Smt. Radhika Nettem

C.C.No.624/2019 Date:31-12-2019

II AJMFC, TNK

IN THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

TANUKU

PRESENT: Smt.N.RADHIKA

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS

FAC/II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS, TANUKU (Tuesday, the 31st day of December 2019)

Calendar Case No.624/2019

Between:

The State- Sub Inspector of Police, Tanuku Rural Police Station. … Complainant

And

Kunda Raju …Accused

This case is coming today for final hearing before me in the presence of A.Ravi Prasad Learned APP for the State and of Sri T. Nehru, learned counsel for Accused and upon hearing the arguments of both sides and perusing the record and having stood over for consideration till this day, the Court delivered the following:

-::J U D G M E N T::-

1. This is a case filed by the Sub Inspector of Police, Tanuku Rural Police

Station, against the Accused in Cr.No.135/2019 for the offences punishable U/secs.380 and 411 of Indian Penal Code, 1860, (Hereinafter refer to as IPC for the sake of brevity).

2. The case of the prosecution in a Nut shell is as follows:

i) In the month of August 2018 Accused committed theft of Gold mangala suthrams weighing about 8 grams of Goddess Sri Seetha Devi in Ramalayam situated in Meraka veedhi of Velpuru village; and that LW.1/P.Rama Venkata Satyanarayana, who is chairman of Ramalayam committee, lodged a report to the police.

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ii) Basing on the report of LW.1, LW.12/N.Srinivas Rao-SI of Police registered as case in Cr.No.135/2019 for the offence Punishable U/sec.379 of IPC and investigated into. During the course of investigation, LW.12 visited the scene of offence, observed the same and prepared rough sketch and also examined all the prosecution witnesses and recorded their statements. On 17.05.2019 at 2.00 PM,

LW.11/R.Mallikharjuna Reddy-SI of Police, Narasapuram Town PS arrested the

Accused near Kanakadurga Temple in Roya peta of Narasapuram Town in the presence of mediators LW.7/K.Sasidhar Babu and LW.8/K.Subba Rao in Crime No.111 of 2019 and got recorded the confession statement of Accused, in which, the Accused admitted the commission of offence and further confesed that he pledged the stolen property in Kosamattam Finance at Nidadavole on 20.12.2018 for Rs.16,000/-. Then

LW.11 got drafted a detailed mediators report on 17.05.2019. In pursuant to the confession, Accused led LW.11 and mediators to Kosamattam Finance Limited and then Manager Sri Palangi Raja Sekhar produced the stolen property and LW.11 seized the same and affixed the identity slips on the packet. Later LW.12 produced the

Accused before this Court on execution of PT warrant. After completion of investigation, he filed charge sheet against Accused. Hence the charge.

3. On receipt of the charge sheet, this case was taken on file for the offences punishable U/secs.380 and 411 of IPC against the Accused.

4. On appearance of Accused, copies of case documents are furnished to him as contemplated U/sec.207 of Code of Criminal Procedure, 1973 (herein after refer to as Cr.P.C for the sake of brevity).

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5. The Accused is examined U/sec.239 of Cr.P.C and he denied the accusation. A charge for the offence U/sec.380 or 411 IPC have been framed against him, read over and explained to him, for which, Accused pleaded not guilty and claimed to be tried.

6. During the trial, the prosecution examined PW.1 to PW.5 and got exhibited

Ex.P1 to Ex.P5 and MO.1. The evidence of LW.2/Yadlapalli Srinivas, LW.3/Putta Hari

Prasad, LW.4/Gunnam Ganeswara Rao, LW.5/Chundru VIswanadham, LW.6/Bodapati

Venkata Appa Rao, LW.8/Kothapalli Subba Rao, LW.10/Rameswarapu Nagababu are given up by learned Assistant Public Prosecutor.

7. After closure of prosecution side evidence, the Accused is examined

U/sec.313 Cr.P.C and the incriminating material available in the testimonies of prosecution witnesses is read over and explained to him in Telugu, for which, he denied the same and reported no defence witness on his behalf. Hence the evidence of

Accused is closed.

8. Heard the arguments of learned Assistant Public Prosecutor and learned

Counsel for Accused. Perused the record.

9. Now the points germane for my determination are::-

1. Whether the prosecution has proved and established the guilt of Accused

for the offence punishable U/sec.380 of IPC beyond reasonable doubt?

2. Whether the prosecution has proved and established the guilt of Accused

for the offence punishable U/sec.411 of IPC beyond reasonable doubt?

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10. According to the case of prosecution, PW.1 is the defacto complainant,

PW.2 & PW.3 are the Village Revenue Officers and PW.4 & PW.5 are the investigating officers. This Court has gone through the entire testimonies of PW.1 to PW.5 which are very much available on record and hence the same are not reproduced here to avoid repetition.

11. Point No.1::-

Whether the prosecution has proved and established the guilt of Accused

for the offence punishable U/sec.380 of IPC beyond reasonable doubt?

11.1. In order to convict the Accused for the offence punishable U/sec.380 of

IPC, the prosecution has to establish that the Accused committed theft of MO.1 without consent of the concerned authority.

11.2. In order to prove the guilt of the Accused for the offence stated supra, the prosecution has placed its reliance upon the testimonies of PW.1, PW.2 and PW.5 coupled with Ex.P1/report, Ex.P2/property identification report, Ex.P4/FIR and

Ex.P5/Rough sketch and MO.1.

11.3. It is the evidence of PW.1, who is President of Ramalayam temple that in the month of January, 2019 new committee was formed; and that at the time of handing over the temple properties to their committee by the old committee, they found missing of mangalasutram of goddesses Sithammavaru, weighing about 8 grams; and that they questioned the old committee, they informed that the said Mangalasutrams were committed theft by unknown persons in the month of August, 2018; and that after discussing with the new committee, he gave Ex.P1/report to the police about missing of

Mangalasutrams. It is the further evidence of PW.1 that after 2 weeks Tanuku Rural 4 of 13

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police informed him that MO.1/two Mangalasutrams were recovered. In the cross examination, PW.1 denied the suggestion that he gave Ex.P1 report at the instance of police for statistical purpose.

11.4. It is the evidence of PW.2, who is Village Revenue Officer that on 01.06.2019 at 8.30 AM, he received phone call from SI of Police, Tanuku Rural PS; and that he along with LW.10/R.Nagababu-VRA went to the police station and police informed him that they have recovered the stolen property and informant is ready to identify the property; and that from the Police Station, they went to Government High

School situated adjacent to the police station, found PW.1 and police there and police shown the Mangalasutrams to PW.1 and PW.1 identified the same as stolen items; and that police prepared Ex.P2/property identification report; and that he along with LW.10 singed on it. In the cross examination, PW.2 deposed that he did not obtain any written permission from the MRO; and that MO.1 was with the police when he reached the police station. PW.2 denied the suggestion that PW.1 did not identify MO.1 in his presence and he does not know the features of the property; and that no property identification was conducted in his presence and Ex.P2 was prepared at the police station and he signed on it at the instance of police.

11.5. It is the evidence of PW.5 that on 11.05.2019 at 11.00 AM, PW.1 came to

Police Station and presented Ex.P1/report and basing on it, he registered as case in

Crime No.135/2019 and issued Ex.P4/FIR. It is the further evidence of PW.5 that he visited the scene of offence i.e. Meraka veedhi, Ramalayam temple situated in Velpuru, observed the same and prepared Ex.P5/rough sketch and also examined PW.1,

LW.2/Y.Srinivasu, LW.3/P.Hari Prasad, LW.4/G.Ganeswara Rao,

LW.5/Ch.Viswanadham and LW.6/B.Venkata Appa Rao and recorded their statements.

It is the further evidence of PW.5 that on 17.05.2019 he received information from PW.4 5 of 13

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that Accused confessed about this offence in the mediators report conducted in Crime

No.111 of 2019 of Narasapur Police Station; and that he obtained mediators report along with seized property i.e. MO.1 from PW4; and that on 19.05.2019 he produced the Accused before this Court for judicial remand on execution of PT warrant. It is the further evidence of PW.5 that on 01.06.2019 he conducted property identification parade through PW.2 and LW.10/R.Naga Babu and PW.1 identified MO.1 and PW.2 drafted Ex.P2; and that on completion of investigation, he filed charge sheet. In the cross examination, PW.5 deposed that he has not examined the old committee members of Ramalayam Temple; and that he did not obtain any written permission from the Tahsildar to take the assistance of VRO. PW.5 denied the suggestion that newly elected committee temple has no knowledge about the gold property; and that he has not examined the witnesses; and that Accused never confessed about this offence and nothing was seized from his possession; and that Accused is no way concerned with this case and he was falsely implicated basing on the mediators report of Narasapuram

Police Station.

11.6. The learned Assistant Public Prosecutor argued that from the testimonies of PW.1, PW.2 and PW.5 coupled with Ex.P1, Ex.P2, Ex.P4 and Ex.P5 and MO.1, it clinchingly shows that the Accused made an entry into Ramalayam Temple and committed theft of MO.1 and hence, the Accused is liable for conviction for the offence punishable U/sec.380 IPC.

11.7. The learned counsel for the Accused vehemently argued that the none of the prosecution witnesses deposed that the Accused made an entry into Ramalayam

Temple and committed theft of MO.1 and there is no direct evidence in order to convict the Accused for the above said offence and prayed the Court to acquit the Accused.

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11.8. It is the contention of the learned counsel for the Accused that from the cross examination of PW.1 that no offence was occurred in the Temple and no property was committed theft in this case on hand. PW.1 is the President of Ramalayam Utsava

Committee, Velpuru village and there is no dispute to that effect. Accused did not pose the said suggestions to PW.2 and PW.5. Being President of Ramalayam, PW.1 has no necessity to give Ex.P1 report as a fashion without any occurrence of theft. Further,

PW.5 being Investigating Officer does not have any fashion to register FIR without making out any cognizable offence. When all the testimonies of PW.1, PW.2 and PW.5 are cumulatively and carefully scrutinized, it could be seen that the evidence of PW.1,

PW.2 and PW.5 are very clear that MO.1 was committed theft from Ramalayam

Temple.

11.9. It is not the case of PW.1, PW.2 and PW.5 that the Accused committed theft of MO.1. Even Ex.P1 report reveals that some unknown offender committed theft of MO.1. The testimony of PW.5 coupled with Ex.P4 FIR also reveals the same fact. It is not the case of the prosecution that the Accused caught hold red handedly while committing theft of MO.1 from Ramalayam Temple. There is no direct evidence in-order to say that the Accused committed theft of MO.1 from Ramalayam Temple. Without having any direct evidence, it cannot be said that the Accused made an entry into

Ramalayam Temple and committed theft of MO.1. Under these circumstances, this

Court is of the considered opinion that it is unsafe to convict the Accused for the offence punishable U/sec.380 IPC. Further, it is not case of the Accused that MO.1 belong to him. Thus, this Court is of the considered opinion that MO.1 is stolen property. This point answered accordingly.

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12. Point No.2:

Whether the prosecution has proved and established the guilt of Accused

for the offence punishable U/sec.411 of IPC beyond reasonable doubt?

12.1. In order to convict the Accused for the offence U/sec.411 of IPC, the prosecution has to establish that the Accused was in possession of MO.1, soon after committing theft.

