Smt. S.hemalatha, Bcom, Llm

1 O.S.No.463 of 2012

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE, NELLORE,

SPSR NELLORE DISTRICT.

Wednesday, this the 14th day of September, 2016

Present: Smt.S.Hemalatha, I Addl.Junior Civil Judge, Nellore. (FAC)Principal Junior Civil Judge, Nellore.

O.S.No.463 of 2012

Between:

Kondapalli Koteswara Rao ... Plaintiff

And:

1. Gangineni Narasimham(died)

2. Gangineni Subbamma

3. Sode Penchalamma (Defendant No. 3 added as per

orders in IA.No.528/13 dt.8.8.13) ... Defendants

This suit is coming on 06.09.2016 for final hearing before me in the presence of Sri.N.Venkateswara Rao, advocate for the plaintiff and of

Sri.D.Dhamareswar, advocate for defendant No.2, 1st defendant died during pending of the suit, 3rd defendant remained ex parte and having stood over for consideration till this day, the Court delivered the following:-

:: JUDGMENT ::

This suit is filed for declaration that the plaintiff is the absolute owner of the suit property which is an extent of 2 ankanams from P,Q points and direct the defendants to remove the constructions made in it and deliver vacant possession of the suit property and also for permanent injunction restraining the defendants from interfering with plaintiff's possession of suit property.

2. Initially, the suit was filed against the defendants 1 and 2. Later as per orders on IA.No.528/13 defendant No. 3 was impleaded.

3. The averments of the plaint, in brief, are as follows. The plaintiff is a blind man and his son by name K.Madhava has been assisting him. He is the G.P.A holder of the plaintiff by virtue of a G.P.A dated 3.10.2011 and rectification deed dt.21.7.2012. Defendants 1 and 2 are the husband and 2 O.S.No.463 of 2012 wife. They were residing temporarily by occupying the Government site of 12 ankanams adjacent to the 2 ankanams of site of the vendor of the plaintiff.

(a) The plaintiff purchased 18 ankanams of vacant site from one

Grandhisila Subbarao under a registered sale deed dt.4.4.2002. On the same day the plaintiff took possession of the said extent and has been enjoying it. Thus, the plaintiff is the absolute owner of the suit property described as ABCD which is an extent of 16 ankanams and 2 ankanams from P,Q wall on the southern side of it.

(b) Originally, his vendor Subbarao purchased an extent of 20 ankanams from the 1st defendant under a registered sale deed dt.9.7.1990 for a valid consideration. The 1st defendant sold his entire 20 ankanams and delivered vacant possession to Subbarao under a registered sale deed dt.9.7.1990. Later Subbarao sold 18 ankanams to the plaintiff and retained 2 ankanams with him. It is situated on the southern side of 18 ankanams sold to Subbarao. At the time of purchase by the plaintiff, the site sold to the plaintiff was duly measured and vacant possession was delivered to the plaintiff in the presence of his son and relatives. By that time there was old wall in existence from East to West enclosing 16 ankanams and there was 2 ankanms beyond that. The vendor of the plaintiff also clarified that there is an extent of 4 ankanams on the southern side of the wall. Since the date of purchase, the plaintiff has been in possession and enjoyment of the total 18 ankanams.

(c) The plaintiff worked as head-master at Venkatagiri from 2005 to 2009. Taking advantage of absence of the plaintiff and his blindness , in the year 2008 defendants 1 and 2 constructed a bathroom septic tank and laid drainage pipes in an extent of 2 ankanams belonging to the plaintiff. The family of the defendants 1 and 2 knows that the said extent 3 O.S.No.463 of 2012 belongs to the plaintiff. Coming to know of the illegal construction raised by defendants 1 and 2, the plaintiff questioned them. They promised to remove the unauthorized constructions when the plaintiff proposes to start new construction. As the plaintiff intended to construct a house by removing the old one he requested defendants 1 and 2 to fulfill their promise. However, after the plaintiff removed the southern wall, the defendants 1 and 2 constructed a wall shown as PQ in the plaint plan to grab the said extent. The 2nd defendant also filed OS.No.649/11 on the file of this court seeking permanent injunction. Therefore, the plaintiff filed suit for declaration and also for mandatory injunction for removal of the unauthorized constructions and for recovery of possession of it.

