempada Narayana Rao @ Mandal, Visakhapatnam. Narayana, S/o Sdiyya, aged 32 A10) Yenama Reddi Reddy @ Tapela years, Pittavanipalem (V), Reddy, S/o late Adiyya, aged 35 years, Pedagantyada Mandal, Reddi by caste, R/o Pittavaniapalem Visakhapatnam.village,PedaganatyadaMandal, Visakhapatnam. Amended as per Orders in *A12) Kandula Trinadha Rao, S/o late

Crl.M.P.259/17 in CC 56/16 dt.1-5-Somaraju, aged 59 years, Vysya by

17.caste, R/o D.no.31-23-64, Near Simhala VIII ACMM/GWK Demudujunction,Allipuram, Visakhapatnam. E.Offense complainedU/s.379 or 411 IPC F.Plea of the Accused and Pleaded guilty examination if any G.Final Order Accused found guilty H.Date of such order 25.04.2017

1. State represented by the Inspector of Police, Steel Plant Police

Station, Visakhapatnam City filed charge sheet against A1 to A12 in Crime

No.217/2007 for the offence punishable under section 379 or 411 IPC.

2. As per the charge sheet, it is the case of prosecution that on 15-10- 2007 at 18.00hours Lw.1-Buridi Ganesh came to the Police station and reported that they have stored 33 drums containing OFC, RPG, power & UTP cables in the open yard of Instrumentation Ltd, Kota, Near Coke Oven area, inside

Visakhapatnam Steel Plant and on 15-10-07 at about 10.00 hours they found some unknown culprits committed theft of 24 core RPG 1.5sq. Mm Armored cables, measuring about 1011 meters worth of Rs.2.60 lakhs (Approximately) and requested for taking necessary action. A1 to A10 committed theft of above property and A11 and A12 having possession of stolen property. Basing on the report of Lw.1Buridi Ganesh a case in Crime No.217/2007 was registered u/s.379 3 CC 56/2016, VIII ACMMC/GWK or 411 IPC against A1 to A12 by Lw14-K.Nageswara Rao, former Inspector of

Police , and during the course of investigation, Lw.15 K.Ranga Raju, Former

Inspector of Police arrested A1 to A12 and recovered stolen property in the presence of mediators and after completion of investigation, Lw15 K.Ranga Raju,

Former Inspector of Police filed charge sheet against accused u/s.379 or 411 IPC.

3. My learned Predecessor has taken cognizance of the offences punishable u/s.379 or 411 IPC against A1 to A12 and after appearance of accused

before the Court, copies of documents were furnished to the accused as required

u/s.207 Cr.P.C., and A1 to A12 were examined u/s.240 Cr.P.C., explaining them in

Telugu the contents of charge sheet, the accused denied the contents of the charge levelled against them and claimed to be tried. The accused have stated that they have got means to engage an Advocate to defend their case.

4. After closure of prosecution evidence, A1 to A12 were examined under

Section 313(1)(b) Cr.P.C., by explaining incriminating evidence to them in Telugu, which were deposed by the prosecution witnesses against them, for which A1 to

A12 not admitted the same and have further stated that they have no defence evidence.

5. Heard both sides. Perused the record.

6. Now the point for determination is:-

1) Whether prosecution could prove commission of theft in the working site of CMC Limited, Hyderabad situated in

Visakhapatnam Steel Plant premises or not ?

2) Whether prosecution could bring home guilt of A1 to A11 for the offence punishable u/s.379 IPC beyond all reasonable doubt or not?

3) Whether prosecution could bring home guilt of A12 for the offence punishable u/s.411 IPC beyond all reasonable doubt or not?

4 CC 56/2016, VIII ACMMC/GWK

7. In order to prove its case, prosecution examined total Eleven witnesses as Pws.1 to 11 and exhibited seventeen documents under Exs.P1 to

P17 and M.Os.1 to 3. Out of Pws.1 to 11, the evidence of PW.2 was cancelled by this Court. Pw.3 to 8 did not support the prosecution case except admitting their signatures on the mediators report. Pw.1 is employee of CMC Ltd., who supported the prosecution case and the original report submitted by his the then colleague B.Ganesh (LW.1) was exhibited under Ex.P1. Pws.9 to 11 are investigating officers who deposed regarding their investigation and arrest of the accused with the stolen property in the presence of mediators. Pws.9 to 11 alone were cross examined by the defence counsel by denying their investigation and with a contention that they foisted false case against the accused.

Point.No.1:

8.It is the case of the prosecution that on 15-10-2007 at bout 6.00p.m

B.Ganesh(LW.1) came to the police station and submitted a report as their 33 drums containing OFC, RPG, power & UTP cables kept near Coke Oven area, inside Visakhapatnam Steel Plant and they found missing of 24 core RPG 1.5sq.

Mm Armored cables, measuring about 1011 meters worth of Rs.2.60 lakhs as the same were stolen away by some unknown culprits. Basing on it the then

Inspector of Police K.Nageswara Rao registered the case in Cr.No.217/07 and issued the FIR. To prove this content of charge sheet, the employee of CMC Ltd., was examined as Pw.1 whose evidence in chief goes to show that his colleague

B.Ganesh lodged the complaint on their company letter head as 1000 meters of cable wire belonged to their company was committed theft by some unknown offenders. The original report was exhibited under Ex.P1. His evidence was not denied by the accused by way of cross examining him. Hence the unchallenged oral evidence of Pw.1 coupled with Ex.P1 can be completely relied to accept the prosecution case in this regard.

5 CC 56/2016, VIII ACMMC/GWK

9. The then Inspector of Police of Steel Plant P.S. was examined as

Pw.9(K.Nageswara Rao) whose evidence in chief goes to show that he registered the Ex.P1 report and issued the original FIR which was marked under Ex.P14. The oral evidence of Pw.1 completely corroborated with P.W9 on this aspect. Pw.9 evidence in chief further goes to show that soon after registering the FIR, he examined Lws. 1, 2 and Pw.1 in the police station and recorded their statements and then he visited the scene which is situated near Coke oven in the Steel Plant premises. Though Pw.9 was cross examined by the counsel for A1 to A11, nothing was elicited to deny his evidence in chief regarding the registering of Ex.P14 on 15-10-2007. Thus prosecution could prove the ingredients of Ex.P1 by way of examining the material witnesses. This Court has no reason to suspect the oral testimonies of Pw.1 and Pw.9 to accept the theft of armored cable from the working yard of CMC Limited located in the Steel Plant premises. Accordingly this

Point is answered in favour of the prosecution.

10.POINT No.2:- 2) Whether prosecution could bring home guilt of A1 to

A11 for the offence punishable u/s.379 IPC beyond all reasonable doubt or not?

It is the further case of the prosecution that on 6-11-2017 A1 and A2 were caught hold by CISF constable who were cited as Lws.4 to 6 at Sinter Plant area repair shop area, inside Visakhapatnam Steel Plant while they were committed theft of two pieces of XLPE Trailing cable wire, total 5 meters worth of Rs.3,000/- and they handed over them in the police station along with their report, three scooters one moped and 5 meters of cable wire. In order to prove this accusation against A1 and A2, though prosecution initially examined Surendra Kumar Sahu (Lw.4) as Pw.2, his evidence was cancelled by this Court as he did not turn up to continue his chief examination and thereby to face the cross examination. Since the prosecution failed to produce Lws.5 and 6(Patil Umang Rayaba and Seshapu

Murali) their evidence was closed by this Court on 8-9-2015.

6 CC 56/2016, VIII ACMMC/GWK

11.As per the further case of the prosecution Pw.9 registered the report of Lw.4(Surendra Kumar Sahu) under Cr.No.231/07 under Section 379 IPC and interrogated A1 and A2 in the presence of mediators by name Lw.8 A,Surya

Chakram and Nimma Appalareddy(PW.5). Pw.9 evidence in chief though goes to show the same version, the original F.I.R. said to be registerd by him in

Cr.no.231/07 or the original report said to be submitted by Lw.4 was not filed

before this Court. The alleged mediators who was examined as Pw.5 did not

depose anything regarding the confession of A1 and A2 in his presence before

Pw.9. As such though the signature of Pw.5 on the mediators report dated 6-11- 2007 at 5.00p.m. was exhibited under Ex.P7, much reliance cannot be placed over the same to accept the confession of A1 and A2 regarding the alleged

Cr.No.231/07. Thus the prosecution failed to prove the accusation against A1 and

A2 pertaining to the Cr.No.231/07.

12.It is the further case of the prosecution that A1 and A2 confessed

before P.W9 that they along with A3 to A10 committed theft of copper wire from

open yard near Benjoil Plant , near Coke oven area, inside Steel Plant as per the direction of A11 and sold the same to A11 and spent money for their personal expenses. The alleged confession report of A1 and A2 dated 6-11-2007 was not proved by the prosecution even placing the said document before this Court through Pw.9. It is the further case of the prosecution that basing on the confession of A1 and A2 Pw.9 arrested A3 to A5 near moulding shop of

Silpareddy Prakasha Rao(LW.7) in the presence of Lw.10 Maddla Nooka Raju and

LW.11 Ayinam Rama Chellayya Naidu , when A3 to A6 were found with the possession of four ingots copper wire each weighing 20kgs, under the cover of mediators report. Lw.7 was examined as Pw.3 who did not depose anything supporting the prosecution version. During cross examination by the learned

A.P.P his 161 Cr.P.C statement was marked under Ex.P2. Except marking the same, the learned A.P.P did not elicit anything as P.W3 intentionally deposed 7 CC 56/2016, VIII ACMMC/GWK falsehood to help th accused as suggested to him. However PW.9 deposed that he arrested A3 to A8 on 30-11-2007 in the presence of mediators after seizing four ingots each weighing 20kgs from them under the cover of mediators report.