12.2. In order to prove the guilt of the Accused for the above said offence, the prosecution has placed its reliance upon the testimonies of PW.3 to PW.5 coupled with

Ex.P3 mediators report and MO.1.

12.3. The learned Assistant Public prosecutor would contend that by examining

PW.3 to PW.5 and by exhibiting Ex.P3/mediators report and MO.1, the prosecution proved that MO.1 was recovered from the possession of Accused and hence, the

Accused is liable for conviction for the offence U/sec.411 IPC.

12.4. On the other hand the learned counsel for the Accused vehemently contended that there is no corroboration between the testimonies of PW.3 to PW.5 and the presence of PW.3 and PW.4 at the time of Ex.P3 mediators report is doubtful. The learned counsel further contended that Ex.P3 does not contain recovery pertaining to this case and hence recovery is not proved and prayed to acquit the Accused under benefit of doubt.

12.5. It is the evidence of PW.3 that on 17.05.2019 at 2.00 PM, he received phone call from SI of Police, Narasapuram Town PS and requested him to come to

Kanakadurgamma temple situated in Raypeta, then he along with LW.8/K.Subba Rao, 8 of 13

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their VRA went there and found the Accused on a motorbike; and that they enquired the

Accused, but he did not give proper answer; and that SI of Police enquired the Accused, for which, he confessed that he used to commit theft in the temples and also confessed that he committed theft of two mangalasutrams in Ramalayam temple, Velpuru in the month of December 2018 and pledged the same in a finance company; and that the

Accused also confessed about the committing of thefts in other crimes. It is the further evidence of PW.3 that SI of Police taken the Accused to the police station and from there, they went to Kosamattam Finance Company situated in Nidadavole and enquired the Manager and he had shown the gold two mangalasutras which were pledged and

Manager also shown the other gold items pertaining to other crimes. It is the further evidence of PW.3 that SI of Police seized all the gold items and he drafted the confession statement of the Accused in Rayapeta and also drafted Ex.P3 seizure report in Kosapatnam Finance Company of Nidadavole; and that he along with LW.8/K.Subba

Rao singed on the report; and that he can identified the Accused and SI of Police affixed punch slips on the seizure property and Police took him to custody. In the cross examination, PW.3 denied the suggestion that he never seen the Accused in Rayapeta on 17.05.2019 and Accused never confessed anything; and that nothing was seized from the possession of Accused in their presence; and that Accused never committed any theft and never pledge the gold items in Kosamattam Finance Company,

Nidadavole; and that Accused was never apprehended in their presence; and that he never seen the Accused and he has shown him since he is in the dock. PW.3 deposed that police did not seize the documents pertaining to the alleged pledge.

12.6. It is the evidence of PW.4 that on 17.05.2019 on credible information, he along with his Staff, PW.2 and L.W.10/R.Naga Babu proceeded to Kanakadurgamma temple situated in Rayapet and conducted vehicle checking; and that at that time, they found the Accused coming on a bike Honda Neuo motors bearing No.AP37 BS 4765; and that on suspicion, he stopped the vehicle and enquired the Accused, but he did not 9 of 13

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give proper answer; and that he again enquired the Accused, for which, he confessed that he used to commit theft in the temples and also committed theft of two mangalasutras in Ramalayam temple of Velpur in December, 2018 and pledged the same in a Finance Company; and that he also confessed about committing of thefts in another crimes ie., Cr.No.111/2019 of Narasapuram Town PS for the offence U/sec.380

IPC. It is the further evidence of PW.4 that he has taken the Accused to Police Station and from there, they went to Kusamattam Finance Company situated in Nidadavole and enquired, the Manager and he has shown the two gold mangalasutras which were pledged and also other gold items pertaining to Cr.No.111/2019 of their PS and also other crimes; and that later he seized all the gold items in eight crimes of Cr.No.120/19 of Penugonda PS, Cr.No.135/18 of Tanuku Rural PS, etc., he got drafted the confessional statement of Accused in Rayapeta and also drafted the seizure report in

Kosamattam Finance company of Nidadavaole through PW.3 and seized the gold items. It is the further evidence of PW.4 that on the same day at 6.00 PM, they also proceeded to Manapuram Finance Limited of Nidadavole basing on the confession of

Accused; and that he enquired the Manager of Mannapuram Finance and the Manager shown the mangalasutrams and gold chain which were pledged and he seized the same as which were pertaining to Cr.No.113/2019 of Anaparthi PS and got drafted

Ex.P3 seizure report through PW.3; and that he arrested the Accused and produced him before the Narasapuram Court for judicial custody. In the cross examination, PW.4 deposed that he has not obtained any written permission from Tahsildar to take the

VRO; and that he did not collect any document from the Finance Companies to show the pledge of gold documents. PW.4 denied the suggestion that Accused never confessed about this crime and also other crimes and nothing was seized from his possession; and that Accused falsely implicated in this case.

12.7. When the testimonies of PW.3 and PW.4 coupled with Ex.P3/mediators report and MO.1 are carefully and cumulatively scrutinized, it could be seen that the 10 of 13

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evidence of PW.3 that he is the mediator to Ex.P3/mediators report dated 17.05.2019, only. The evidence of PW.4 is that on 17.05.2019 on credible information, he along with his staff went to Kanakadurgamma temple and arrested the Accused in Crime No.111 of 2019 and he confessed about the commission of offences in other crimes. The evidence of PW.5 is that on 17.05.2019 he received information from PW.4 about apprehension of Accused in Crime No.111 of 2019 of Narasapuram Police Station and the Accused confessed about this crime. It s the further evidence of PW.5 that he filed requisition

before this Court for issuance of PT warrant against Accused and after issuance of PT

warrant, he effected the arrest of Accused and produced him before this Court for judicial remand.

12.8. It is the case of the prosecution that Accused pledged MO.1/two mangalasutrams in the Finance Company. Since the said Company is a Finance

Company, they will not pledge the items without execution of any document by the person who pledged the property. But in this case on hand, investigating agency did not seize any document to show that the Accused pledged the property in the Finance

Company and hence, it cannot be said that prosecution established the nexus between

MO.1 and Accused to say that MO.1 was pledged by the Accused in the said Finance

Company, which creates a doubt in the version of the prosecution with regard to seizure of property from the Accused.

12.9. It is case of the prosecution that they seized MO.1 from the company people. But the investigating agency has not examined the so called Manager of the

Finance Company. Investigating agency ought to have examined the finance people in order to substantiate their case. But they did not do so for the reasons best known to them.

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12.10. There arises a doubt in the version of prosecution about involvement of

Accused in this crime. Under these circumstances, it cannot be said that MO.1 is recovered from the possession of Accused. It is settled legal position that when there is a reasonable doubt in the version of prosecution, the benefit of doubt shall be extended to the Accused.

12.11. In view of the above discussion , this Court is of the considered opinion that the prosecution failed to prove the recovery of MO.1 from the possession of

Accused beyond reasonable doubt and hence, the Accused is entitled for acquittal under benefit of doubt for the offence U/sec.411 IPC. Point is answered accordingly.

13. IN THE RESULT, the Accused is found not guilty for the offences punishable U/secs.380 or 411 IPC and accordingly he is acquitted U/sec 248(1) Cr.P.C.

The Accused is directed to execute a bond for Rs.10,000/- (Rupees Ten thousand only), under Section 437-A Cr.P.C., to appear before the Honourable Appellant Court, if any appeal is preferred. MO.1 i.e. two mangalasutrams which is with the interim custody of

PW.1 as per orders of this Court in Crl.M.P.No.2481/2019 dated 11.09.2019 is hereby made absolute till appeal time is over and thereafter, he can deal with the same in any manner.

{{Typed to my dictation by the Stenographer Grade III, corrected, signed and

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

Sd/- N. Radhika

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

FAC/ II ADDL. JUDL. MAGISTRATE OF I CLASS TANUKU.

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Appendix of Evidence

Witnesses examined

For Prosecution: For Defence:

PW1: Paricherla Rama Venkata Satyanarayana

PW2: Saride Srinivasu ::NONE:: PW3: Kusuma Sasidhar Babu

PW4: R. Mallikharjuna Reddy-SI of Police

PW5: N. Srinivasa Rao-SI of Police.

DOCUMENTS MARKED

For Prosecution: For Defence:

Ex.P1/09.05.2019: Report given by PW.1 to the Police.

Ex.P2/01.06.2019: Property Identification report :NIL: Ex.P3/17.05.2019: Mediator report

Ex.P4/11.05.2019: FIR in Crime No.135/2019

Ex.P5/11.05.2019: Rough sketch

Material objects:

MO.1: Two Mangalasutrams

Sd/- N. Radhika

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

FAC/ II ADDL. JUDL. MAGISTRATE OF I CLASS TANUKU.

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CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C.No.624/2019 ON THE FILE OF THE II

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS, TANUKU.

--------------------------------------------------------------------------------------------------------------

Date of offencePrior to 31.08.2018 Taken on file27-07-2019 Apprehension31-05-2019 Accused Released on bail 15-10-2019 Commencement of Trial04-10-2019 Closure of Trial31-12-2019 Sentence of Order31-12-2019

Explanation for delay: No avoidable delay took place.

Complainant : The State : Sub Inspector of Police Tanuku Rural Police Station. -------------------------------------------------------------------------------------------------------------------- S.No. Name of the Accused Father’s name Age Religion Sex Calling Village -------------------------------------------------------------------------------------------------------------------- Kunda Raju, s/o Aseervadam, 35 years, SC Mala, r/o Purushothapalli village, Nidadavole Mandal. -------------------------------------------------------------------------------------------------------------------- Offence: U/secs.380 or 411 IPC

Cr.No.135/2019

Finding : Not guilty

RESULT: Accused is found not guilty for the offences punishable U/secs.380 or 411 IPC and accordingly he is acquitted U/sec 248(1) Cr.P.C. The Accused is directed to execute a bond for Rs.10,000/- (Rupees Ten thousand only), under Section 437-A Cr.P.C., to appear before the Honourable Appellant Court, if any appeal is preferred. MO.1 i.e. two mangalasutrams which is with the interim custody of PW.1 as per orders of this Court in Crl.M.P.No.2481/2019 dated 11.09.2019 is hereby made absolute till appeal time is over and thereafter, he can deal with the same in any manner.

Sd/- N. Radhika

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

FAC/ II ADDL. JUDL. MAGISTRATE OF I CLASS TANUKU. Copy submitted to The Hon’ble I Addl. District and Sessions Judge, W.G., Eluru through CD.

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IN THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

TANUKU

PRESENT: Smt.N.RADHIKA

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS

FAC/II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS, TANUKU (Tuesday, the 31st day of December 2019)

Calendar Case No.675/2019

Between:

The State- Sub Inspector of Police, Penugonda Police Station. … Complainant

And

Kunda Raju …Accused

This case is coming today for final hearing before me in the presence of A.Ravi Prasad Learned APP for the State and of Sri T. Nehru, learned counsel for Accused and upon hearing the arguments of both sides and perusing the record and having stood over for consideration till this day, the Court delivered the following:

-::J U D G M E N T::-

1. This is a case filed by the Sub Inspector of Police, Penugonda Police

Station, against the Accused in Cr.No.120/2019 for the offences punishable U/secs.380 or 411 of Indian Penal Code, 1860, (Hereinafter refer to as IPC for the sake of brevity).