4. During the pendency of the suit, the 1st defendant died. The 3rd defendant is brought on record as the legal heir of the 1st defendant and the 2nd defendant is also recognized as one of the legal heirs of the 1st defendant. Thereafter, the plaintiff has incorporated in the plaint that the illegal constructions raised by the 1st defendant are bound to be removed by defendants 2 and 3 as they are the legal heirs of the 1st defendant.

5. The 3rd remained exparte. The 2nd defendant alone contested the suit. She denied the averments of the plaint. The contentions in the written statement, in brief are as follows. The 2nd defendant is the absolute owner of 16 ankanams of site including the disputed 2 ankanams. The 2nd defendant has been in possession and enjoyment of it since 30 years.

There were disputes between defendants 1 and 2 for the last 20 years.

The 2nd defendant constructed ACC roofed house in the extent of 16 ankanams. In the year 2005, the 2nd defendant made a representation to the Tahasildar, Nellore to grant a patta in respect of the property in her possession. The Tahasildar Nellore issued a notice on 22.10.2007 to the 2nd defendant directing her to pay Rs.1,67,680/- towards market value of the said site. Thereupon, the 2nd defendant made a representation to the 4 O.S.No.463 of 2012 Tahasildar to reduce the amount. It is under consideration. During the process of regularization, the Mandal Surveyor, Nellore measured the site in possession of the defendant and found it to be an extent of 128 square yards.

a) The 2nd defendant learnt that in the sale deed obtained by

G.Subbarao the extent is wrongly described. The plaintiff purchased the property from the said Subbarao. After purchase, the plaintiff constructed a compound wall in between his site and the suit property. The plaintiff removed his house and while preparing to construct a new house, he demolished the compound wall and now he is claiming 2 ankanams which is merged in the site of 2nd defendant. There was a hut beside the site of the plaintiff. The 2nd defendant constructed bath room, septic tank and laid drainage pipe line by the side of the compound wall of the plaintiff long back. As the plaintiff tried to trespass into the site of the defendant, she constructed compound wall in her site. The 2nd defendant learnt that the plaintiff obtained a registered rectification deed from his vendor to grab the site of the 2nd defendant. Therefore, it is not binding on the 2nd defendant.

b) The plaintiff has no right over the 2 ankanams claimed by him.

Therefore, he is not entitled to any of the reliefs sought by him. This court has no jurisdiction to try the suit as the suit property is located within the limits of Municipal Corporation and Land Grabbing Special Tribunal is situated in Nellore. Alternatively, the 2nd defendant also perfected her right to the suit property by way of her adverse possession. Thus, the suit is liable to be dismissed with costs.

6. Based on the above pleadings, the following issues are settled for trial:

1.Whether the plaintiff is entitled for declaration of his title over suit schedule property ?

5 O.S.No.463 of 2012

2.Whether the plaintiff is entitled for delivery of disputed 2 ankanams site of Suit schedule property , as prayed for ?

3.Whether the plaintiff is entitled for permanent injunction ?

4.Whether the plaintiff is entitled for mandatory injunction directing defendants 2 and 3 to remove the constructions in disputed 2 ankanams site, as prayed for ?

5.To what relief?

7. On behalf of plaintiff, P.W.s1 to 5 are examined, Exs.A1 to A6 marked and C1 to C3 are marked. On behalf of the 2nd defendant D.W.1 is examined but no documentary evidence is adduced.

8. Heard learned counsel for both the parties and perused the material on record.

9. ISSUE No.1: The plaintiff states that he purchased an extent of 18 ankanams under Ex.A3 registered sale deed dated 4.2.2002 from one

Grandhisila Subba Rao, that at the time of execution of Ex.A3, the southern boundary was wrongly described, that his vendor executed Ex.A4 rectification deed, that plaintiff was working at Venkatagiri and taking advantage of the absence of the plaintiff, defendants 1 and 2 raised unauthorized constructions in an extent of 2 ankanams from PQ wall, that when the plaintiff questioned the same, defendants promised to remove them whenever the plaintiff wants to make construction, but without removing it, defendants denied the title of the plaintiff to the said extent.

Therefore, plaintiff seeks to declare his right and title to the said extent of 2 ankanams. On the other hand, 2nd defendant contended that the plaintiff has no right over the said extent of 2 ankanams and it belongs to the 2nd defendant, that the constructions in the disputed 2 ankanams were raised long back, that there was southern boundary wall to the extent purchased by the plaintiff, that plaintiff has demolished the said wall and wanted to 6 O.S.No.463 of 2012 encroach into the property of the 2nd defendant, that the 2nd defendant made representation to the Tahsildar, Nellore for grant of patta in respect of the extent in her possession and therefore, the disputed property belongs to her. Thus, she seeks to dismiss the suit.