Such mediators report was marked under Ex.P15. Lws. 10 and Lw.11 were examined as Pw.4 and Pw.6 who admitted their signatures on Ex.P15 and the same were marked under Ex.P3 and Ex.P8. Pws. 4 and 6 are happened to be employees of CMC company. In view of their age and employment it cannot be believed that they simply signed on Ex.P15 even though nothing was happened as mentioned in Ex.P15. The signatures of A3 to A8 appearing on Ex.P15 is suffice to conclude that they were caught hold by the P.W9 in the presence of

P.W4 and 6. Though Pw.9 was cross examined by the defence counsel nothing was elicited to deny the entire occurrence covered under Ex.P15. This Court did not find any reason to attribute that Pw.9 deposed falsehood before this Court.

Information given by A11 related distinctly to the factum of recovery of stolen property. Section 27 of Indian Evidence Act clearly postulates as to how much of information received from accused may be proved. The unchallenged evidence of Pw.9 regarding Ex.P15 can be safely relied to conclude that he arrested A3 to

A8 in the presence of Pw.4 and 6 upon seizure of four coper ingots each weighing 20kgs. It seems Pws.3, 4 and 6 won over by A1 to A11. It is not mandatory that the evidence of investigating officer must be corroborated with the testimony of independent witnesses, when the oral testimony of such investigation officer not suffered with any infirmity. As such this Court has no reason to discard the oral evidence of Pw.9 coupled with Ex.P15. In view of the recitals of Ex.P15 the involvement of A1 and A2 along with A9 and A10 in commission of theft of valuble property worth of lakhs of rupees in the working yard of CMC Ltd., company can be accepted without hesitation.

13.It is the further case of the prosecution that in pursuance of the confessional statement of A3 to A8, Pw.9 arrested A11 on 3-12-2007 at about 8 CC 56/2016, VIII ACMMC/GWK 9.00p.m at Kondaiahvalasa junction, near Railway Track in the presence of Lw.10 and Lw.11(Maddla Nookaraju and Ayinam Rama Chellayya Naidu). Pw.9 evidence in chief goes to show that he arrested A11 in the presence of Pw.4 and Pw.6.

The original mediators report was marked under Ex.P16 and the signatures of

Pws.4 and 6 on it was marked under Ex.P4 and Ex.P9 . As already this Court came to a conclusion that Pw.4 and Pw.6 were won over by the accused, their signatures on Ex.P16 can be taken into consideration to accept the contents of said document regarding arrest of A11. The involvement of A9 and A10 pertaining to the commission of offence covered under the Cr.no.217/07 can be further accepted basing on Ex.P16.

14.It is the further case of the prosecution that in pursuance of confessional statement of A11, the then Inspector of Police of Steel Plant by name

K.Ranga Raju arrested A1 and A2 on 11-3-2008 at Jaiprakash junction, near compound wall of Steel Plant. Said Inspector of Police was examined as Pw.10, whose evidence in chief was not challanged by way of cross examination. As per his unchallenged evidence, he verified the investigation done by Pw.9 and found it on correct lines and he further deposed that he arrested A1 and A2 and sent them to court for judicial remand. He further deposed that on 23-3-2008 he produced A9 and A10 before the Hon'ble Court for judicial remand on execution on P.T. warrant. The material case record clearly goes to show the arrest and judicial remand of A1,A2,A9 and A10 which was completely tallied with the oral testimony of Pw.10. The unchallenged evidence of Pw.10 can be relied to accept the involvement of A1, A2, A9 and A10 in commission of offence pertaining to

Cr.no.217/07. The recovery of four ingots from the house of A11 can be noticed from Ex.P17 mediators report not only basing on the oral testimony of Pw.9 but also basing on the signatures of the mediators as well as A11 on Ex.P17. The seizure of said stolen property was reported to this court along with remand report of A11.

9 CC 56/2016, VIII ACMMC/GWK

15.In the light of the above discussed oral and documentary evidence, this Court has no reason to suspect or disbelieve or discard the oral testimonies of

Pw.9 and Pw.10 pertaining to the arrest of A1 to A11 upon their confession statements in the presence of mediators and so also upon recovery of the stolen copper wire which was melted into ingot worth of lakhs of rupees. Even though

Pw.3 to 6 not supported the prosecution case regarding arrest of accused and seizure of stolen property from them, it is not fatal to the prosecution case since the oral testimonies of Pw.9 and Pw.10 inspired very confidence in the mind of this Court about the commission of theft of copper wire nearly 1000mts by the

A1 to A10 with the directions of A11 from the working yard of CMC company Ltd., hence they are liable to be convicted for the offense punishable U/S 379 IPC.

Accordingly this Point answered in favour of the prosecution.

16.POINT No.3:- 3) Whether prosecution could bring home guilt of A12 for the offence punishable u/s.411 IPC beyond all reasonable doubt or not?

It is the accusation leveled against A12 by the prosecution that he purchased three copper ingots from A11 having knowledge that those are stolen property. As per the prosecution case A12 was arrested by the then Inspector of

Police Smt.Vimala Kumari B.H on 9-7-2008 at 10.00a.m at Simhalademullu junction, Allipuram, Visakhapatnam in the presence of LW.12-Gudhe

Suryanarayana and Lw.13 Arrepu Perayyasetti upon recovery of stolen property from him under the cover of mdiators report. Pw.11 is said Inspector of Police whose evidence in chief goes to show that she received reliable information about the suspects and on that she secured mediators and proceeded along with them and her staff to Simhala Devudu junction of Allipuram and she found A12 with three copper ingots in a gunny bag at about 10.00a.m and then she seized the same from him in the presence of mediators under the cover of mediators report.

The alleged mediators were examined as Pw.7 and Pw.8 who did not support the 10 CC 56/2016, VIII ACMMC/GWK prosecution case and their evidence not corroborated with the oral testimony of

Pw.10 but they also admitted their signatures on Ex.P18 which were marked under

Ex.P12 and P.13. The signature of A12 on Ex.P18 was not denied by him as well as by his counsel while cross examining Pw.11. The recovered property was marked under M.Os.1 to 3. When it was suggested to her during the cross examination that she did not affix the identity slips on M.Os.1 to 3, she categorically denied the same. Even though by the date of producing Mos.1 to 3

before this Court, said identification slips are not available, it shall not be the

ground to suspect the oral testimony of Pw.11 for the reason, there is every possibility of tearing of identification slips which was affixed nearly eight years ago by the date of its production before this court. Even though Pw.11 did not get any certification from the Steel Plant Authorities about copper wire description, it is not fatal to the prosecution case, since she clearly gave the explanation as after melting copper into ingot it is not possible to any one including the Steel Plant Authorities to give the certification regarding its original nature. As such the suggestion given to Pw.11 as she planted M.Os.1 to 3 for statistical purpose cannot be considered with much weight and this Court has no reason to suspect or disbelieve her evidence in chief coupled with Ex.P18. A12 could not throw doubt over the oral testimony of Pw.11 as she deposed falsehood before this Court even though he was not arrested by her under the cover of Ex.P18. When the oral evidence of Pw.11 not suffered with any infirmities or inconsistency, her sole oral testimony can be relied to accept the accusation leveled against A12. Hence it can be held that A12 purchased the

M.Os.1 to 3 from A11 having knowledge that those are stolen property. As such

A12 is liable to be convicted for the offence punishable under Section 411 IPC.

Accordingly this Point answered in favour of the prosecution.

11 CC 56/2016, VIII ACMMC/GWK

17.In the result, A1 to A11 found guilty for the offence punishable u/s.379IPC and A12 found guilty for the offence punishable under Section 411IPC and they are convicted thereunder section 248(2) Cr.P.C.,

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

me in open court on this the 25th day of April, 2017.

VIII ADDL.CHIEF METROPOLITAN MAGISTRATE,

GAJUWAKA.

On questioning on quantum of sentence accused stated as follows:-

Accused:

Upon questioning on quantum of sentence A1 to A11 reiterated that they have not committed any offence and they are leading their life by doing daily works. A12 also reiterated that a false case was foisted against him even though he has not committed any offence and he is running a Jewellary shop and having respect in the society. Taking facts and circumstances of the case into consideration, this Court is not inclined to take either lenient view agaist the accused while sentencing them or to release them under benevolent provision of PO Act. In view of the nature and manner of the offence, accused are liable to be convicted with imprisonment and fine.

In the result, A1 to A12 are sentenced to under go rigorous imprisonment for ONE YEAR and pay fine of Rs.1,000/- (Rupees one thousand only) each and in default of payment of fine, they are sentenced to undergo simple imprisonment for one month.

M.Os.1 to 3 and unmarked property if any shall be returned to the CMC Limited after expiry of appeal time. The remand period of accused shall be set off.