2. The case of the prosecution in a Nut shell is as follows:

i) The Accused gained entrance into Ramalayam Temple situated in

Penugonda village and committed theft of one sovereign of gold Mangalasutralu from the neck of Seethamma Ammavaru and escaped with the stolen property by placing the rold gold mangalasutralu, as no doubt coming to others; and that LW.1/Petcheti Naga

Raju lodged a report to the police.

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ii) Basing on the report of LW.1, LW.9/M.Raj Kumar-SI of Police registered as case in Cr.No.120/2019 for the offence Punishable U/sec.380 of IPC and investigated into. During the course of investigation, LW.9 visited the scene of offence, observed the same and prepared rough sketch and also examined all the prosecution witnesses and recorded their statements. On 17.05.2019 at 2.00 PM,

LW.8/R.Mallikharjuna Reddy-SI of Police, Narasapuram Town PS arrested the Accused near Kanakadurga Temple in Roya peta of Narasapuram Town in the presence of mediators LW.6/K.Sasidhar Babu and LW.7/K.Subba Rao in Crime No.111 of 2019 and got recorded the confession statement of Accused, in which, the Accused admitted the commission of offence and LW.8/R.Mallikarjuna Reddy recovered the stolen property.

Later LW.9/M.Raj Kumar-SI of Police, produced the Accused before this Court on execution of PT warrant. After completion of investigation, LW.10/P.Nagaraju-SI of

Police filed charge sheet against Accused. Hence the charge.

3. On receipt of the charge sheet, this case was taken on file for the offence punishable U/sec.380 of IPC against the Accused.

4. On appearance of Accused, copies of case documents are furnished to him as contemplated U/sec.207 of Code of Criminal Procedure, 1973 (herein after refer to as Cr.P.C for the sake of brevity).

5. The Accused is examined U/sec.239 of Cr.P.C and he denied the accusation. A charge for the offences U/secs.380 or 411 IPC have been framed against him, read over and explained to him, for which, Accused pleaded not guilty and claimed to be tried.

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6. During the trial, the prosecution examined PW.1 to PW.4 and got exhibited

Ex.P1 to Ex.P4 and MO.1 and MO.2. The evidence of LW.2/Inkollu Suryanarayana

Murthy, LW.3/Petchetti Sathi Babu, LW.4/Balla Madhava Rao, LW.5/Chitturi Srinu and

LW.7/Kothapalli Subba Rao are given up by learned Assistant Public Prosecutor. The evidence of LW.10/P.Nagaraju-SI of Police, was closed, as per the docket order dated 20.12.2019.

7. After closure of prosecution side evidence, the Accused is examined

U/sec.313 Cr.P.C and the incriminating material available in the testimonies of prosecution witnesses is read over and explained to him in Telugu, for which, he denied the same and reported no defence witness on his behalf. Hence the evidence of

Accused is closed.

8. Heard the arguments of learned Assistant Public Prosecutor and learned

Counsel for Accused. Perused the record.

9. Now the points germane for my determination are::-

1. Whether the prosecution has proved and established the guilt of Accused

for the offence punishable U/sec.380 of IPC beyond reasonable doubt?

2. Whether the prosecution has proved and established the guilt of Accused

for the offence punishable U/sec.411 of IPC beyond reasonable doubt?

10. According to the case of prosecution, PW.1 is the defacto complainant,

PW.2 is the Village Revenue Officer and PW.3 & PW.4 are the investigating officers.

This Court has gone through the entire testimonies of PW.1 to PW.4 which are very much available on record and hence the same are not reproduced here to avoid repetition.

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11. Point No.1::-

Whether the prosecution has proved and established the guilt of Accused

for the offence punishable U/sec.380 of IPC beyond reasonable doubt?

11.1. In order to convict the Accused for the offence punishable U/sec.380 of

IPC, the prosecution has to establish that the Accused committed theft of MO.1 and

MO.2 without consent of the concerned authority.

11.2. In order to prove the guilt of the Accused for the offence stated supra, the prosecution has placed its reliance upon the testimonies of PW.1 and PW.4 coupled with Ex.P1/report, Ex.P3/FIR and Ex.P4/Rough sketch and MO.1 and MO.2.

11.3. It is the evidence of PW.1, who is Association elder of Lord Sri rama

Temple, that they conduct celebrations for every year in the month of May; and that on 10.05.2019, in order to conduct yearly celebrations, they took the ornaments of goddess

Sithamma to the gold shop for the purpose of polishing and goldsmith taken the gold ornaments and said that the mangalasutrams are roldgold; and that after discussing with the other association members, he gave Ex.P1/report to the police complaining that some unknown offenders committed theft of original ornaments and placed the roldgold ornaments. It is the further evidence of PW.1 that after one month Penugonda police informed them that the stolen mangalasutrams i.e. MO.1 and MO.2 were recovered. In the cross examination, PW.1 deposed that he does not know when MO.1 and MO.2 were committed theft. PW.1 denied the suggestion that at the instance of police, he gave Ex.P1 report.

11.4. It is the evidence of PW.4 that on 11.05.2019 at 1.10 PM, PW.1 came to

Police Station and presented Ex.P1/report and basing on it, he registered as case in 4 of 12

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Crime No.120/2019 and issued Ex.P3/FIR. It is the further evidence of PW.4 that he visited the scene of offence i.e. Santha market Ramalayam situated in Penugonda village, observed the same and prepared Ex.P4/rough sketch and also examined PW.1,

LW.2/I.Suryanarayana Murthy, LW.3/P.Sathi Babu, LW.4/B.Madava Rao and

LW.5/Chituri Srinu and recorded their statements. It is the further evidence of PW.4 that on 17.05.2019 he received information from PW.3 that Accused confessed about this offence in the mediators report conducted in Crime No.111 of 2019 of Narasapur Police

Station; and that he obtained mediators report along with seized property i.e. MO.1 and

MO.2 from PW.3; and that on 24.06.2019 he produced the Accused before this Court for judicial remand on execution of PT warrant. It is the further evidence of PW.4 that he handed over the CD file to LW.10/P.Naga Raju and he can identify his signature and on completion of investigation, LW.10 filed charge sheet. In the cross examination, PW.4 deposed that generally, nobody will place the duplicate ornaments by committing theft of gold ornaments. PW.4 admitted that the scene of offence is busy locality. PW.4 denied the suggestion that he has not examined the witnesses; and that Accused never confessed about this offence and nothing was seized from his possession; and that

Accused is no way concerned with this case and he was falsely implicated basing on the mediators report of Narasapuram Police Station; and that there is no possibility for committing theft in the Ramalayam since there are very height gates.

11.5. The learned Assistant Public Prosecutor argued that from the testimonies of PW.1 and PW.4 coupled with Ex.P1, Ex.P3 and Ex.P4 and MO.1 and MO.2, it clinchingly shows that the Accused made an entry into Ramalayam Temple and committed theft of MO.1 and MO.2 and hence, the Accused is liable for conviction for the offence punishable U/sec.380 IPC.

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11.6. The learned counsel for the Accused vehemently argued that the none of the prosecution witnesses deposed that the Accused made an entry into Ramalayam

Temple and committed theft of MO.1 and MO.2 and there is no direct evidence in order to convict the Accused for the above said offence and prayed the Court to acquit the

Accused.

11.7. It is the contention of the learned counsel for the Accused that from the cross examination of PW.1 that no offence was occurred in the Temple and no property was committed theft in this case on hand. PW.1 is the Association elder and there is no dispute to that effect. Accused did not pose the said suggestions to PW.4. Being

Association elder, PW.1 has no necessity to give Ex.P1 report as a fashion without any occurrence of theft. Further, PW.4 being Investigating Officer does not have any fashion to register FIR without making out any cognizable offence. When the testimonies of

PW.1 and PW.4 are cumulatively and carefully scrutinized, it could be seen that the evidence of PW.1 and PW.4 are very clear that MO.1 and MO.2 were committed theft from Ramalayam Temple.

11.8. It is not the case of PW.1 and PW.4 that the Accused committed theft of

MO.1 and MO.2. Even Ex.P1 report reveals that some unknown offenders committed theft of MO.1 and MO.2. The testimony of PW.4 coupled with Ex.P3 FIR also reveals the same fact. It is not the case of the prosecution that the Accused was caught hold red-handedly while committing theft of MO.1 and MO.2 from Ramalayam Temple. There is no direct evidence in-order to say that the Accused committed theft of MO.1 and

MO.2 from Ramalayam Temple. Without having any direct evidence, it cannot be said that the Accused made an entry into Ramalayam Temple and committed theft of MO.1 and MO.2. Under these circumstances, this Court is of the considered opinion that it is unsafe to convict the Accused for the offence punishable U/sec.380 IPC. Further, it is 6 of 12

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not case of the Accused that MO.1 and MO.2 belong to him. Thus, this Court is of the considered opinion that MO.1 and MO.2 are stolen property. This point answered accordingly.

12. Point No.2:

Whether the prosecution has proved and established the guilt of Accused

for the offence punishable U/sec.411 of IPC beyond reasonable doubt?

12.1. In order to convict the Accused for the offence U/sec.411 of IPC, the prosecution has to establish that the Accused was in possession of MO.1 and MO.2, soon after committing theft.

12.2. In order to prove the guilt of the Accused for the above said offence, the prosecution has placed its reliance upon the testimonies of PW.2 and PW.3 coupled with Ex.P2 mediators report and MO.1 and MO.2.

12.3. The learned Assistant Public prosecutor would contend that by examining

PW.2 and PW.3 and by exhibiting Ex.P2/mediators report and MO.1 and MO.2, the prosecution proved that MO.1 and MO.2 were recovered from the possession of

Accused and hence, the Accused is liable for conviction for the offence U/sec.411 IPC.

12.4. On the other hand the learned counsel for the Accused vehemently contended that there is no corroboration between the testimonies of PW.2 and PW.3 and the presence of PW.2 and PW.3 at the time of Ex.P2 mediators report is doubtful.

The learned counsel further contended that Ex.P2 does not contain recovery pertaining to this case and hence recovery is not proved and prayed to acquit the Accused under benefit of doubt.

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12.5. It is the evidence of PW.2 that on 17.05.2019 at 2.00 PM, he received phone call from SI of Police, Narasapuram Town PS and requested him to come to

Kanakadurgamma temple situated in Raypeta, then he along with LW.7/K.Subba Rao, their VRA went there and found the Accused on a motorbike; and that they enquired the

Accused, but he did not give proper answer; and that SI of Police enquired the Accused, for which, he confessed that he used to commit theft in the temples and also confessed that he committed theft of two mangalasutrams in Ramalayam temple, Velpuru in the month of December 2018 and pledged the same in a finance company; and that the

Accused also confessed about the committing of thefts in other crimes. It is the further evidence of PW.2 that SI of Police taken the Accused to the police station and from there, they went to Kosamattam Finance Company situated in Nidadavole and enquired the Manager and he had shown the gold two mangalasutras which were pledged and

Manager also shown the other gold items pertaining to other crimes. It is the further evidence of PW.2 that SI of Police seized all the gold items and he drafted the confession statement of the Accused in Rayapeta and also drafted Ex.P2 seizure report in Kosapatnam Finance Company of Nidadavole; and that he along with LW.7/K.Subba

Rao singed on the report; and that he can identified the Accused and SI of Police affixed punch slips on the seizure property and Police took him to custody. In the cross examination, PW.2 denied the suggestion that he never seen the Accused in Rayapeta on 17.05.2019 and Accused never confessed anything; and that nothing was seized from the possession of Accused in their presence; and that Accused never committed any theft and never pledge the gold items in Kosamattam Finance Company,

Nidadavole; and that Accused was never apprehended in their presence; and that he never seen the Accused and he has shown him since he is in the dock. PW.2 deposed that police did not seize the documents pertaining to the alleged pledge.