10. As seen from the pleadings, the 2nd defendant has not disputed the plaintiff's purchase of property on the northern side of her property under Ex.A3. The main dispute is regarding the 2 ankanams. Plaintiff relied on the evidence of P.Ws.1 to 5 coupled with Exs.A1 to A6 to prove his right and title to the suit property. The GPA holder of the plaintiff is examined as P.W.1. In his chief-examination he has stated that plaintiff purchased an extent of 18 ankanams from Grandhisila Subba Rao, that originally, Subba Rao purchased an extent of 20 ankanams of vacant site from the 1st defendant under Ex.A5 registered sale deed dated 9.7.1990, that he sold 18 ankanams to the plaintiff and retained 2 ankanams on the southern side and that the extent was measured and possession was delivered to the plaintiff on the same day. He further stated that there was a wall separating 16 ankanams on the northern side and 4 ankanams on the southern side belonging to Grandhisila Subba Rao, that defendants have no site adjacent to the property of the plaintiff.

11. P.W.2 is the vendor of the plaintiff. He has also supported the version of the plaintiff. He has stated that he purchased 20 ankanams from the 1st defendant and that he sold an extent of 18 ankanams to the plaintiff and retained 2 ankanams on the southern side. He further stated that a prospective purchaser came forward to purchase only 16 ankanams and therefore, he raised wall separating 16 ankanam running from east to west, but the transaction failed and taking advantage of the mistake in the southern boundary, defendants are wrongly claiming the extent of 4 ankanams. P.W.3 is the one of the attestors of Ex.A3. He also supported the version of the plaintiff.

7 O.S.No.463 of 2012

12. Be that as it is. Before appreciating the said evidence of P.Ws.1 and 2, it is pertinent to refer to the documentary evidence. Ex.A5 is the link document of the plaintiff. It is executed by the 1st defendant in favour of P.W.2. As seen from this document, the 1st defendant sold plot No.26 admeasuring 20 ankanams to P.W.2 specifying the boundaries. There is no reference about the origin of title of 1st defendant in this document. It is simply said that the 1st defendant sold the extent owned by him. Ex.A4 is the rectification deed executed by P.W.2 in favour of plaintiff. In this document, it is recited that instead of mentioning the southern boundary as the 2 ankanams retained by P.W.2, the southern boundary is described as the site of 2nd defendant in Plot No.27. Accordingly, the southern boundary is rectified as 2 ankanams of site retained by P.W.2 in plot

No.26.

13. Learned counsel for the plaintiff submitted that Ex.A5 is the sale deed executed by 1st defendant, the husband of the contesting defendant, that in this document the extent and boundaries are clearly specified, that the southern boundary is shown as Plot No.27 belonging to one Venkaiah and the name of the 2nd defendant is not referred, that the 2nd defendant has not filed a single scrap of paper to prove her right over the disputed extent and that the report of the surveyor categorically shows that the disputed extent is part of the property purchased by the plaintiff. Learned counsel further submitted that the 2nd defendant took contradictory pleas, that she denied the title of the plaintiff to the suit property on one hand and on the other she has taken the plea of adverse possession and even she has not filed any scrap of paper showing whether she purchased any extent from Venkaiah and she has also not filed any of the representations given by her. Thus, learned counsel submitted that by virtue of documentary evidence coupled with oral evidence and surveyor's report, plaintiff proved his right and title to the suit property.

8 O.S.No.463 of 2012

14. P.W.1 is the son and GPA holder of the plaintiff. The 2nd defendant disputed the authority of P.W.1 to give evidence on behalf of the plaintiff. As stated supra, in the chief-examination P.W.1 has stated that he has personal knowledge about all the facts and that he in his presence the property was delivered and the entire transaction took place.

Admittedly, he is the son of the plaintiff and the plaintiff is a blind. So, when he has personal knowledge about the facts, his evidence can be considered and for non-examination of plaintiff adverse inference can not be drawn.