S/d P.Sri Satya Devi,

VIII ADDL.CHIEF METROPOLITAN MAGISTRATE

GAJUWAKA.

12 CC 56/2016, VIII ACMMC/GWK

APPENDIX OF EVIDENCE

On behalf of Prosecution: P.W.1 : Routh Krishna P.W.2 :Surendra Sahu P.W.3 : S.Prakas Rao P.W.4 :M.Nooka Raju P.W.5 : Nimma Appala Reddy P.W.6 : A.Rama Chellaiah Naidu P.W.7 : G.Suryanarayana P.W.8 : A.Perayya Setty P.W.9 : K.Nageswara Rao P.W.10 : K.Ranga Raju P.W.11 : Vimala Kumari Bh.

On behalf of Defence: NIL No.of Exhibits marked on prosecution side:

Ex.P1 is the complaint lodged by Lw.1 B.Ganesh.

Ex.P2 is 161 Cr.P.C statement of Pw.3 dt.12-7-2008.

Ex.P3 is signature of Pw.4 on mediators report dated 30-11-2007.

Ex.P4 is signature of Pw.4 on mediators report dated 3-12-2007.

Ex.P5 is signature of Pw.4 on mediators report dated 3-12-2007.

Ex.P6 is signature of Pw.4 on mediators report dated 11-3-2008

Ex.P7 is signature of Pw.5 on the copy of mediators report dated 6-11-2007

Ex.P8 is signature of PW.6 on mediators report dated 30-11-2007.

Ex.P9 is signature of PW.6 on mediators report dated 3-12-2007.

Ex.P10 is signature of PW.6 on mediators report dated 3-12-2007.

Ex.P11 is signature of PW.6 on mediators report dated 11-3-2008.

Ex.P12 is signature of PW.7 on mediators report dated 9-7-2008.

Ex.P13 is signature of PW.8 on mediators report dated 9-7-2008.

Ex.P14 is the original FIR

Ex.P15 is the mediator report dated 30-11-2007

Ex.P16 is the mediator report dated 3-12-2017

Ex.P17 is the mediator report dated 3-12-2007.

Ex.P18 is property i.e., Mos.1 to 3 seized report.

No.of Exhibits marked on Defence side:Nil

Material Objects :M.Os. 1 to 3 are the copper ingots. S/d P.Sri Satya Devi, VIII ACMM/GWK09.

13 CC 56/2016, VIII ACMMC/GWK

CALENDER AND JUDGMENT

IN THE COURT OF VIII ADDL. CHIEF METROPOLITAN MAGISTRATE VISAKHAPATNAM

AT GAJUWAKA

Judgment in : CC 56/2016

Date of Offence : 15-10-2007

Report / Complaint: 15-10-2007

Released on bail : A1 to A12 are on bail

Commencement of trial : 4-3-2015

Close of trial:31-3-2017

Sentence or Judgment: 25-4-2017

Explanation for delay and remarks: There is no delay

Name of the complainant:- State represented by the Inspector of Police, Steel Plant Police Station, Visakhapatnam City.

Name of the Accused:- A1) Andiboina Raju, S/o Apparao, aged 22 years, Settibalija, by caste, Pittavanipalem, Pedagantyada Mandal, Visakhapatnam. A2) Kundri Manikyam, S/o late Apaprao, aged 25 years, Settibalija by caste, R/o Pittavanipalem, Pedagantyada Mandal, Visakhapatnam, N/o thotada near Anakapalli, Visakhapatnm. A3) Ralangi Ramana, S/o Jagannadham, aged 22 years, Gavara by caste, R/o Pittavanipalem, Pedagantyada Mandal, Visakhapatnam. A4) Karri durgarao, S/o Gowresu, aged 22 years, reddy by caste, R/o Karriveedhi, Pittavanipalem, Pedagantyada Mandal, visakhapatnam. A5) Medisetti Appalaraju, S/o late Pentayya, aged 20 years, Settibalija by caste, R/o Pittavanipalem, Pedagantyada Mandal, Visakhapatnam. *A6) Bassa Ramana, S/o late Guruvulu, aged 24 years, Reddi by caste, R/o Pittavanipalem, Pedagantyada Mandal, visakhapatnam. A7) Relangi Paidiraju, S/o late Demudu, aged 20 years, Gavara by caste, R/o Pittavanipalem, Pedagantyada Mandal, Visakhapatnam. A8) Andiboina Sreenu, S/o Apparao, aged 20 years, Settibalija by caste, R/o Pittavanipalem, Pedagantyada Mandal, Visakhapatnam. A9) Seelam Apparaju @ S.Raju, S/o Joggarao, aged 20 years, Mangali by caste, R/o Pittavanipalem, Pedagantyada Mandal, Visakhapatnam. A10) Yenama Reddi Reddy @ Tapela Reddy, S/o late Adiyya, aged 35 years, Reddi by caste, R/o Pittavaniapalem village, Pedaganatyada Mandal, Visakhapatnam. *A10 Vempada Narayana Rao @ Narayana, S/o Sdiyya, aged 32 years, Pittavanipalem (V), Pedagantyada Mandal, Visakhapatnam. *A12) Kandula Trinadha Rao, S/o late Somaraju, aged 59 years, Vysya by caste, R/o D.no.31-23-64, Near Simhala Demudu junction, Allipuram, Visakhapatnam.

Offence : U/s.379 or 411 IPC

Finding: A1 to A12 are found guilty

Result:-

In the result, A1 to A11 found guilty for the offence punishable u/s.379IPC 14 CC 56/2016, VIII ACMMC/GWK and A12 found guilty for the offence punishable under Section 411IPC and they are convicted thereunder section 248(2) Cr.P.C. A1 to A12 are sentenced to under go rigorous imprisonment for ONE YEAR and pay fine of Rs.1,000/- (Rupees one thousand only) each and in default of payment of fine, they are sentenced to undergo simple imprisonment for one month. M.Os.1 to 3 and unmarked property if any shall be returned to the CMC Limited after expiry of appeal time. The remand period of accused shall be set off.

VIII ADDL.CHIEF METROPOLITAN MAGISTRATE,

GAJUWAKA.L.AGISTRATE

AFDSF* A1dfsdfsdfsdfsdf *A11 Vempada Narayana Rao @ Narayana, S/o Sdiyya, aged 32 years, Pittavanipalem (V), Pedagantyada Mandal, Visakhapatnam.

Amended as per Orders in Crl.M.P.259/17 in CC 56/16 dt.1-5-17.

VIII ACMM/GWK

VIII ACM

1 OS 242/2009-ASCJ/GWK

IN THE COURT OF THE ADDL.SENIOR CIVIL JUDGE AT GAJUWAKA

PRESENT:- Smt.P.SRI SATYA DEVI,

ADDITIONAL SENIOR CIVIL JUDGE

GAJUWAKA.

MONDAY , THE 24th DAY OF APRIL, 2017

O.S.No.242/2009

Between :-

Smt.Ayithi Demudamma, W/o Ramu,

Hindu, aged 35 years, residing at D.No.1-51/1,

Duddupalem village, Chodavaram Mandal,

Visakhapatnam District, presently camp at Gajuwaka,

Visakhapatnam.

.. Plaintif And :-

1.Maravathu Madhusudhana Rao, S/o late Seshagiri Rao, aged about 50 years, residing at D.No.7-15,

Sathivanipalem, Jaggayyapalem Post, BHPV(via),

Visakhapatnam-12.

*2.Smt.Maravathu Ambojamma, W/o late Seshagiri Rao, [DIED]* aged about 75 years, residing at D.No.7-15,

Sathivanipalem, Jaggayyapalem Post, BHPV (via),

Visakhapatnam-12.

3.Smt.Kolla Aruna Kumari, D/o late Seshagiri Rao, aged about 52 years, residing at Venkateswara Colony,

Sheela Nagar, Visakhapatnam-12.

. .. Defendants

This suit is coming before me for final hearing on 10-4-2017 in the presence of Sri K.V.Swamy, Advocate for the plaintifs and of Sri Pothina Rambabu,

Advocate for Defendants 1 and 3 and 2nd defendant died, and having stood over the matter for consideration till this day, this Court delivered the following:-

JUDGMENT

1.This suit filed by the plaintif against the defendants for permanent injunction restraining the defendants and their men from ever interfering with her possession and enjoyment over the plaint schedule property in an extent of

Ac.1.98cents in S.No.80/2 of Jaggarajupeta village.

2 OS 242/2009-ASCJ/GWK

2.The case of the plaintifs in brief is as follows:-

(a) She is the absolute owner of the suit schedule property which is in an extent of 1.98cents in S.No.80/2 of Gajuwaka Sub Registrar,

Visakhapatnam as she purchased the same under a registered sale deed dated 27-5-2009 from Kuramdas Apparao and others who in fact acquired the said property under a Will dated 18-9-1967 executed by their father, paternal aunt and uncle. Since from the date of purchase she has been in un-interrrupted possession and enjoyment of the same.

(b)Her vendors raised a thatched hut in some part of the schedule property and leased out the same and enjoyed the said property without any hindrance from whom soever and after purchasing the suit schedule property the plaintif also has been enjoying the same without any interruption.