12.6. It is the evidence of PW.3 that on 17.05.2019 on credible information, he along with his Staff, PW.2 and LW.7/K.Subba Rao proceeded to Kanakadurgamma 8 of 12

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temple situated in Rayapet and conducted vehicle checking; and that at that time, they found the Accused coming on a bike Honda Neuo motors bearing No.AP37 BS 4765; and that on suspicion, he stopped the vehicle and enquired the Accused, but he did not give proper answer; and that he again enquired the Accused, for which, he confessed that he used to commit theft in the temples and also committed theft of two mangalasutras in Ramalayam temple of Velpur in December, 2018 and pledged the same in a Finance Company; and that he also confessed about committing of thefts in another crimes ie., Cr.No.111/2019 of Narasapuram Town PS for the offence U/sec.380

IPC. It is the further evidence of PW.3 that he has taken the Accused to Police Station and from there, they went to Kusamattam Finance Company situated in Nidadavole and enquired, the Manager and he has shown the two gold mangalasutras which were pledged and also other gold items pertaining to Cr.No.111/2019 of their PS and also other crimes; and that later he seized all the gold items in eight crimes of Cr.No.120/19 of Penugonda PS, Cr.No.135/18 of Tanuku Rural PS, etc., he got drafted the confessional statement of Accused in Rayapeta and also drafted the seizure report in

Kosamattam Finance company of Nidadavaole through PW.2 and seized the gold items. It is the further evidence of PW.3 that on the same day at 6.00 PM, they also proceeded to Manapuram Finance Limited of Nidadavole basing on the confession of

Accused; and that he enquired the Manager of Mannapuram Finance and the Manager shown the mangalasutrams and gold chain which were pledged and he seized the same as which were pertaining to Cr.No.113/2019 of Anaparthi PS and got drafted

Ex.P2 seizure report through PW.2; and that he arrested the Accused and produced him before the Narasapuram Court for judicial custody. In the cross examination, PW.3 deposed that he has not obtained any written permission from Tahsildar to take the

VRO; and that he did not collect any document from the Finance Companies to show the pledge of gold documents. PW.3 denied the suggestion that Accused never confessed about this crime and also other crimes and nothing was seized from his possession; and that Accused falsely implicated in this case.

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12.7. When the testimonies of PW.2 and PW.3 coupled with Ex.P2/mediators report and MO.1 and MO.2 are carefully and cumulatively scrutinized, it could be seen that the evidence of PW.2 is that he is the mediator to Ex.P2/mediators report dated 17.05.2019, only. The evidence of PW.3 is that on 17.05.2019 on credible information, he along with his staff went to Kanakadurgamma temple and arrested the Accused in

Crime No.111 of 2019 and he confessed about the commission of offences in other crimes. The evidence of PW.4 is that on 17.05.2019 he received information from PW.3 about apprehension of Accused in Crime No.111 of 2019 of Narasapuram Police

Station and the Accused confessed about this crime. It is the further evidence of PW.4 that he filed requisition before this Court for issuance of PT warrant against Accused and after issuance of PT warrant, he effected the arrest of Accused and produced him

before this Court for judicial remand.

12.8. It is the case of the prosecution that Accused pledged MO.1 and MO.2 two mangalasutrams in the Finance Company. Since the said Company is a Finance

Company, they will not pledge the items without execution of any document by the person who pledged the property. But in this case on hand, investigating agency did not seize any document to show that the Accused pledged the property in the Finance

Company and hence, it cannot be said that prosecution established the nexus between

MO.1 and MO.2 and Accused to say that MO.1 and MO.2 were pledged by the Accused in the said Finance Company and MO.1 and MO.2 were in the constructive possession of accused, which creates a doubt in the version of the prosecution with regard to seizure of property from the Accused.

12.9. It is case of the prosecution that they seized MO.1 and MO.2 from the company people. But the investigating agency has not examined the so called Manager of the Finance Company. Investigating agency ought to have examined the finance 10 of 12

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people in order to substantiate their case. But they did not do so for the reasons best known to them.

12.10. There arises a doubt in the version of prosecution about involvement of

Accused in this crime. Under these circumstances, it cannot be said that MO.1 and

MO.2 are recovered from the possession of Accused. It is settled legal position that when there is a reasonable doubt in the version of prosecution, the benefit of doubt shall be extended to the Accused.

12.11. In view of the above discussion, this Court is of the considered opinion that the prosecution failed to prove the recovery of MO.1 and MO.2 from the possession of Accused beyond reasonable doubt and hence, the Accused is entitled for acquittal under benefit of doubt for the offence U/sec.411 IPC. Point is answered accordingly.

13. IN THE RESULT, the Accused is found not guilty for the offences punishable U/secs.380 or 411 IPC and accordingly he is acquitted U/sec 248(1) Cr.P.C.

The Accused is directed to execute a bond for Rs.10,000/- (Rupees Ten thousand only), under Section 437-A Cr.P.C., to appear before the Honourable Appellant Court, if any appeal is preferred. MO.1 and MO.2 i.e. Two Mangalasutrams, which are in the custody of Police, are ordered to be returned to PW.1, on proper identification and acknowledgment, after appeal time is over and SHO is directed to file compliance report, before the Court.

{{Typed to my dictation by the Stenographer Grade III, corrected, signed and

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

Sd/- N. Radhika

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

FAC/ II ADDL. JUDL. MAGISTRATE OF I CLASS TANUKU.

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Appendix of Evidence

Witnesses examined

For Prosecution: For Defence:

PW1: Petchetti Naga Raju

PW2: Kusuma Sasidhar Babu

PW3: R. Mallikharjuna Reddy-SI of ::NONE:: Police

PW4: M.Raj Kumar-SI of Police.

DOCUMENTS MARKED

For Prosecution: For Defence:

Ex.P1/11.05.2019: Report given by PW.1 to the Police.

Ex.P2/17.05.2019: Mediator report :NIL: Ex.P4/11.05.2019: FIR in Crime No.120/2019

Ex.P5/11.05.2019: Rough sketch

Material objects:

MO.1 & MO.2: Two Mangalasutrams

Sd/- N. Radhika

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

FAC/ II ADDL. JUDL. MAGISTRATE OF I CLASS TANUKU.

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CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C.No.675/2019 ON THE FILE OF THE II

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS, TANUKU.

--------------------------------------------------------------------------------------------------------------

Date of offencePrior to 10.05.2019 Taken on file31-07-2019 Apprehension25-06-2019 Accused Released on bail 15-10-2019 Commencement of Trial10-10-2019 Closure of Trial31-12-2019 Sentence of Order31-12-2019

Explanation for delay: No avoidable delay took place.

Complainant : The State : Sub Inspector of Police Penugonda Police Station. -------------------------------------------------------------------------------------------------------------------- S.No. Name of the Accused Father’s name Age Religion Sex Calling Village -------------------------------------------------------------------------------------------------------------------- Kunda Raju, s/o Aseervadam, 35 years, SC Mala, r/o Purushothapalli village, Nidadavole Mandal. -------------------------------------------------------------------------------------------------------------------- Offence: U/secs.380 or 411 IPC

Cr.No.120/2019

Finding : Not Guilty

RESULT: Accused is found not guilty for the offences punishable U/secs.380 or 411 IPC and accordingly he is acquitted U/sec 248(1) Cr.P.C. The Accused is directed to execute a bond for Rs.10,000/- (Rupees Ten thousand only), under Section 437-A Cr.P.C., to appear before the Honourable Appellant Court, if any appeal is preferred. MO.1 and MO.2 i.e. Two Mangalasutrams, which are in the custody of Police, are ordered to be returned to PW.1, on proper identification and acknowledgment, after appeal time is over and SHO is directed to file compliance report, before the Court.

Sd/- N. Radhika

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

FAC/ II ADDL. JUDL. MAGISTRATE OF I CLASS TANUKU. Copy submitted to The Hon’ble I Addl. District and Sessions Judge, W.G., Eluru through CD.

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O.S.No.49/2011 Dt.18-04-2022

PJCJ/TNK

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: TANUKU.

Present: Smt.N.RADHIKA,

Principal Junior Civil Judge, Tanuku.

(Monday, this the 18th day of April, 2022)

Original Suit No.49/2011 Between:

1. Badugu Surya Rao

2. Badugu Nagamani … Plaintiffs

And

1. Yalla Srinu

2. Pulidindi Krishna

3. Vippatatla Nandiyya

4. Kalabathula Sankaram Babu

5. Polumati Chinna

6. Polumati Surya Rao (Company)

7. Kondepadu Yesupadam

8. Yadla Solman ...Defendants

This suit is coming on 04.04.2022 for final hearing before me in the presence of Sri K. A. Padmanabham, learned Counsel for the Plaintiff and of Sri G. Bhaskara Murthy, learned counsel for Defendants, upon hearing arguments, upon considering the material available on record and the matter having been stood over for consideration till this day, thIs Court delivered the following:

-:: JUDGMENT ::-

1. This is a suit filed by the Plaintiffs against the Defendants for declaration that the Plaintiffs are the absolute owners of the plaint schedule

ABCD plan marked property and for consequential permanent injunction restraining the Defendants, their men, followers and agents from ever interfering with the peaceful possession and enjoyment of the Plaintiffs over the plaint schedule property and for costs of the suit.

2.THE CASE OF THE PLAINTIFFS IS AS FOLLOWS:

2.1The Plaint schedule property is a house property admeasuring an extent of 72 sq.yds. of site and the Plaintiffs and their predecessors in title have been in possession and enjoyment of the same for the last 77 years.

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PJCJ/TNK 2.2The 1st Plaintiff is the husband of 2nd Plaintiff. Originally, the plaint schedule property is an extent of 96 sq.yds. Along with a thatched house and owned by the maternal grandmother of the 1st Plaintiff, by name, Uppuluri Adi,

W/o. Subbayya. She purchased the said property under a registered sale deed

dated 10-01-1934, however, a mistake was crept in the said document as to the

description of the schedule relating to boundary measurements. The plaint schedule property is rectangular in shape and the measurements of North and

South were shown as 8 yards and the measurements of East and West were shown as 12 yards in the schedule under the said document and due to oversight, the measurement of North and South were mis-spelt as East and West, so also, the measurements of East and West were mis-spelt as North and South.

There is no dispute with regard to the extent and identity of the schedule property under the said document dated 10-01-1934.

2.3The Plaintiffs further submitted that the maternal grandmother of 1st

Plaintiff died intestate and her property devolved upon mother of the 1st Plaintiff by name Badugu Bodemma being sole daughter of deceased Uppuluri Adi. After death of Badugu Bodemma in the year 1993, the schedule property devolved upon her only son i.e. 1st Plaintiff and since then the 1st Plaintiff has been in possession and enjoyment of the ABCD marked property of plaint plan. Since the lane on the North is very less in width and not accessible for free passage, the 1st Plaintiff gave his site to a width of 2 yards all along his Northern site boundary along with his Western side owners about 7 years ago as the Panchayat authorities proposed to lay a pucca road leading from Eastern side R & B Road.

Thus, the extent of plaint schedule property is now admeasures 72 sq.yds. with 12 yards measurement on the North and South and 6 yards measurement on the

East and West and the Plaintiffs have been in peaceful possession and enjoyment of the ABCD marked property of the plaint plan since 1993 i.e. after the death of mother of the 1st Plaintiff.

2.4The old thatched house situated in the plaint ABCD plan became ruined. The State Government sanctioned house in the name of the 2nd Plaintiff

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PJCJ/TNK under Indiramma Scheme in the month of August 2010 and the Plaintiffs laid foundation with cement pillars to a height of 9 feet during the last week of

August 2010 since the same is a condition precedent for sanction of housing under Indiramma Scheme. On 29-08-2010 at 10 p.m. all the Defendants along with 25 others, who are residents of Velagadurru, styling themselves as members of their caste association, interfered with construction activities of the Plaintiffs and demolished the pillars illegally, highhandedly without any manner of right alleging as if the construction is made out in their site on the East in view of their political disputes with the Plaintiffs and caused loss to a tune of

Rs.30,000/-. In fact, there is road margin to a width of 20 feet together with a drainage line therein in between the plaint schedule property and the Eastern side Rajaveedhi as shown in the plaint plan and the Plaintiffs and their predecessors in title have been using the same for their ingress and egress. The

Eastern side Rajaveedhi had been in existence since 1934 and no one can claim title or interest over the same including the Defendants. The Defendants are disputing about the Eastern side extent of Plaintiffs without any manner of right whatsoever in view of their political rivalry with the Plaintiffs.

2.5The Plaintiffs gave a report before the SHO, Undrajavaram PS on 30- 08-2010, but the police for the reasons best known to them, did not take any action against the Defendants. On 28-12-2010, the Plaintiffs submitted a complaint to the Minister, Social Welfare, in turn, he forwarded the same to the

District Collector, West Godavari, Eluru for enquiry and necessary action. In the meanwhile, the Tahsildar, Undrajavaram after due enquiry issued proceedings in favour of 2nd Plaintiff on 06-01-2011 thereby continuing and ratifying the possession and enjoyment of the Plaintiffs over the plaint schedule property, in which, Indiramma house allowed to be constructed. The District Collector also forwarded the complaint of the Plaintiffs to the Tahsildar, Undrajavaram for enquiry but the Defendants have been proclaiming in the village that they would not allow the Plaintiffs to construct Indiramma House in the plaint schedule property. The Plaintiffs are apprehending that the Defendants would continue

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O.S.No.49/2011 Dt.18-04-2022

PJCJ/TNK their illegal acts and prevent the Plaintiffs to proceed with the construction of

Indiramma House in the plaint schedule property. Hence, the suit.

3.After registering the suit, summons were issued to the Defendants and the Defendants made their appearance through the counsel and the 1st

Defendant filed written statement and Defendant Nos.2 to 8 filed memo adopting the written statement filed by the 1st Defendant.

4. THE CASE OF THE DEFENDANTS IS AS FOLLOWS:-

The Defendants are not opposing the construction of house by the

Plaintiffs in respect of the site owned by them within the boundaries mentioned in the registered Sale Deed dated 10-01-1934. Under the guise of mistake said to be crept in the Registered Sale Deed dated 10-01-1934, the Plaintiffs cannot encroach the road margin and Panchayat site. The Gram Panchayat, Velagadurru passed resolution on 16-11-2009 for construction of Community Building near the site of Plaintiffs and the Plaintiffs opposed the same and filed this suit. The

Plaintiffs are also making attempts to encroach the Panchayat site at where the

Community Building is to be constructed. Since the Defendants and villagers of

Velagadurru opposed the attempts of encroachment of Panchayat site by the

Plaintiffs, the Plaintiffs filed this suit to harass the Defendants and the Defendants never interfered with the Plaintiffs’ property in any manner and never caused any damage to the property of the Plaintiffs and prayed to dismiss the suit with costs.

5.I S S U E S:-

Basing on the respective pleadings of both parties, the following issues were framed by my learned predecessor on 19-07-2011.

1. Whether the Plaintiffs are in lawful possession and enjoyment of the plaint schedule property?

2. Whether the Plaintiffs are entitled for suit claim?

3. to what relief?

6.TRIAL PROCEEDINGS:-

During the course of trial, the 1st Plaintiff himself examined as

PW-1 and got marked Exs.A-1 to A-8. On behalf of the Defendants, no oral or documentary evidence is adduced. During the Trial, the learned counsel for

Defendants filed a memo on 07.01.2021 stating that the Defendants have been

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PJCJ/TNK waiving their defence and they do not want the enquiry on their behalf as the matter was compromised between them.

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

8.ISSUE NOS.1 & 2

Whether the Plaintiffs are in lawful possession and enjoyment of the plaint schedule property? & Whether the Plaintiffs are entitled for the suit claim.?

8.1This Court is inclined to answer both the issues together since they are interlinked and in order to avoid repetition and appreciation of evidence.

8.2It is the contention of the learned counsel for the Plaintiffs that the

Defendants waived their defence and did not choose to cross-examine PW-1 and adduce their evidence and the testimony of PW-1 coupled with Exs.A-1 to A-8 are unchallenged and hence, the Plaintiffs are entitled for the suit claim ie., declaration that the Plaintiffs are absolute owners of ABCD marked property of plaint plan, so also, permanent injunction restraining the Defendants and their men from ever interfering with the peaceful possession and enjoyment of the suit schedule property.

8.3Now, “let the Court to examine whether the Plaintiffs established their Title & lawful possession over the ABCD marked property of the plaint plan.?” 8.4The main relief sought for by the Plaintiffs is declaration that they are the absolute owners of the ABCD marked property of the plaint plan and the consequential relief of permanent injunction. Threfore, the burden lies on the

Plaintiffs to prove their Title over the ABCD marked property of the plaint plan.

8.5The Honourable High Court of AP in the case of M.Venkateswara

Rao and another Vs. K.Koteswara Rao and another1, while dealing with the

First Appeal held that:- 12021 (4) ALT 475

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O.S.No.49/2011 Dt.18-04-2022

PJCJ/TNK “in a Title suit, the burden always on the Plaintiffs to establish their claim. They cannot in any manner rely on the latches or weakness in the case set by the Defendants.” 8.6It is true that the Defendants waived their defence by filing Memo dated.07.01.2022 and also did not choose to cross-examine PW.1 but that itself is not a ground for the Plaintiffs for entitlement of decree as prayed for. In a suit for declaration, the Plaintiff has to stand on the strength of his own case but he cannot rely upon the weakness or otherwise of the case of the Defendant.

8.7 The basis for the case of the Plaintiffs is Ex.A1/Original Sale Deed.

The boundaries as per the plaint schedule are as follows:-

East:- R & B Road 6 yards together with road margin of width about 20 feet. West :-House of Badugu Mohana Kali 6 yards. North :-Panchayat Road 12 yards. South :-House of Pulidindi Govayya 12 yards.

8.8At para No.6 of the plaint, it is the case of the Plaintiff that a mistake was crept in Ex.A-1/Sale deed as to the description of the schedule relating to boundary measurements and the measurements of North and South were shown as 8 yards and the measurements of East and West are shown as 12 yards in the schedule and the said document, due to mistake or oversight the measurements of North and South were mis-splet as East and West, so also, the measurements of East and West as North and South. It is the further case of the

Plaintiffs that the plaint schedule is rectangular in shape and there is no dispute with regard to the extent and so also the identity of the schedule property under

Ex.A-1/Sale Deed.

8.9 As per the own case of the Plaintiffs, there is a mistake in Ex.A-1 with regard to measurements of the boundaries and description of the property.

Admittedly, when there is a mistake in the document, it is for the Plaintiffs to get rectify the mistake as per the manner provided under law and they should have taken steps to seek rectification of the mistake in accordance with the procedure established under law by taking appropriate steps but the Plaintiffs failed to take steps in that regard. Even the case of Plaintiffs is silent when they came to know about the mistake in Ex.A-1 and what are the steps taken by the

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O.S.No.49/2011 Dt.18-04-2022

PJCJ/TNK grandmother of the 1st Plaintiff and mother of the 2nd Plaintiff. The Plaintiffs failed to take steps for rectification of the schedule in Ex.A-1 by proceeding against the proper persons and by initiating appropriate measures as available to them but they did not do so to enable the Plaintiffs to seek declaration in respect of the description of the suit schedule property. When there is a mistake in the face of Ex.A-1, which is the suit document and on which the Plaintiffs have been harping upon their case and without taking appropriate steps to get the mistake be rectified against proper persons in accordance with the procedure established by Law, this Court is of the considered view that the Plaintiffs are not entitled for the relief of declaration as absolute owners of the ABCD marked property of the plaint schedule property which is different from the description mentioned in

Ex.A-1. In view of the above, this Court is of the considered opinion that the

Plaintiffs failed to establish their Title over the ABCD marked property of the plaint plan.

8.10 It is true that the Plaintiffs got exhibited Ex.A-2 and A-3, which are the tax receipts and certificate issued by the Velagadarru Village Secretary but

Ex.A-2 and A-3 are silent with regard to the boundaries of the schedule property and they are not reflecting that the Plaintiffs are in possession and enjoyment of the description of the suit schedule property. Thus, Ex.A-2 and A-3 are no way helpful to the case of the Plaintiffs to prove their title, so also, their possession and enjoyment of the description of the suit schedule property.

8.11The Plaintiffs got appointed advocate commissioner as per orders in

IA.No.177/2011 dated.14.6.2011 to note down the physical features of the plaint

schedule property and advocate commissioner filed Report by noting down the physical features of the plaint schdedule property. But the boundaries of the

ABCD marked property of the plaint plan are not reflected in the Advocate commissioner report and the Advocate Commissioner does not throw light upon the case of Plaintiffs to substantiate their case with regard to the description of the plaint schedule property.

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PJCJ/TNK 8.12It is the contention of learned counsel for Plaintiffs that the

Defendants have been interfering with the possession and enjoyment of the

Plaintiffs over the Plaint schedule property, as such the Plaintiffs gave report to the police under Ex.A4 basing on which FIR was registered in Crime No.32/2011 in Undrajavaram PS under Ex.A6 and Ex.A7/charge sheet was laid against the

Defendants and others for the offence under sections.143, 448, 427 r/w 149 IPC and prayed the Court to grant consequential permanent injunction restraining the

Defendants and their men from interefering with the peaceful possession and enjoyment of the Plaintiffs over the plaint schedule property.

8.13It is true that Ex.A5 to A7 discloses that basing on the report given by the 1st Plaitniff/PW1, the Undrajavaram Police registered the case in crime in crime no.32/2011 Under EX.A6 and Ex.A7/Charge sheet was laid against the

Defendants and the other persons. But Ex.A4 to A7 do not reflect that the

Plaintiffs have been possession and enjoyment of the description mentioned in the suit schedule property and they do not clinchingly establish the Right and Title so also possession of the Plaintiffs over the description of property mentioned in the suit schedule.

8.14In view of the above discussion, this Court is of the considered view that the Plaintiffs failed to establish their Title over the descripiton of suit schedule property and also failed to prove that they are in lawful possession and enjoyment of the same. Both the Issues are answered against the Plaintiffs accordingly.

9.ISSUE NO.3

To what relief?