(c)While the matter stood thus, on 29-9-2009 when she proposed to remove the bushes in the suit schedule property, the defendants and their men, who are no way concerned with the suit schedule property made an attempt to dispossess her but it was resisted by herself and her husband and passers by. Even though she asked the defendants to show their documents pertaining to the schedule property, they did not show the same and in turn threatened her that they will dispossess her from the schedule property by mobilizing more force. Since the defendants are chronic litigants with much of influence and trying to grab the schedule property with a view to cause loss and harm to the plaintif, she was constrained to file this suit for permanent injunction to protect her lawful possession over the schedule property from the interference of the defendants by way of seeking the relief of permanent injunction against them.

3.On receipt of suit summons, defendants made their appearance and filed written statement by negating the plaint averments including the title, possession and enjoyment of the plaintif and her vendors over the schedule 3 OS 242/2009-ASCJ/GWK property. The sum and substance of their written statement is as follows:

(a) In fact Ac.1.92cents of landed property was purchased by

Maravathu Seshagiri Rao and his father-in-law Naguboyina Sambayya from

Kurmadasu Sanyasi under a registered sale deed bearing document No.677/1963

dated 5-4-1963 and from ever since they enjoyed the same with absolute rights.

M.Seshagiri Rao is no other than the father of defendants 1 and 3 and husband of 2nd defendant. N.Sambayya is no other than the father of 2nd defendant. The father of defendants 1 and 3 lost his breath on 25-10-2007. Since then the schedule property has been in exclusive possession and enjoyment of defendants 1 to 3. Due to the fire accident the original registered sale deed was destroyed along with other properties and documents of the defendants.

(b) Out of Ac.1.92cents, Ac.1.32cents is share of Kurmadasu Sanyasi and remaining Ac.0.60cents belongs to his brother of China Appanna. In the sale deed dated 5-4-1963 it is clearly recited that the schedule property was mortgaged by Kurmadasu Sanyasi on 2-7-1954 and for the purpose of discharging outstanding mortgage deed, he sold the same and said mortgage debt was discharged by him on 4-4-1963 and delivered the property to the vendee. Except the father of defendants 1 and 3 no body else ever enjoyed the property to the knowledge of one and all.

(c) The father of defendants 1 and 3 filed suit in O.S.101/2005 on the file of VII Addl. District, Visakhapatnam in relation to said Ac.1.32cents out of 1.92cents , when his physical possession and enjoyment and was interfered by the defendants therein. After his demise, the defendants 1 to 3 were impleaded as legal representatives in that suit. Temporary injunction was also granted vide orders in I.A.388/2005 in O.S.101/2005 dated 26-7-2005. When there was a threat of violation and breach of peace, the father of the defendants 1 and 3 filed I.A.408/2005 in O.S.101/2005 and the Hon'ble VII Addl. District Judge granted police aid as per orders dated 2-8-2008 to deliver the said property to him. Thus from July, 2005 he along with the defendants herein enjoyed the schedule 4 OS 242/2009-ASCJ/GWK property with the police aid till his demise and thereafter the defendants continued the same. In the year 2009 the agreement of sale was created for the purpose of filing this suit, for the land covered under sale deed dated 5-4-1963.

The plaintif obtained exparte injunction orders by misleading the Court even though she never in possession and enjoyment of the suit schedule property. Due to increase of the land values plaintif and her vendors created said document which do not bind the defendants or their father and grandfather

(d) Even according to the settlement fair adangal filed by the plaintif,

Kurmadas Sanyasi and his brother China Appanna were shown as pattadar of the schedule property. According to the settlement fair adangal there is another pattpadar by name Kurmadasu Kalamma. In such case how can one among three pattadars possess the entire extent and bequeathed the same which is not permissible under law. The Will said to be executed by Kurmadasu Kalamma is a cooked up and concocted document. As per the recitals of the document

dated 27-5-2009 it is a registered agreement of sale but not registered sale deed

as contended by the plaintif. The plaintif trying to mislead the Court with false pleadings. The settlement fair adangal and village account were also seems to have been manipulated as they do not bear the date of issuance. If a certified copy is issued there will be the date of application, date of preparation, date of making them ready and the date on which day it is delivered . But the documents filed by the plaintif are totally silent in this regard.

(e) Apart from acquisition of the Ac.1.92cents under registered sale deed

dated 5-4-1963 the defendants have also perfected their title by openly

enjoying the same from the last 47 years. Hence the family of Kurmadas or his members have no right, title, possession or interest in the property after it was sold to father of defendants 1 and 3 and father of D2. The plaint schedule property has been in possession and enjoyment of the defendants. Neither the plaintif nor her vendors never in possession and enjoyment of the same. Hence the plaintif cannot maintain the suit for permanent injunction. The defendants 5 OS 242/2009-ASCJ/GWK cannot be prevented from enjoying the property basing on the misrepresentation of facts by the plaintif. There is no cause of action to file this suit. Therefore, the defendants prayed the Court to dismiss the suit with costs.

4.On perusal of the pleadings, documents filed on either side, the following issues were settled for trial by my learned predecessor in office on 28-10-2010.

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

2. Whether the plaintif is in possession and enjoyment of the schedule property?

3. Whether the suit is not maintainable?

4. To what relief?

5. During the course of trial, plaintif herself got examined as Pw.1 and exhibited two documents. She examined one of her alleged vendors as Pw.2 and exhibited two documents through him under Ex.A3 and Ex.A4, apart from examining one of the attestor of ExA1 as PW.3. On the other hand, 1st defendant himself got examined as DW.1 and exhibited nine documents under Ex.B1 to B9 and the contradictions during cross examination of Pw.1 was marked under

Ex.B10 and Ex.B11.

6.Heard the arguments advanced by both the counsel and perused the oral and documentary evidence adduced on either side.

7.ISSUE No.2:-

2. Whether the plaintiff is in possession and enjoyment of the schedule property?

Pw.1(Ayithi Demudamma) being a plaintif reiterated the plaint averments.

In her chief examination affidavit as she is absolute owner of the suit schedule 6 OS 242/2009-ASCJ/GWK property since she purchased the same under registered sale agreement cum

G.P.A dated 27-5-2009 from Kuramadas Apparao and others. In support of her oral evidence the certified copy of registered sale agreement cum G.P.A was exhibited under Ex.A2. In a suit for simplicitor permanent injunction, though the title of the plaintif need not be the primary consideration, it can be gone through incidentally since plaintif pleaded that she has been in lawful possession and enjoyment of the schedule property by the date of filing of the suit from the date of purchasing the same. Pw.1 evidence and her pleadings are completely silent about quantum of sale consideration paid by her under Ex.A2. During cross examination Pw.1, Ex.B11(contradictions of her earlier deposition in

O.S.301/09) was marked which shows that she has not paid any sale

consideration to her father while obtaining Ex.A2. One of the vendors of plaintif was examined as Pw.2(K.Ramana) who is no other than the own brother of Pw.1.

Though his evidence in chief also stood on same lines with that of evidence of

Pw1 regarding the execution of Ex.A2. He also categorically admitted in the cross examination that he did not remember his share of sale consideration received under Ex.A2. As such the recitals of Ex.A2 that plaintif paid Rs.49,50,000/- sale consideration to her vendors on 27-5-2009 proved to be false. As rightly contended by the defendants in their written statement Ex.A2 is not a sale deed as averred in the plaint. As such the so called lawful possession of the plaint schedule property delivered to plaintif on 27-5-2009 cannot be accepted.

8.It is the further evidence of Pw.1 that her vendors acquired the suit schedule property by virtue of the Will dated 18-9-1967 said to be executed by their father, paternal aunt and uncle. In support of her oral evidence the original unregistered Will dated 18-9-1967 exhibited under Ex.A1. It is the evidence of

Pw.1 and Pw.2 that said Will came into force and the beneficiaries of said Will enjoyed the same till it was sold to plaintif under Ex.A2. As per the defence of the defendants also the so called executants of Ex.A1 are no more. The title 7 OS 242/2009-ASCJ/GWK bequeathed to the vendors of the plaintif under this document should be proved by the plaintif to accept her vendors lawful possession over the schedule property prior to the date of Ex.A2. As clearly admitted by Pws.1 and Pw.2, there is no documentary evidence with them to show that the beneficiaries of

Ex.A1 had been in possession and enjoyment of the schedule property till the date of executing Ex.A2. The learned defendants counsel argued that Ex.A1 is a fabricated document collusively brought into existence to fabricate Ex.A2. He has drawn the attention of this Court over the recitals of Ex.A1. As per the recitals of Ex.A1 it was mentioned that the testators are the residents of Jaggarajupeta village of Gajuwaka Mandal. As rightly argued by the defendants counsel by 18-9-1967 Gajuwaka was not a Mandal and it was Panchayat only. As such to clear of that ambiguity pertaining to the said recital the scribe of said document must be examined by the plaintif but she did not do so. As such the execution of

Ex.A1 on 18-9-67 shrouded by the suspicious circumstances. The pleadings and evidence of Pw.1 and Pw.2 is completely silent as to whether one of the beneficiaries of Ex.A1 i.e., Kurmadasu Lakshmayya was alive or not by the date of Ex.A2. Assume a while that Ex.A1 came into force subsequent to the death of the testators of the same. All the beneficiaries of the said document are equally entitled to claim possession over the said Ac.1.98cents and they all should transfer the law full possession to the plaintif under Ex.A2. In the absence of one of such beneficiary, plaintif cannot canvass that lawful possession was delivered to her under Ex.A2.