In view of the discussion and findings made by this Court on Issue nos.1 and 2, this Court is of the considered view that the Plaintiffs are not entitled for any of the reliefs claim and the suit of the Plaintiff is liable to be dismissed, however without costs considering the circumstances. Accordingly, the Issue is answered against the Plaintiffs.

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10.IN THE RESULT, the Suit is dismissed without costs.

{{Typed to my dictation to the Stenographer Gr.II, corrected, signed and

pronounced by me in Open Court, this the 18th day of April, 2022}}

SD/- N.RADHIKA,

PRINCIPAL JUNIOR CIVIL JUDGE,

TANUKU

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFSFOR DEFENDANTS

PW-1:B. Surya Rao-None

DOCUMENTS MARKED

FOR PLAINTIFFSFOR DEFENDANTS

S.No.Description of the Document

Ex.A1Original Sale Deed dated 10-01-1934.

Ex.A2House Tax Receipt.

Ex.A3Certificate issued by the Secretary, Gram Panchayat, Velagadurru.

Ex.A4Copy of complaint dated 30-08-2010.

Ex.A5Endorsement dated 26-02-2011. :: NIL ::

Ex.A6Certified copy of FIR.

Ex.A-7Certified copy of charge sheet in Cr.No.32/2011 of Undrajavaram PS.

Ex.A8Photographs (two in number) along with negaties.

ID/-N.R. PJCJ TNK

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PJCJ/TNK

Plaint presented on: 09­02­2011 Plaint filed on :09­02­2011

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE, TANUKU.

Present: Smt. N. RADHIKA

Principal Junior Civil Judge, Tanuku

(Monday, this the 18th day of April, 2022)

O.S.No.49/2011

Between:

1. Badugu Surya Rao, S/o. Saheb, Hindu, male, aged 55 years, coolie, r/o. Velagadurru, Undrajavaram mandal, W.G.Dt.

2. Badugu Nagamani, W/o. Surya Rao, Hindu, female, aged 50 years, r/o. Velagadurru, Undrajavaram mandal, W.G.Dt. … Plaintiffs

And

1. Yalla Srinu, S/o. Surya Rao, Hindu, male, aged 30 years, r/o. Velagadurru, Undrajavaram Mandal, W.G.Dt.

2. Pulidindi Krishna, S/o. Nageswara Rao, Hindu, male, aged 25 years, r/o. Velagadurru, Undrajavaram Mandal, W.G.Dt.

3. Vippatatla Nandiyya, S/o. Bheemanna, Hindu, male, aged 50 years, r/o. Velagadurru, Undrajavaram Mandal, W.G.Dt.

4. Kalabathula Sankaram Babu, S/o. Sriramulu, Hindu, male, aged 28 years, r/o. Velagadurru, Undrajavaram Mandal, W.G.Dt.

5. Polumati Chinna, S/o. Premanandam, Hindu, male, aged 30 years, r/o. Velagadurru, Undrajavaram Mandal, W.G.Dt.

6. Polumati Surya Rao (Company), S/o. Surayya, Hindu, male, aged 60 years, r/o. Velagadurru, Undrajavaram Mandal, W.G.Dt.

7. Kondepadu Yesupadam, S/o. Saheb, Hindu, male, aged 55 years, r/o. Velagadurru, Undrajavaram Mandal, W.G.Dt.

8. Yadla Solman, S/o. Rama Rao, Hindu, male, aged 40 years, r/o. Velagadurru, Undrajavaram Mandal, W.G.Dt. … Defendants Suit for for declaration that the Plaintiffs are the absolute owners of the plaint schedule ABCD plan marked property and for consequential permanent injunction restraining the Defendants, their men, followers and agents from ever interfering with the peaceful possession and enjoyment of the Plaintiffs over the plaint schedule property and for costs of the suit.

2. Value of the suit:­

The relief of declaration & consequential permanent injunction is valued by the

Plaintiffs as under:

Value of 72 sq.yds of site at the rate of Rs.500/­ per sq.yds. is Rs.36,000­00.

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On which a Court fee of Rs.1266/­ is paid under Section 24(B) of APCF and SV

Act, 1956.

3. The cause of action for the suit arose in the month of August 2010 when the

Plaintiffs were granted Indiramma House in the plaint schedule ABCD plan marked property and when the Defendants without having any right dismantled the pillars of the construction by raising dispute and on 06­01­2011 when the MRO, Undrajavaram issued possession ratification certificate to the 2nd Plaintiff in resepct of the plaint schedule property and on all the days when the Defendants proclaiming that they would stall the construciton of Indiramma House by the Plaintiffs and at Velagadurru village of

Undrajavaram Mandal, where the plaint schedule property situated within the jurisdiction of this Honourable Court.

4. This suit is coming on this day for final hearing before me in the presence

Sri K. A. Padmanabham, learned Counsel for the PlaintiffS and of Sri G. Bhaskara

Murthy, learned counsel for Defendants and having stood over for consideration, till this day, this Court DOTH ORDER AND DECREE DOTH ORDER AND DECREE as follows:

i.that the suit be and the same is hereby dismissed; and ii.that each party shall bear their own costs.

Plaint schedule is hereto attached.

Given under my hand and the seal of this Court, this the 18th day of April, 2022. SD/­ P.BABU,

I ADDITIONAL JUNIOR CIVIL JUDGE, 

FAC. PRINCIPAL JUNIOR CIVIL JUDGE,

TANUKU

MEMORANDUM OF COSTS

FOR PLAINTIFFSFOR DEFENDANTS

1.Stamp on Vakalat2­00

2.Stamps on Plaint1266­00 3Stamps on Process­­No Cost memo filed on either side 4Advocate Fee (Sr)­­

5.Type charges­­ Total Instt. Costs taxed 1268­00

 ID/­ P.B. 

I AJCJ

FAC.PJCJ

TNK

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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: TANUKU. 

Present: Smt.N.Radhika

Principal Junior Civil Judge, Tanuku.

(Wednesday, this the 13th day of April, 2022)

Original Suit No.313/2016

Between:

Kodamanchili Musalayya … Plaintiff

And

Kandelli Krishna ...Defendant 

This suit is coming on 07.04.2022 for final hearing before me in the presence of Sri.G. Veerreddy, Learned Counsel for the Plaintiff and the arguments of Defendant as are treated as heard, upon hearing arguments, upon considering the material available on record and the matter having been stood over for consideration till this day, this Court delivered the following:

­:: JUDGMENT ::­

1. This is a suit filed by the Plaintiff against the Defendant praying to grant permanent injunction restraining the Defendant and his men from ever interfering with the peaceful possession and enjoyment of the Plaintiff over the Plaint Schedule Property and for costs of the suit.

2.THE CASE OF THE PLAINTIFF IS AS FOLLOWS:

2.1The Plaintiff is resident of Juttiga village and the Defendant is also residing opposite to the plaint schedule property. The plaint schedule property is purchased by the

Plaintiff on 02­05­2016 under Registered Sale Deed from Gudimetla Naga Venkata Ratna

Reddy for an amount of Rs.4,00,000/­ and since the date of purchase, the Plaintiff has been in possession and enjoyment of the schedule property. The plaint schedule property is a vacant site. The executants obtained settlement deed for part of the schedule property on 02­05­1995 and obtained relinquishment deed on 26­09­1995 for the remaining property and became absolute owners of the plaint schedule property and in possession and enjoyment of the same till the date of sale to the Plaintiff and delivered possession of the property to the Plaintiff on 02­05­2016.

2.2The Defendant, who is residing opposite to the plaint schedule property, also intended to purchase the schedule property for lesser price but failed to purchase the same and there by bore grudge against the Plaintiff. On 19­08­2016 the Defendant intended to occupy

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PJCJ/TNK part of the plaint schedule property by constructing a shed and with a great difficulty, the

Plaintiff resisted the highhanded act of the Defendant. The Defendant is proclaiming in the village that he will occupy the plaint schedule property. The Plaintiff is working as a driver in a Pesticide Company and goes on vehicle to Krishna and East Godavari Districts and it is not possible to resist the highhanded acts of the Defendant. Hence, the suit.

3.After registering the suit, summons were issued to the Defendant and the

Defendant made appearance through the counsel and filed written statement denying the material allegations of the Plaint.

4.THE CASE OF THE DEFENDANT IS AS FOLLOWS:

4.1The plaint schedule property is not a vacant site and the door number shown is not correct. The plaint schedule property contains two reck sheds, one thatched house and one thatched hut which are belonging to one Kandelli Suresh, Kandelli Krishna, Kandelli

Anjibabu and Seeli Dhanalakshmi. The schedule property also contains one neem tree, one coconut tree and one mango tree. The schedule property was occupied by the predecessors of the above said four persons about 30 years back and after their demise, they have been in peaceful possession and enjoyment of the same. The schedule property is Government

Poramboke land and since very long back, the above said persons along with the Defendant have been in peaceful possession and enjoyment of the schedule property and the Plaintiff filed this suit without having any right, possession and enjoyment over the plaint schedule property by creating documents and obtained temporary injunction by suppressing the material facts.

4.2About two years back, Kandelli Suresh and Kandelli Krishna raised Reck Sheds and Seeli Dhanalakshmi raised thatched house for their residence and Anjibabu constructed cattle shed. Seeli Dhanalakshmi has been paying house tax to the Gram Panchayat and she also got electricity connection to her thatched house and paying electrical charges. Kandelli

Krishna also paying electrical charges to the APEPDC and they have been in possession and enjoyment of the plaint schedule property without any interruption. The Defendant, Kandelli

Suresh, Seeli Dhanalakshmi and Kandelli Anjibabu filed suit in O.S.335/2016 against the

Plaintiff, Gudimetla Naga Venkata Ratna Reddy and Government of Andhra Pradesh for permanent injunction. The Government of Andhra Pradesh conducted Praja Sadhikarika

Survey and issued Smart Gruha Code No.AXAQ 2701 to the house of Kandelli Suresh, Smart

Gruha Code No.AHCP 3811 to Seeli Satyanarayana, who is the husband of Seeli

Dhanalakshmi, Smart Gruha Code No.ASCP 8587 to Kandelli Krishna. The Government also recognized and registered the houses of the Defendant and other Plaintiffs in O.S.335/2016

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PJCJ/TNK which clearly shows that the Defendant and others have been in possession and enjoyment of the plaint schedule property by constructing houses. The plaint schedule filed by the Plaintiff, the boundaries mentioned and the extent therein are not correct and the plaint schedule property is not a vacant site and finally prayed the Court to dismiss the suit.

5.I S S U E S:­

Basing on the respective pleadings of both parties, the following issues were framed by my learned predecessor on 29­11­2016.

1. Whether the Plaintiff is entitled for permanent injunction restraining the Defendant, his men and agents from ever interfering with the peaceful

possession and enjoyment of the plaint schedule property?

2. Whether the Plaintiff is in possession and enjoyment of the plaint schedule property at the time of filing the suit?

3. To what relief?

6.TRIAL PROCEEDINGS:­

During the course of trial, the Plaintiff himself examined as PW­1, examined

PW­2 and got exhibited Ex.A1 to Ex.A3. On behalf of the Defendant, no oral or documentary evidence is adduced.

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

8.I S S U E Nos.1 and 2:­

Whether the Plaintiff is entitled for permanent injunction restraining the Defendant, his men and agents from ever interfering with the peaceful

possession and enjoyment of the plaint schedule property?