9.It is the further evidence of Pw.1 that her vendors raised a thatched hut in some part of the schedule property and leased out the same. Thus they enjoyed the schedule property without any hindrance and after purchasing the same she has been continuing the same enjoyment without any interruption.

But during her cross examination she clearly admitted that plaint schedule property was not leased out by her or her vendors. Pw.2 also clearly admitted 8 OS 242/2009-ASCJ/GWK that plaint schedule property was never let out to any one. By way of eliciting this evidence the defendants could succeeded to argue that the case set up by the plaintif and the evidence of Pws.1 and 2 in this regard is false.

10.Coming to the threat of dispossession of plaintif from the schedule property which lead to filing of this suit. As per the evidence of Pw.1 on 19-9- 2009 when she proposed to remove the bushes in the plaint schedule property, the defendants and their men, who are no way concerned with the same made an attempt to dispossess her but the same was resisted by her and her husband with the help of passersby. In fact according to the plaint averments the alleged threat of dispossession was made on 29-9-2009 but not on 19-9-2009 as mentioned in the chief examination affidavit of Pw.1. However during cross examination Pw.1 evidence was completely shaken in this regard. She pleaded ignorance about the date when the defendants and their men made an attempt to dispossess them from the schedule property. Her further evidence in cross goes to show that his brother and mother who are very much present in the schedule property on the date of highhanded attempt made by the defendants who informed to them about the same which is nothing but self contradictory evidence. Pw.2 evidence in chief is completely silent about his presence on the date of alleged interference. Since the oral evidence of Pw.1 and her pleadings are not consistent regarding this aspect, much reliance cannot be placed over her sole oral testimony to accept the alleged interference with the possession of plaintif by the defendants in the month of September, 2009.

11.DW.1 evidence in his chief examination affidavit is nothing but replica of his written statement as they are absolute owners of the schedule property and have been in possession and enjoyment of the same till the date of his evidence from the date of its purchase by his father and grandfather. In support of his oral evidence nine documents marked under Ex.B1 to Ex.B9 which needs no discussion, for the reason in a suit for simplicitor permanent injunction no 9 OS 242/2009-ASCJ/GWK finding need to be given as to whether defendants are in possession and enjoyment of the schedule property or not, in the absence of any counter claim pleaded by them. As such it is quite irrelevant to decide the possession of the defendants over the schedule property by the date of prelit or pendent lite . It is the initial burden of the plaintif to establish her pleadings with all probabilities as she was in possession and enjoyment of the schedule property by the date of filing of the suit and has been continuing the same. Though Dw.1 was cross examined by the plaintif's counsel nothing could be elicited to show that plaintif has been in possession and enjoyment of the schedule property from the date of

Ex.A2 till the date of filing of the suit.

12. In order to disprove the pleadings and evidence of Pw.1 she was thoroughly cross examined by the defendants counsel. During her cross examination two contradictions marked in the certified copy of her deposition as

DW.1 in O.S.301/2009. As per Ex.B10 contradiction, the thatched hut belongs to

M.Seshagiri Rao situated in the disputed property and except that there are no other house in and around the thatched hut. As such the pleadings of the plaintif that her vendors raised the thatched hut in the schedule property proved to be false.

13.In the light of the above discussion, this Court is of the opinion that plaintif failed to prove her pleadings with sufficient oral or documentary evidence as she has been in lawful possession and enjoyment of the schedule property, having purchased the same under registered sale agreement cum GPA.

Accordingly, this Issue is answered against plaintif.

14.ISSUE No.1 and 3 -

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

3. Whether the suit is not maintainable?

Since plaintif failed to prove that she was in possession and enjoyment of the plaint schedule property by the date of filing of the suit and also failed to 10 OS 242/2009-ASCJ/GWK prove that the defendants tried to interfere with the alleged possession and enjoyment, the defendants should not be sufered with a decree of permanent injunction against them as prayed by the plaintif. Thus the suit is not maintainable. Accordingly these Issues are answered against the plaintif.

15.ISSUE No.4 - To what relief?

In the result, suit dismissed with costs.

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

me in the open Court, this the 24th April, 2017.

ADDL.SENIOR CIVIL JUDGE,

GAJUWAKA.

APPENDIX OF EVIDENCE

Plaintif :- Defendants :- P.W.1:- Ayithi Demudamma DW.1:M.Madhusudana Rao

PW.2:- K.Ramana

PW.3:- M.Appalaswamy Naidu

Exhibits marked for :-

Plaintifs :-

Ex.A1 / 18-9-1961:Original unregistered will executed by K.Kalamma and two others.

Ex.A2 /27-5-2009 :Certified copy of registered sale agreement cum GPA executed in favour of plaintif.

Ex.A3/-: True copy of the adangal pahani pertaining to land in an extent of Ac.1.98cents situated in S.No.80/2 issued by Dy.Tahsildar of

Gajuwaka.

Ex.A4/-: True copy of the fair adangal issued Dy. Tahsildar of Gajuwaka, pertaining to the plaint schedule property .

Defendants :- Ex.B1/ 5-8-2016 :Original letter issued by the office of the Sub-Registrar, Visakhapatnam as the entry relating to document No.677/1963 was damaged.

Ex.B2 /6-9-2016 : True copy of the adangal and from-I B pertaining to land in

S.No.80/2V.

Ex.B3/8-8-2016 :Original certificate of encumbrance.

11 OS 242/2009-ASCJ/GWK

Ex.B4/16-8-2016 original certificate of encumbrance.

Ex.B5/-: Certified copy of neat copy of plaint the O.S.101/2005 on the file of VII Addl. District Court, Visakhapatnam.

Ex.B6 /26-7-2005 : Certified copy of the warrant in I.A.388/2005 in O.S.101/05.

Ex.B7/-: Certified copy of order in I.A.408/2005 in O.S.101/2005.

Ex.B8/-: Bunch of electricity bills and receipts pertaining to the service connection bearing No.1164932162000452( 4 in number)

Ex.B9/-: Five positive photographs along with CD.

Exs.B10 and Ex.B11 are the certified copies of the deposition of Pw.1 in

O.S.301/2009 who gave evidence as Dw.1 therein

ASCJ GWK 12 OS 242/2009-ASCJ/GWK

Date of presentation:20-10-2009 Date of filing:23-10-2009

IN THE COURT OF THE ADDL.SENIOR CIVIL JUDGE AT GAJUWAKA

PRESENT:- Smt.P.SRI SATYA DEVI,

ADDITIONAL SENIOR CIVIL JUDGE

GAJUWAKA.

MONDAY , THE 24th DAY OF APRIL, 2017

O.S.No.242/2009

Between :-

Smt.Ayithi Demudamma, W/o Ramu, Hindu, aged 35 years, residing at D.No.1-51/1, Duddupalem village, Chodavaram Mandal, Visakhapatnam District, presently camp at Gajuwaka, Visakhapatnam. .. Plaintif And :-

1.Maravathu Madhusudhana Rao, S/o late Seshagiri Rao, aged about 50 years, residing at D.No.7-15,

Sathivanipalem, Jaggayyapalem Post, BHPV(via),

Visakhapatnam-12.

*2.Smt.Maravathu Ambojamma, W/o late Seshagiri Rao, [DIED]* aged about 75 years, residing at D.No.7-15,

Sathivanipalem, Jaggayyapalem Post, BHPV (via),

Visakhapatnam-12.

3.Smt.Kolla Aruna Kumari, D/o late Seshagiri Rao, aged about 52 years, residing at Venkateswara Colony,

Sheela Nagar, Visakhapatnam-12.

. .. Defendants

This suit filed by the plaintif against the defendants for permanent injunction restraining the defendants and their men from ever interfering with her possession and enjoyment over the plaint schedule property in an extent of

Ac.1.98cents in S.No.80/2 of Jaggarajupeta village.

The plaintif valued the suit @ of Rs.1,00,000/- since the relief sought is not capable of verification and a court fee of Rs.3526/- is paid thereon u/s.26(c) of

Art. I(b) & (c) of Sch.I of A.P.C.F. and S.V.Act.

13 OS 242/2009-ASCJ/GWK

This suit is coming before me for final hearing on 10-4-2017 in the presence of Sri K.V.Swamy, Advocate for the plaintifs and of Sri Pothina Rambabu,

Advocate for Defendants 1 and 3 and 2nd defendant died, and having stood over the matter for consideration till 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 the plaintif do pay to the defendants a sum of Rs.4,802/- towards costs of the suit.

(Copy of plaint schedule and valuation slip are herewith enclosed).

Given under my hand and the seal of the Court, this the 24th day of April, 2017.

ADDL.SENIOR CIVIL JUDGE,

GAJUWAKA

MEMORANDUM OF COSTS

For plaintif:For defendant:

No costs memo is filed. Stamp on vakalat : Rs. 2-00

Sr.Advocate fee : Rs. 4700-00

Type charges : Rs. 100-00 ------------------- Costs allowed Rs. 4802-00 -------------------

ASCJ/GWK

1 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

IN THE COURT OF SPECIAL SESSIONS JUDGE FOR TRIAL OF

CASES UNDER SC & ST (POA) ACT-CUM-XI ADDITIONAL

DISTRICT JUDGE, VISAKHAPATNAM

APVS000031702018 Present: SMT. P.SRI SATYA DEVI, Spl. Sessions Judge for trial of cases under SC & ST (POA) Act-cum- XI Addl. District Judge, Visakhapatnam.

Tuesday, this the 12th day of May, 2026

SESSIONS CASE No.141/2018

(Cr.No.384/2016 of Airport Police Station)

Name of the Complainant : State represented by the Asst. Commissioner of Police, North Sub division, Visakhapatnam city.

Name of the accused :A1:KilaparthiVenkatarao, S/o Sannibabu, 50 years, K.Velama caste, D.No.39-22-34/9, Kalinga Nagar, M.N.R.Prak, Lansum Greens SouthRoad,Madhavadhara, Visakhapatnam. A2:KilaparthiNirmala, W/o Venkatarao, 43 years, K.Velama caste, D.No.39-22-34/9, KalingaNagar,M.N.R.Prak, Lansum Greens South Road, Madhavadhara, Visakhapatnam.

2 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

Date, time and Place of On 19.09.2016 at Sabastian Colony, Offence :Gnanapuram,Madhavadara, Visakhapatnam.

Charges :Under Section 506(ii) r/w. 34 of IPC, Section 3(1)(s) and 3(2)(va) of SC and ST (POA) Act, 2015 against A1 and A2.

Plea of the accused :Accused pleaded not guilty

Prosecution conducted by : Sri B.Meena, Special Public Prosecutor, Spl.Sessions Judge’s Court for trial of Cases under SCs & STs (POA) Act, Visakhapatnam.

Accused was defended by : Sri P.Rama Rao, Advocate for Accused.

This case is coming on 05.05.2026 for final hearing before me in presence of Sri B.Meena, Special Public Prosecutor for the State and of

Sri P.Rama Rao, Advocate for Accused, and the same is having stood over for consideration till this day and this court delivered the following:

J U D G M E N T

This case arises from the charge sheet laid by the prosecution in

Crime No. 384/2016 of Airport Police Station, Visakhapatnam city for the offence punishable under Section 506(ii) r/w.34 IPC and Section 3(1)(s), 3(2)(va) of SC and ST (POA) Act, 2015 against A1 and A2.

3 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

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

The case of the prosecution is, defacto complainant/ Pasalapudi

Nageswara Rao(LW.1) lodged a report stating that after his retirement in Steel Authority of India Ltd., Visakhapatnam, he gave Rs.20 lakhs out of his retirement benefits to accused, when they promised that the amount would be invested in their new KITES Educational Society and he would get back double of the investment amount in three months; but accused who gave some Non-judicial stamp papers in return, did not stand on his promise and failed to return the amount. When LW.1 visited the house of accused on 19.09.2016 and demanded them to return his amount, accused threatened him with dire consequences and abused him touching his caste.

The report of LW.1 on 04.10.2016 at 13.00 hours, was registered by LW.7/ Inspector of Police, Airport Police Station as case in

Cr.No.384/2016. As per the proceedings of the Commissioner of Police vide RC.No.5164/C4/2016, dt.04.10.2016. LW.8/Asst. Commissioner of

Police, North Sub Division, investigated the crime by visiting the scene of offence, prepared rough sketch of scene of offence and examined LWs.1 to 5 and recorded their statements. Subsequent investigation done by his successor LW.9/Asst. Commissioner of Police,

West Sub Division. LW.9 obtained 4 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

caste certificates of accused and LW.1 from the concerned revenue official as LW.1 belongs to Adi Andhra SC-community and accused belongs to Koppulavelama BC-D community. Upon serving notice

U/Sec.41-A Cr.P.C, presence of accused were secured and upon obtaining preliminary bonds from them for their future appearance final report was filed against them for the aforesaid sections.

Cognizance & Charge:

3.The material on record reveals that this court took cognizance for the offence under Section 506(ii) r/w,34 IPC and

Section 3(1)(s), 3(2)(va) of SC and ST (POA) Act, 2015 against accused 1 and 2 and registered the same as S.C.No.141/2018.

On receipt of summons, Accused 1 and 2 appeared before the court and engaged counsel. They were furnished with copies of documents under Section 207 of Cr.P.C.

The Special Public Prosecutor opened the case under section 226 Cr.P.C by bringing about the charge and by what evidence she proposes to prove the guilt of the accused. Under section 228 Cr.P.C accused were examined and they denied the accusation. Hence, the charge Under Section 506(ii) r/w.34 IPC and Section 3(1)(s), 3(2)(va) 5 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

of SC and ST (POA) Act, 2015 , framed, read over and explained to them in Telugu for which they pleaded not guilty and claimed for trial.

Evidence adduced by the prosecution:

4.Out of 9 cited witnesses by the prosecution, 7 witnesses were chosen to be examined as PWs.1 to 7, since the defacto complainant (LW.1) died and the evidence of LW.3/P.Sruthilaya daughter of defacto complainant was given up by the prosecution.

Examination under Section 313 Cr.P.C:

5.Accused examined under Section 313 Cr.P.C with the incriminating evidence adduced against them, for which they pleaded innocence and contended that they had not committed any offence as alleged except having money transaction with defacto complainant.

Defense of the Accused:

6.The defense of accused is total denial of the prosecution case and he pleaded that he had not committed any offence as alleged in the report.

7.Heard thearguments advanced by either counsel.

8.The point arose for determination in this case is as follows:

6 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

1. Whether the prosecution could bring home

guilt of A1 and A2 for the offence punishable

under Section 506(ii) r/w. 34 of IPC and Section

3(2)(va) of SC and ST (POA) Act, 2015 beyond

reasonable doubt or not?

2. Whether the prosecution could bring home

guilt of A1 and A2 for the offence punishable

under Section 3(1) (s) of SC and ST (POA) Act,

2015 beyond reasonable doubt or not?

POINT No.1:

9.PW.1/ P.Sankeerthana being a daughter of defacto complainant cum eye witness to the alleged threatening caused to her father by the accused, deposed in chief that when her father demanded the A1 and A2 for payment of his investment of Rs.20,00,000/-, by going to their house on 19.09.2016, both the accused became furious and behaved aggressively with him by abusing him in filthy language upon touching their caste. On that their father reported the incident on 04.10.2016, to the concerned police. She confirmed the signature of her father on such report and it was marked under Ex.P1.

During the cross examination it was elicited that she was watching the incident by standing outside of their house, when the incident was occurred at the house of accused. As further clearly admitted by her she was not with her father at the time of alleged 7 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

threatenings and as admitted by her she did not enter into the house of accused on that day. Admittedly and evidently the report was lodged after 15 days of the incident and no explanation was offered for such delay which is fatal to the prosecution case. At later point of cross examination she categorically admitted that accused agreed to return their amounts what ever received by them from their father.

Upon close evaluation of above discussed evidence of

PWs.1 this court observed that there was a money transaction between the accused and father of PW.1 and accused paid

Rs.2,00,000/- at the time of marriage of PW.1 in the year 2015 and another Rs.2,00,000/- upon the death of her father in the month of

April, 2021, which was not traversed. As such accused made part payment of the amounts received by them from the defacto complainant and agreed to return the remaining balance amount payable by them. The alleged aggressive behaviour of accused towards the defacto complainant cannot be accepted basing on the sole oral testimony of PWs.1, who is certainly an interested witness.

Admittedly she was not beside her deceased father at the time of alleged threatenings. Though she deposed that accused house is beside their house and the threatenings can be heard from their house, it cannot be accepted in the absence of any corroboration to 8 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

the evidence of PW.1. Thus the evidence of PW.1 did not inspire any confidence regarding the criminal intimidation said to be caused by the accused to the defacto complainant.

10.PWs.2/Chinthada Siva and PW.3/Chinthala Phani Kumar are said to be eye witnesses to the alleged threatenings, but they did not completely support the prosecution version but as elicited from them an altercation was took place at the house of LW.1 in the afternoon time but they did not depose anything about the presence of accused at there. As such the contradictory statements marked under Exs.P2 and P3 during their cross examination, cannot be completely relied to conclude that they were won over by the accused and deposed falsehood. Thus the evidence of PWs.2 and 3 not at all favorable to the prosecution version.

11.Coming to the evidence of investigation officers i.e.,

PW.5/N.V.Prabhakara Rao, PW/6/V.Bheema Rao and PW.7/L.Arjun. The evidence of PW.5 regarding registration of the crime and issuance of

Ex.P6 FIR not traversed by the accused. As such the investigation basing on such report, done by PWs.6 and 7 can be looked into. As elicited from PW.6, PW.1 family is residents of Sabastian colony, 9 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

Gnanapuram and PWs.2 and 3 are also residents of same area. The rough sketch of the scene of offence marked under Ex.P8. As could be seen from the same coupled with the evidence of PW.6, the scene of offence is located at Kalinga Nagar but not at the house of PWs.1 to 3 at Sabastian colony. As elicited from Pw.6 the origin for dispute is due to financial transaction. As further deposed by PW.6, the alleged threatenings took place in the balcony of accused house sitauted in 1st floor of the building, which is not the evidence of PW.1. Thus basing on the testimonies of PWs.1 and 6 which are not corroborated with each other, the case of the prosecution that accused 1 and 2 threatened the defacto complainant with dire consequences cannot be well accepted. The whole manner of the incident as well as the place of occurrence remained doubtful, for the reasons stated supra. As such the fina report filed by PW.7 against the accused for the charge under Section 506 (ii) r/w.34 IPC and 3(2)(va) of SC and ST POA Act cannot be well accepted. Accordingly, this point answered against the prosecution.