& Whether the Plaintiff is in possession and enjoyment of the plaint schedule property at the time of filing the suit?

8.1This Court is inclined to answer both the Issues together since they are interlinked with each and in order to avoid repetition of evidence and appreciation.

8.2According to Sec.101 of the initial burden casts upon the Plaintiff to prove the above said Issues. In order to discharge the initial burden, the Plaintiff filed the Evidence affidavit in lieu of his examination in chief reiterating the contents of the plaint and his

Evidence affidavit is nothing but replica of plaint. In support of his case and to substantiate his version, the Plaintiff also examined PW­2. It is the evidence of PW­2 that PW­1 got the suit

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PJCJ/TNK schedule property in the year 2016 from Reddy people and has been in peaceful possession and enjoyment of the same and the Defendant, who is residing opposite to PW­1, trying to interfere with the possession and enjoyment of PW­1 over the suit schedule property.The

Defendant failed to cross­examine PW­1 and PW­2. The Defendant did not chose to cross examine PW1 and PW2 and hence their testimonies are un­challenged. 

8.3A perusal of Ex.A­1/Original sale deed dated 02­05­2016 discloses that PW­1 purchased the suit schedule property from one Gudimetla Naga Venkata Ratna Reddy. A perusal of Ex.A­2/Original Settlement deed discloses that one Gudimetal Venkata Reddy,

Gudimetla Vijayalakshmi and Kovvuri Sridevi have settled an extent of 167 sq.yds of site in favour of Gudimetla Naga Venkata Ratna Reddy (Who is the vendor of PW1), which is part of the suit schedule property. A perusal of Ex.A­3/Original Relinquishment Deed dated 26­09­ 1995 discloses that one Gudimetla Dharma Reddy, Gudimetla Satti Reddy and Gudemetla

Perreddy reliquished their right of 3/4th over an extent of 336 sq.yds which is part of the suit schedule property and transfrred to the said Naga Venkata Ratna Reddy for a consideration of

Rs.20,000/­. A perusal of Exs.A­1 to A­3 disclose that the vendor of PW­1 by name Naga

Venkata Ratna Reddy got the suit schedule property under Exs.A­2 and A­3 and sold out the same to PW­1 under Ex.A­1 and the schedule property is vacant site.

8.4It is the defence of the Defendant that the suit schedle property is not a vacant site and it is a Government Poramboke land and the predecessors of Defendant and the predecessors of Kandelli Suresh, Kandelli Anjibabu and Seeli Dhanalakshmi occupied the same about 30 years ago and after their demise, they have been in peaceful possession and enjoyment of the same by erecting Rek Shed and also thatched house and thatched hut and got electricity connection to the thatched house of Seeli Dhanalakshmi for their residence. It is also the defence of the Defendant that the Government of Andhra Pradesh conducted Praja

Sadhikarika Survey and issued Smart Gruha Code No.AXAQ 2701 to the house of Kandelli

Suresh, Smart Gruha Code No.AHCP 3811 to Seeli Satyanarayana, who is husband of Seeli

Dhanalakshmi, Smart Gruha Code No.ASCP 8587 to the Defendant and four of them filed suit in O.S.No.335/2016 against PW­1, Gudimetla Naga Venkata Ratna Reddy and Government of

Andhra Pradesh for permanent injunction restraining them to interfere with their peaceful possession and enjoyment over the suit schedule property. But, the Defendant did not file any piece of document with the written statement and subsequent to the filing of written statement to support his contention. Further, the above said Kandelli Suresh, Seeli Dhanalakshmi and

Kandelli Anjibabu did not approach the Court till today to get implead them as parties to the present suit since the Defendant has been contending that he along with the above persons have been in possession and enjoyment of over the suit schedule property by erecting Rek

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Sheds, thatched house and thatched hut. Further, the Defendant did not choose to cross­ examine Pws­1 and 2 to disprove the case of PW­1 and to prove his case and the Defendant did not choose to adduce either documentary or oral evidence to substantiate his defence.

8.5The Honourable Supreme Court of India in the case of Vidhyadhar – Vs – Manik

Rao 1 held that:­ “Where a party to the suit does not appear into witness box and states his

own case on oath and does not offer himself to be cross­examined by the

other side, the presumption would arise that the case set up by him is not

correct”.

8.6In this case on hand, the Defendant did not adduce either oral or documentary evidence and step into the witness box to state his case and did not offer himself to be cross­ examined. Thus, a presumption would arise that the case set up by the Defendant is incorrect.

8.7From the unchallenged testimonies of PWs­1 and 2 coupled with Exs.A­1 to A­3, it is evident that PW­1 got the suit schedule property under Ex.A­1, which is a vacant site and

PW­1 could establish his title over the suit schedule property. Thus, the possession follows title. When PW­1 could establish his title over the suit schedule property flows through Ex.A­ 1/sale deed, the onus of proof shifts on to the Defednant to disprove the same. But, in order to disprove the same and to prove his case, the Defendant neither choose to cross examine PW1 & PW2 nor adduce his oral as well as documentary evidence contra to Ex.A1 to A3.

8.8In view of the above discussion, this Court is of the considred view that PW­1 could able to establish his title over the suit schedule property and the possession follows title and the Defendant failed to establish his possession and enjoyment over the suit schedle property and disprove the title of PW­1 over the same. In these circumstances, this Court is of the considered opinion that PW­1 could establish his case that he is in possession and enjoyment of the suit schedule property as on the date of filing of the suit.

8.9It is the un­challenged evidence of PW­1 and 2 that the Defendant has been inferfering with the possession and enjoyment of PW­1 over the suit schedule property.

Therefore, this Court is of the considered opinion that Plaintiff is entitled for permanent injunction as prayed for. Accordingly, the above issues are answered in favour of the Plaintiff and against the Defendant.

1. 1999(3) ALT (1) SC

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9.I S S U E No.3:­

To what relief?

In view of the discussion made by this Court on Issue Nos.1 and 2 and observations, this Court is of the considered view that the suit of the Plaintiff is liable to be decreed.

10.IN THE RESULT, the suit is decreed with costs granting permanent injunction restraining the Defendant and his men from ever interfering with the peaceful possession and enjoyment of the Plaintiff’s lawful possession over the suit schedule property.

{{Typed to my dictation to the Stenographer Gr.II, corrected, signed and pronounced by me in Open Court, this the 13 th day of April, 2022}}  SD/­ N.RADHIKA,

PRINCIPAL JUNIOR CIVIL JUDGE,

TANUKU

APPENDIX OF EVIDENCE

 WITNESSES EXAMINED

FOR PLAINTIFF FOR DEFENDANT

PW1: K. Musalayya ­None­ PW2:M. Narasimha Murthy

DOCUMENTS MARKED

FOR PLAINTIFF FOR

DEFENDANT

S.No. Description of the Document

 Ex.A1Original Sale Deed dated 02­05­2016. :: NIL ::

Ex.A2Original Settlement Deed dated 02­05­1995.

Ex.A3Original Relinquishment Deed dated 26­09­ 1995.

ID/­ N.R.

PJCJ/TNK

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O.S.No.313/2016 Dt.13­04­2022

PJCJ/TNK

Plaint presented on: 22­08­2016 Plaint filed on : 22­08­2016

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE, TANUKU.

Present: Smt. N. RADHIKA

Principal Junior Civil Judge, Tanuku

(Wednesday, this the 13th day of April, 2022)

Original Suit No.313/2016

Between:

Kodamanchili Musalayya, S/o. Gothiyya, Hindu, male, aged 37 years, Driver, r/o. D.No.5­ 149/A, Juttiga, Penumantra Mandal, W.G.Dt.

 … Plaintiff

And

Kandelli Krishna, S/o. Chanteyya, Hindu, male, aged 38 years, r/o. D.No.5­121, Juttiga, Penumantra Mandal, W.G.Dt. … Defendant

Suit for permanent injunction restraining the Defendant and his men from ever interfering with the peaceful possession and enjoyment of the Plaintiff over the Plaint Schedule

Property and for costs of the suit.

2. Value of the suit:­

The relief of permanent injunction is valued by the Plaintiff at Rs.10,000/­.

On which a court fee of Rs.786/­ is paid under Section 26(c) of APCF & S.V. Act, 1956. 

3. The cause of action for the suit arose on 02­05­2016 when the Plaintiff purchased the property and has been in possession and enjoyment of the same without any interruption and on 19­08­2016 when the Defendant tried to interfere with the plaint schedule property without any manner of right and at Juttiga, Penumantra Mandal, where the plaint schedule property situated within the jurisdiction of this Honourable Court.

4. This suit is coming on this day for final hearing before me in the presence Sri.G.

Veerreddy, Learned Counsel for the Plaintiff and of Sri K. Venkateswarlu, Learned counsel for the

Defendantand having stood over for consideration, till this day, this Court DOTH ORDER AND DOTH ORDER AND

DECREE as follows:DECREE

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O.S.No.313/2016 Dt.13­04­2022

PJCJ/TNK i.that the suit be and the same is hereby decreed; ii.that the Defendant and his men be and are hereby restrained by way of permanent injunction from ever interfering with the peaceful possession and enjoyment of the Plaintiff over the plaint schedule property; and iii.that the Defendant do also pay to the Plaintiff a sum of Rs.3938/­ towards costs of the suit bearing his own cots.

(Plaint schedule is hereto attached)

Given under my hand and the seal of this Court, this the 13th day of April, 2022.

SD/­ N.RADHIKA,

PRINCIPAL JUNIOR CIVIL JUDGE,

TANUKU

MEMORANDUM OF COSTS

FOR PLAINTIFFFOR DEFENDANT

1.Stamp on Vakalat2­00

2.Stamps on Plaint786­00 3Stamps on Process150­00No Cost memo filed 4Advocate Fee3000­00

5.Type charges­

Total costs taxed3938­00

ID/­ N.R. PJCJ TNK

PAGE:8 of 8

O.S.No.44/18 Dt.23-03-2020

IAJCJ, TNK

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE, TANUKU.

Present: Smt.N.RADHIKA I Additional Junior Civil Judge, Tanuku.

(Monday, this the 23rd day of March,2020.)

O.S.No.44/2018

Between:

Datla Sita Devi …Plaintif

And

Bonam Venkateswara Rao …Defendant

This suit is coming on 18-03-2020 for final hearing before me in the presence of Sri.M.Balaji Rao, learned Counsel for the Plaintif and Sri.V.V.Satyanarayana learned counsel for the Defendant, upon hearing arguments, upon considering the material available on record and the matter having been stood over for consideration till this day, the Court doth order and delivered the following:

-:JUDGMENT:-

1.This is a suit filed for recovery of Rs.2,68,666/- (Rupees Two lakhs sixty eight thousand six hundred and sixty six only) with costs and subsequent interest, basing on the promissory note dated 05-04-2015, with the following averments.

2. THE AVERMENTS OF THE PLAINT IN BRIEF ARE AS FOLLOWS:

The Defendant borrowed an amount of Rs.2,00,000/- (Rupees

Two lakhs only) from the Plaintif on 05-04-2015 for the purpose of his family expenses and discharge of sundry debts and executed the demand promissory-note in favour of the Plaintif agreeing to repay the same with interest, @ 12% per annum, as and when demanded either to the Plaintif or to her order. The Plaintif demanded the Defendant several times orally through her son and others and finally got issued a legal notice on 1 of 10

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09-01-2018 demanding payment of the promissory note amount and the same was received by the Defendant on 11-01-2018. But the Defendant did not pay the same. Hence, the suit.