POINT No.2:

12.It is the case of the prosecution that the defacto complainant belongs to schedule caste whereas accused belong to 10 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

other than the schedule caste. Having knowledge of the same accused abused the deceased defacto complainant in filthy language touching his caste within the public view. By way of examining the revenue officials who is the then Tahsildar of Visakhapatnam Urban as

PW.4/M.Nagabhushana Rao, the prosecution could establish that PW.1 belongs to Adi Andhra Schedule caste whereas accused belong to

Koppula Velama BC-D community. Though PW.4 was cross examined nothing could be elicited to discard his evidence in chief except eliciting the residential address of victim and the accused at different places. However it no way effect the official capacity of PW.4 to verify and confirm their caste identities, since both places are located within his jurisdiction.

13.Though PW.1 deposed that accused abused her father in filthy language touching their caste, it was not supported by any independent evidence. Thus the evidence on record is insufficient to hold that within a public view deceased defacto complainant was humiliated by accused with all knowledge of his caste identity. As such benefit of doubt goes to the accused. Accordingly, this point answered.

11 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

14.In the result, A1 and A2 found not guilty for the offences punishable under Section 506(ii) r/w.34 IPC and 3(2)(va) of SC and ST (POA) Act, 2015 and Section 3(1)(s) of SC and ST (POA) Act, 2015.

They are acquitted thereunder Section 235(1) Cr.P.C, the bail bonds of accused shall stand canceled and they are set at liberty.

Dictation given to the Stenographer Gr.I, transcribed by her, corrected and

pronounced by me in the open court, on the 12 th day of May, 2026.

Sd/- P.Sri Satya Devi

Spl. Sessions Judge for Trial of Cases Under SC & ST (POA) Act-cum- XI Addl.

District Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

Witness examined on behalf of

Prosecution: Defence

PW.1: P.Sankeerthana -None- PW.2: Chinthada Siva PW.3: Chinthala Phani Kumar PW.4: M.Nagabhushana Rao PW.5: N.V.Prabhakara Rao PW/6: V.Bheema Rao PW.7: L.Arjun

Documents marked on behalf of

Prosecution:

Ex.P1 : Signature of LW.1 on report dated 4.10.2016 marked through PW.1

Ex.P2 : 161 Cr.P.C.statement of PW.2 marked through him

Ex.P3 : 161 Cr.P.C.statement of PW.3 marked through him 12 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

Ex.P4 : Letter dated 07.04.2018 issued by PW.4 marked through him.

Ex.P5 : Letter dated 27.03.2018 issued by PW.4 marked through him.

Ex.P6 : Registered FIR marked through PW.5

Ex.P7 : Original proceedings, dated 04.10.2016 marked through PW.6.

Ex.P8 : Rough sketch of the scene of offence marked through PW.6.

Ex.P9 : Original proceedings, dated 10.07.2017 marked through PW.7.

Documents marked on behalf of Defence: - NIL -

MATERIAL OBJECTS: - NIL -

Sd/- P.Sri Satya Devi

Spl. Sessions Judge for Trial of Cases Under SC & ST (POA) Act-cum- XI Addl.

District Judge, Visakhapatnam.

Copy to: The Registrar (Judl.), High Court of Andhra Pradesh, Amaravathi. (Through e-courts) 13 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

C A L E N D A R

IN THE COURT OF SPECIAL SESSIONS JUDGE FOR TRIAL OF

CASES UNDER SC & ST (POA) ACT-CUM-XI ADDITIONAL

DISTRICT JUDGE, VISAKHAPATNAM

APVS000031702018 Present: SMT. P.SRI SATYA DEVI, Spl. Sessions Judge for trial of cases under SC & ST (POA) Act-cum- XI Addl. District Judge, Visakhapatnam.

SESSIONS CASE No.141/2018

(Cr.No.384/2016 of Airport Police Station)

Name of the Complainant : State represented by the Asst. Commissioner of Police, North Sub division, Visakhapatnam city.

Name of the accused :A1:KilaparthiVenkatarao, S/o Sannibabu, 50 years, K.Velama caste, D.No.39-22- 34/9, Kalinga Nagar, M.N.R.Prak, Lansum Greens South Road, Madhavadhara, Visakhapatnam. A2:KilaparthiNirmala, W/o Venkatarao, 43 years, K.Velama caste, D.No.39-22- 34/9, Kalinga Nagar, M.N.R.Prak, Lansum Greens South Road, Madhavadhara, Visakhapatnam.

14 S.C.No.141/2018, dt.12.05.2026 SC&ST (POA) ACT-cum-XI ADJ/VSP.

Date, time and Place of On 19.09.2016 at Sabastian Colony, Offence :Gnanapuram,Madhavadara, Visakhapatnam.

Date of complaint : 13.08.2018

Date of apprehension : Sec.41-A Cr.P.C. notice served

Whether the accused is in Bail Jail or on bail :

Date of Commitment :--

Date of commencement of trial :06.02.2026

Date of Closure of Trial :15.04.2026

Date of Judgment : 12.05.2026

Explanation for the delay :No unavoidable delay.

Finding :

In the result, A1 and A2 found not guilty for the offences punishable under Section 506(ii) r/w.34 IPC and 3(2)(va) of SC and ST (POA) Act, 2015 and Section 3(1)(s) of SC and ST (POA) Act, 2015. They are acquitted thereunder Section 235(1) Cr.P.C, the bail bonds of accused shall stand canceled and they are set at liberty.

Sd/- P.Sri Satya Devi

Spl. Sessions Judge for Trial of Cases Under SC & ST (POA) Act-cum-XI Addl.

District Judge, Visakhapatnam.

1

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AT

GAJUWAKA

Present:- Smt.P.SRI SATYA DEVI,

PRINCIPAL SENIOR CIVIL JUDGE,

GAJUWAKA

Wednesday, the 24th day of April, 2019

O.S.62/2018

Between :-

Salapu Sanyasi Rao S/o. Appanna, Hindu, aged about 47 years, resident of D.No. 14-249. Kothuru RH-1 Colony, Pedamadaka (PO),

Gajuwaka, Visakhapatnam-530 046, Aadhar Card NO.

647452382225, Cell NO. 9010029123.

..Plaintif And :-

Smt. Salapu Rupa W/o. Srinivasa Rao, Hindu,aged about 35 years, resident of H.No.1, Salapuvanipalem, Maredupudi Panchayat, Maredupudi Post, Anakapalli Mandal, Visakahpatnam District, Cell No. 9949318688. ….Defendant

This Suit is coming before me for final hearing on 16.04.2019 in the presence of Sri S.E.Rao, Advocate for the Plaintif and Sri

K.A.Lakshmana Rao, Advocate for the Defendant and upon hearing and considering the material on record, this matter having stood over for consideration till this day, this court delivers the following:-

JUDGMENT

1.This suit filed by the plaintif for recovery of an amount of

Rs.10,15,000/- basing on a Promissory note transaction dt:28.09.2016 with subsequent interest thereon and for costs.

2

2. The contention of the plaintif in brief is as follows:

The defendant borrowed an amount of Rs. 7,50,000/- from him on 28.09.2016 for the purpose of her family expenses and clearance of his sundry debts, by executing a demand promissory note in his favour and agreed to repay the said debt with interest @ 24% p.a. either to the plaintif or to his order on demand. Since the defendant failed to pay either interest or principal amount inspite of repeated demands made by him, he was constrained to file this suit for recovery of debt covered under the promissory note with interest. Hence, the suit.

3.On receipt of suit summons, the defendant made her appearance and filed her written statement by denying the plaint averments in total:

The sum and substance of written statement is as follows:

(a).There is no debtor and creditor relationship between herself and plaintif. The suit promissory note was fabricated by the plaintif in collusion with his wife, attestors and scribe and it is a rank forged document. In fact, the wife of the plaintif by name Salapu Atchiyyamma is close relative to her and she arranged her marriage with one Salapu

Srinivasa Rao of Sealapuvanipalem village H/o. Maredupudi. Her daughter sufered with cancer decease at the age of six years. By that time, wife of plaintif used to visit her house and used to stay some period at there, under the colour of sympathy to help herself and her deceased daughter.

3

Thus, the wife of plaintif developed intimacy with the villagers of

Salapuvanipalem and Maredupudi and started chit business saying that if the subscribers/members pay a sum of Rs.1000/- every month for span of 12 months, thereafter, she will return Rs.15,000/- to them by contributing

Rs.3,000/- as interest or bonus. In that manner, she started chits under the name and style of Varalakshmi Chit. Their villagers used to participate in that chit which were commenced prior to Varalakshmi Vratham and closed one month prior to Varalakshmi Vratham of the next year, in order to buy a gold or gold lakshmidevi idol with that amount. She started another chit during the month of December and chit period will be 12 months and it will be closed in the month of December of next year popularly known as

Sankranthi chit. With that amount, subscribers can buy new clothes or other articles for Pongal. Accordingly, she made believed the villagers of

Salapuvanipalem and Maredupudi and conducted the unauthorised chits for some times smoothly. Thereafter, she has not paid the chit amount to the subscribers on due dates and there by financial disturbances started at that juncture. On that the villagers brought pressure upon the defendant as the wife of plaintif introduced to the villagers through her only. On that the husband of the defendant beat her black and blue and drove her from the house as she allowed the plaintif’s wife to stay some brief periods in his house and caused the nuisance. At that time, the plaintif and her wife took the defendant to their house and promised that they will settle the chit claims to the respective members/subscribers. She believed 4 their representation and kept quite for sometime. But the members of the chits used to mount up their pressure on the defendant to see that their chit claims are settled through the plaintif’s wife. When she asked the plaintif and his wife to settle the chit claims to the members, they used to post pone the same on one pretext or the other. Finally, the chit members gave complaint against the plaintif for misappropriation of chit amounts.

Since the defendant demanded the plaintif and her wife to settle claim of the chit members, they created the suit promissory note against her by forging her signature. They filed this suit only as a counter-blast and in order to sub due their illegal goal of avoiding payment of chit amount to the respective subscribers.

(b).The plaintif had no capacity to lend any amount to the plaintif and she had no necessity to borrow such huge amount. The interest claimed by the plaintif is penal, exorbitant and usurious in nature.

She is an agricultural coolie, hence, she is entitled for the benefits of Act 4 of 1938. There is no cause of action to file this suit and the alleged cause of action is not true and correct. She prayed the Court to dismiss the suit with exemplary costs, since it is frivolous and vexatious.

4.On perusal of the pleadings, documents filed on either side, the following issues were settled for trial :

5 1.Whether the suit promissory note dt. 28.09.2016 is true, valid and supported by consideration of Rs.7,50,000/- or not?

2. Whether the plaintif is entitled to get the decree passed for suit claimed amount as prayed for or not?

5.During the course of trial, plaintif himself examined as PW.1 and exhibited two documents under Exs.A.1 & A.2, apart from examining one of the attestors of Ex.A.1 as Pw2. On the other hand, defendant herself examined as Dw1, but not adduced any other oral or documentary evidence.

6. Heard the arguments of plaintif’s counsel and no arguments submitted on behalf of defendant. Perused the oral and documentary evidence available on the record.

7.ISSUE No.1 : Whether the suit promissory note dt. 28.09.2016 is true, valid and supported by consideration of Rs.7,50,000/- or not?

Pw1(S.Sanyasi Rao) being a plaintif reiterated the plaint averments in his chief examination affidavit as defendant borrowed an amount of

Rs.7,50,000/- from him on 28.09.2016 upon execution of Ex.A.1 promissory note, in his favour, in the presence of attestors and scribe and agreed to repay the said debt with interest @ 24% p.a.., but failed to pay 6 either interest or repay principal debt inspite of his repeated requests and demands. Hence, he was constrained to file this suit.

In order to substantiate his oral evidence, he examined the 1st attestor of Ex.A.1 promissory note as Pw2(T.Chinna Rao) whose evidence in chief completely stood on same lines as the money transaction of

Rs.7,50,000/- took place between the plaintif and defendant in his presence on 28.09.2016 at the house of plaintif.

8.Per contra, it is the evidence of Dw1(S.Rupa) that Ex.A.1 promissory note is a rank forged document collusively brought into existence by the plaintif along with his wife only as a counter-blast, to avoid the pressure of the chit members who paid the amounts to the wife of plaintif towards the instalments of unauthorised chits conducted by her. It is the further evidence of Dw1 that plaintif had no capacity to lend huge amount of

Rs.7.50,000/-.

In order to disprove such oral evidence of Dw1, plaintif exhibited his statement of Loan account in Co-operative Bank, Kurmannapalem branch,

dt. 15.09.2016 which shows that he availed loan of Rs.10,00,000/- as on

15.09.2016. No cross-examination was done to Pw1 on this particular bank statement. Hence, no reason found by this Court to discard the oral evidence of Pw1 coupled with the entries in Ex.A.1 and thereby to accept the defendant’s contention regarding the financial incapacity of the 7 plaintif. In these circumstances, the defence taken by the defendant about plaintif's financial capacity can be treated as vague.

9.Pws.1 and 2 were subjected to cross-examination by the defendant’s counsel about the correctness of Ex.A.1. But nothing could be elicited to deny their evidence in chief. Pw1 during the cross-examination clearly deposed that defendant is his relative and they never did any chit business along with the defendant. He further clearly deposed that the scribe of

Ex.A.1 is resident of Visakhapatnam, whereas the 1st attestor of Ex.A.1 is resident of Marripalem and 2nd attestor is resident of Visakahaptnam and

Ex.A.1 transaction took place at his house at Aganampudi at about 3.00pm or 4.00 pm. He further deposed that both the attestors are relatives to himself and defendant. He categorically denied the suggestions given by the defendant to the extent of his defence.

Pw2 also clearly deposed in the cross-examination as he was asked by both the parties to be witness for the money transaction between them and in his presence only, plaintif lent the amount to the defendant. His evidence relating to the residential address of 2nd attestor and scribe of

Ex.A.1 completely corroborated with the evidence of Pw1. No adverse evidence could be elicited from Pw2 during his cross-examination to hold that he deposed falsehood in order to help the plaintif, even though money transaction never took place in his presence on 28.09.2016 . As such, this Court has no reason to discard his oral evidence.

8

10.Dw1 clearly admitted in the cross-examination that till date of filing of this suit, there was a cordial relationship between their families and she further admitted that she did not file any documentary proof regarding the alleged unauthorised chits conducted by the wife of plaintif. Had really the wife of plaintif collected amounts from the villagers of

Salepuvaniplem and Maredupudi, there would be many persons to depose against the plaintif in this suit, especially when they allegedly pressurized the defendant to get the amounts from the wife of plaintif. Except the sole oral testimony of Dw1, no acceptable proof of evidence adduced by her to consider the alleged ill-motive of the plaintif for fabricating Ex.A.1 against her. She further clearly deposed that in view of their family relationship, plaintif and his wife gave shelter to her for a while when her husband necked out her from his house. So allowing the defendant to reside in the house of plaintif for a while cannot be the ground to hold that due to the fault of the plaintif's wife only, defendant was necked out by her husband, in the absence of placing any probable evidence on behalf of the defendant to the extent of her such defense.

11.On close evaluation of the above discussed oral testimonies of

Pws.1,2 and Dw1, this Court is of the opinion that there is no evidence on record to improbablise the plaintif’s case. Plaintif could discharge the initial evidential burden lies upon him to prove the execution of Ex.A.1 by 9 defendant, by way of examining Pw2 whose evidence is quite consistent and by marking the suit document. Hence, now the onus of proof shifts on the defendant to disprove the execution of Ex.A.1 and its consideration and to prove that it is a fabricated one, but she failed to do so. As such, this Court has no reason to believe that Ex.A.1 is a rank forged document and collusively brought into existence by the plaintif as contended by the defendant. Defendant did not take any steps to prove that she is no way concerned with the signature on Ex.A.1. In these circumstances, basing on the consistent oral testimonies of Pws.1 and 2 coupled with Ex.A1, it can be held that defendant borrowed an amount of Rs.7,50,000/- from the plaintif upon execution of Ex.A.1, in his favour on 28.09.2016 and failed to repay the said debt with interest as agreed by her and now contesting the suit with false defence in order to avoid her liability covered under Ex.A.1.

Accordingly, this Issue answered in favour of the plaintif.

12.Issue No.2:

Whether the plaintif is entitled to get the decree passed for the suit claimed amount as prayed for, or not?

In view of the conclusion arrived by this Court while answering the above issue, plaintif is entitled to get the decree passed in his favour and against the defendant, for the suit claimed amount and he is further entitled for subsequent interest at simple rate on the principal sum 10 adjudged of Rs.10,15,000/- under section 34 of CPC. Accordingly, this

Issue answered in favor of the plaintif.

13. In the result, the suit is decreed with costs against the defendant for an amount of Rs.10,15,000/- (Rupees Ten Lakh and fifteen thousand only) with subsequent interest thereon at the rate of 12% p.a., from the date of filing of the suit till the date of decree and thereafter at the rate of 6%p.a thereon till the date of realization.

Dictated to Stenographer(Grade-I), transcribed by her, corrected and pronounced by me in the

open court, this the 24th day of April, 2019.

PRINCIPAL SENIOR CIVIL JUDGE,

GAJUWAKA.

APPENDIX OF EVIDENCE :- Witnesses examined for :-

Plaintif :- Defendant :-

Pw1:S. Sanyasi Rao Dw1:S.Rupa Pw2:T.Chinna Rao

Exhibits marked for :- Plaintif :-

Ex.A.1: dt.28.09.2016 :Original promissory note executed in favour of plaintif for Rs,7,50,000/-

Ex.A.2: dt.15.09.2016: Certified copy of statement of loan account of plaintif in Co-operative Bank, Kurmannapalem.

Defendant :- Nil

P.S.C.J./GWK.

11 12