3.After registering the suit, summons were issued to the

Defendant. The Defendant made his appearance through his counsel and filed written statement.

4.THE CASE OF THE DEFENDANT IN A NUTSHELL IS AS FOLLOWS:

The Defendant denied the material allegation levelled in the

Plaint. The Defendant borrowed an amount of Rs.40,000/- (Rupees Forty

Thousand only) from the husband of Plaintif and executed Promissory

Note. The Defendant paid entire amount to the husband of Plaintif.

Suddenly, the Plaintif’s husband died and pronote was not returned to the

Defendant. The Defendant never borrowed any amount and never executed promissory note in favour of the Plaintif on any date much less on 05.04.2015. No consideration was passed to the Defendant under the alleged Promissory Note. The suit Promissory Note is rank forged one. The

Defendant is not aware of the scribe and attestors of the suit Promissory note. The Plaintif, scribe and attestors colluded together and filed the suit in order to harass the Defendant. Finally, the Defendant prayed the Court to dismiss the suit.

5. ISSUES:-

Basing on the respective pleadings of the Plaintif and the

Defendant, the following issues were settled for Trial on 17.12.2018.

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1. Whether the Suit pronote is true, valid and binding on the Defendant?

2. Whether the Plaintiff is entitled to recover the suit amount?

3. To What Relief?

6. TRIAL PROCEEDINGS:-

During the Trial, the Plaintif herself examined as PW.1, she also examined PW.2 and got exhibited Ex.A1 to A6. On behalf of

Defendant, Defendant himself examined as DW.1. The testimonies of all the witnesses are very much available in the form of depositions and the same are not reproduced here to avoid repetition.

7.Heard the learned counsel for Plaintif and Learned counsel for the Defendant. Perused the material available on record.

8. ISSUE NO.1:-

Whether the Suit pronote is true, valid and binding on the

Defendant?

8.1.The Learned counsel for the Plaintif contended that from the testimonies of PW1 & PW2 coupled with Ex.A1 to A6, it is very clear that the Defendant borrowed amount from the plaintif and executed

Ex.A1/promissory note and thus, it is binding on the Defendant.

8.2.The learned counsel for the Defendant contended that the

Defendant never borrowed the amount from the Plaintif and never executed the promissory note and this suit is filed only to harass the

Defendant and prayed the Court to dismiss the suit.

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8.3.In-order to discharge the initial burden casts upon the Plaintif, the Plaintif filed her chief examination affidavit, by reiterating the contents of plaint, no new facts has been testified and hence chief examination affidavit of Plaintif is nothing but replica of plaint. The

Plaintif examined the 1st attestor of Ex.A1/promissory note as PW2, to support her contention.

8.4.It is the evidence of PW1 & PW2 that the Defendant borrowed an amount of Rs.2,00,000/- from PW1 on 05-04-2015 and executed

Ex.A1/promissory note in the presence of PW2, one Ch.Linga Raju and one

G.Pattabhi scribed the promissory note. In the cross examination PW1 deposed that the Defendant took Rs.5,000/- and Rs. 10,000/-on previous occasions and repaid and the Defendant used to take hand loan previously.

PW1 denied the suggestion that she forged the pronote basing on the discharged pronote. PW1 denied the suggestion that she has no capacity to lend the amount. In the cross examination PW2 deposed that at the time of transaction, husband of the Plaintif, Pattabhi Abhiram and one

Ch.Linga Raju were present and the transaction took place at the house of

Plaintif in between 11 AM and 12 noon. PW2 denied the suggestion that the Defendant never borrowed any amount from the Plaintif and never executed the pronote.

8.5.From the written statement of Defendant, it is his defense that he borrowed an amount of Rs.40,000/- from the husband of PW1, by executing the promissory note and the Defendant paid the entire amount to the husband of PW1; and that suddenly the husband of PW1 died and 4 of 10

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the pronote was not returned to the Defendant; and that there was no transaction between him and PW1; and that no consideration was passed under Ex.A1/promissory note. From cross examination of PW1 and PW2, it is not the case of the Defendant that he has disputes with PW1 and PW2 and as such they fabricated the suit promissory note. Thus, It is evident that the Defendant has no disputes with PW1 and PW2. When there are no disputes between the Defendant and PW1 & PW2, there is no necessity for

PW1 & PW2 to fabricate the pronote and to file the suit. Further, the

Defendant could not elicit any favorable answers from PW1 & PW2 about the reasons for fabrication of the suit pronote.

8.6.From the cross examination of PW1 that it is the contention of the Defendant that PW1 has no capacity to lend the amount. In order to substantiate that PW1 has capacity to lend amount, PW1 filed Ex.A4 to

Ex.A6/Certified copies of the Registered Sale deeds. In the cross examination it was suggested to PW1 that she sold out the properties and at present they are not in her possession and she is not earning any income out of the same. Except mere putting the said suggestions, the Defendant did not elicit anything contra to Ex.A.4 to Ex.A6 and to substantiate his contention that PW1 has no capacity to lend the amount. Further, DW.1 did not elicit from PW.1 that when PW.1 sold out the properties covered under Ex.A.4 to A.6, to whom they were sold and what was the consideration. Thus, it is evident that PW1 has somehow satisfactorily established her capacity to lend amount.

8.7. Further, the testimonies of PW1 and PW2 are corroborating with regard to borrowing of the amount by the Defendant and execution of 5 of 10

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Ex.A1/promissory note. The Defendant though cross examined PW1 and

PW2 at length, but nothing could be elicited to substantiate his case set out in the written statement. Thus, the testimonies of PW.1 & PW.2 are believable and trustworthy.

8.8. When the Plaintif herself examined as PW1 and examined

PW2 and exhibited Ex.A1 to Ex.A6 and their testimonies are believable and trustworthy, the onus of proof shifts on to the Defendant to say that he did not borrow amount and did not execute Ex.A1/promissory note. In order to discharge his onus of proof, the Defendant himself examined as

DW1, filed chief examination Affidavit reiterating the contents of his written statement. In the cross examination DW1 admitted that the signature across the Revenue stamp and underneath the same are that of him. Thus, from the said admission, it is evident that DW1 admitted his signature on Ex.A1/promissory note. According to Sec.118 of Negotiable

Instruments Act, 1881, When once the Defendant admitted the signature on the promissory note, it has to be presumed that the promissory note is supported by consideration. However, the said presumption is rebuttal presumption. It is for the Defendant to rebut the presumption by placing cogent and convincing material on record.

8.9. DW1 further deposed that he never borrowed Rs.40,000/- from husband of PW.1 by name Datla Krishnam Raju and in the chief examination, he got mentioned that he borrowed amount from Krishnam

Raju but it was mentioned by mistake. DW1 further deposed that he never handed over the signed blank promissory notes to the Krishnam Raju. DW1 again stated that he borrowed Rs.10,000/- from the said Krishnam Raju 6 of 10

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and handed over one signed blank promissory note to him. DW1 pleaded ignorance about the properties of PW.1. DW1 further deposed that he never demanded PW.1 to return the alleged signed promissory note after the death of her husband.

8.10. From the written statement of Defendant and the cross examination of PW1, it is the main contention of DW.1 that he borrowed

Rs.40,000/- from husband of PW1, by name Krishnam Raju, by executing the pronote, he discharged the same, later, the said Krishnam Raju died, but PW.1 did not return the pronote. But the cross examination of DW1 is quite contrary to his defence set-out in the written statement. DW.1 deposed that he got mentioned in the Chief - Examination that he borrowed Rs.40,000/- from the said Krishnam Raju but it was mentioned by mistake. DW1 further deposed that he never demanded PW.1 to return the alleged singed pronote after the death of her husband. The admissions of DW1 in his cross examination negatives his defence set-out in the written statement and fortifies the case of the PW1. Further, DW1 did not elicit from the cross examination of PW1 about the alleged promissory note said to have been executed during the life time of her husband. If at all, DW1 demanded PW1 to return the alleged promissory note said to have been executed during the life time of husband of PW1, certainly DW1 would have elicited the same in the cross examination of

PW1 & PW.2. Further, the written statement of DW1 and his evidence are silent when he discharged the promissory note debt said to have been executed in favour of the husband of PW1 and when he demanded PW1 to return the promissory note.

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8.11. It is the evidence of PW.1 that she got issued Ex.A2/legal notice to DW.1 and DW.1received the same under Ex.A3/Acknowledgment.

In the cross examination DW1 categorically dsposed that he received the legal notice prior to filing of the suit and he did not give any reply. If at all,

DW1 did not borrow the amount from PW1, he would have issued reply notice. Thus, non-giving of reply is also one of the strong circumstances to say that DW1 borrowed amount from PW1.

8.12.All the above said attending circumstances lead to conclude that the case of the Defendant is unbelievable and untrustworthy and fortifies the case of Plaintif.

8.13.In view of above discussion, this Court is of the considered opinion that Defendant borrowed amount from Plaintif and executed

EX.A1 and Ex.A1 is binding on the Defendant. This issue is answered accordingly in favour of the Plaintif and against the Defendant.

9.ISSUE NO.2::

Whether the Plaintiff is entitled to recover the suit amount?

9.1. In view of the aforesaid discussion of this Court on issue No.1, it is manifest that Defendant borrowed amount from Plaintif and executed Ex.A1 promissory note. There arises an obligation on the part of

Defendant to discharge the amount due to Plaintif under Ex.A1 and

Plaintif is entitled to recover the amount from Defendant. This issue is answered accordingly in favour of the Plaintif and against the Defendant.

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10. ISSUE NO.3:-

To What Relief?

In view of the discussion of this Court on issue Nos.1 and 2, this

Court is of the considered opinion that the suit of the Plaintif is liable to be decreed with costs.

11. IN THE RESULT, the suit of the Plaintif is decreed with costs against the Defendant for a sum of Rs.2,68,666/- (Rupees Two lakhs sixty eight thousand six hundred and sixty six only) and subsequent interest at the rate of 12% per annum from the presentation of the suit till the date of decree, and thenceforth, at the rate of 6% per annum till realization, on the principal sum of Rs.2,00,000/- (Rupees Two lakhs only).

{{Dictated to the Stenographer, transcribed by her, corrected, signed and

pronounced by me in the open Court, this the 23 rd day of March, 2020}}

Sd/-N.Radhika

I.ADDL. JUNIOR CIVIL JUDGE,

TANUKU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant:

PW.1 D.Sita Devi

DW.1: B.Venkateswara Rao PW.2: N.Satyanarayana 9 of 10

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DOCUMENTS MARKED

For Plaintiff: For Defendant:

Ex.A1:: Original promissory note dt. 05.04.2015

Ex.A2: Office copy of legal notice dt.09- 01-2018::NIL:: Ex.A3: Original Postal Acknowledgment dt.11-01-2018 Ex.A4: Certified copy of Registered Sale deeddt.25-01-1993Vide Doc.No.130/193 Ex.A5: Certified copy of Registered Sale deeddt.25-01-1993Vide Doc.No.132/193 Ex.A6: Certified copy of Registered Sale deeddt.24-03-2006Vide Doc.No.1075/2006

Sd/-N.Radhika

I.ADDL. JUNIOR CIVIL JUDGE,

TANUKU.

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