15. In view of the rival contentions, now the main aspect to be seen is as to whether the disputed extent is the part and parcel of the extent purchased by the plaintiff. P.W.2 has stated in the cross-examination that he purchased 20 ankanams of site in the year 1990 from Narasimhulu (D1), that at the time of his purchase, one Venkaiah was his southern boundary owner. As per his chief-examination, he constructed compound wall separating 16 ankanams on the northern side and 4 ankanams on the southern side. However, in the cross-examination he has admitted that he constructed wall in between his property and the property of Venkaiah and that it is his boundary wall. He further admitted that he sold the site situated within the boundary wall. He further admitted that after he constructed the boundary wall, the defendants are residing on the southern side of the said wall. So, these statements in his cross- examination are contrary to his chief-examination. It falsifies his construction of boundary wall on the south of 16 ankanams, and selling 18 ankanams i.e, 16 on the north of wall and 2 on the south and retaining two ankanams on further south of it.

16. No doubt, he has executed Ex.A4 rectification deed rectifying the southern boundary. However, admittedly, by the date of its execution, 9 O.S.No.463 of 2012

O.S.No.649 of 2011 was filed by the 2nd defendant with regard to the

disputed extent. So, this document is executed pending the litigation. As such, much credence can not be attached to it. Though P.W.1 stated that the property was measured at the time of sale and possession was delivered, the report of the earlier surveyor is not filed.

17. At the instance of the plaintiff, commissioner was appointed and surveyor measured the property of both the parties. Much reliance is placed on the report of the surveyor and the measurements noted by him.

In chief-examination, P.W.5, the surveyor, has stated that he measured the property of both the parties and if the disputed extent is included in the site of the plaintiff, it comes to 18.3 ankanams. Admittedly, on the immediate south of the wall, there are constructions and P.W.1 also admitted that 2nd defendant has been in occupation of the property on the southern side of their wall. If that being so, there must be 2 ankanams beyond the disputed extent. However, there is no such extent. P.W.2 also admitted that he did not take any action against the 2nd defendant for occupying his 2 ankanams. If really he has purchased 20 ankanams and retained 2 ankanams, he would have definitely taken action against the defendants. Further, admittedly, P.W.2 has no other property on the south of disputed 2 ankanams. So, retaining only 2 ankanams is improbable.

18. Admittedly, the property of the plaintiff is in plot No.26, whereas the property on the southern side of it is in Plot No.27. As per Ex.A3, the property of 2nd defendant is in Plot No.27. Ex.C3 does not contain plot numbers. It is not even elicited from P.W.5 as to whether the disputed extent is in plot No.26 or Plot No.27. It is the crucial issue. If it is found that the disputed extent is in Plot No.26, the dispute would have been resolved because, the 2nd defendant is not claiming Plot NO.26. She is only claiming Plot No.27.

10 O.S.No.463 of 2012

19. Further, another aspect noteworthy is, the 2nd defendant filed suit in the year 2011 itself claiming the disputed extent. If really the version of the plaintiff is true and if the 2nd defendant has raised unauthorized constructions, immediately he would have filed the suit for declaration. However, this suit is filed in the year 2012, after getting the rectification deed.

20. No doubt, the defendant has not filed a single scrap of paper in support of her claim over the disputed property. She further admitted that neither she nor the 1st defendant sought for cancellation of sale deed executed by the 1st defendant in favour of P.W.2. However, that does not prove that the extent sold is 20 ankanams and the said extent was available physically on the ground also. Having taken a specific plea that the said extent is available, initial burden is on the plaintiff to prove his case. He can not depend on the weakness in the case of the defendants.

The 2nd defendant (D.W.1) has stated in the cross-examination that about 11 years prior to her giving evidence she constructed bathroom, septic tank and laid drainage pipeline. She denied the suggestion that they were constructed around the year 2008 or 2009. If really they were constructed in the site of the plaintiff, he would not have waited till the 2nd defendant filed the suit. He would have filed the suit before the 2nd defendant approached the court. In Ex.A6 certified copy of the plaint filed by the 2nd defendant, in para 4 she has categorically stated that after the plaintiff herein removed his wall and tried to encroach into her site, she constructed compound wall. So, there was litigation in the year 2011 itself and the 2nd defendant has raised the compound wall. As such, if it is the site of the plaintiff, he, being the aggrieved, would have immediately approached the court, but not the 2nd defendant. Further, naturally, whenever any compound wall is constructed, it would be enclosing the entire extent. Though P.W.2 introduced a story, there is no evidence in 11 O.S.No.463 of 2012 support of it. He did not even mention the name of the prospective purchaser who intended to purchase only 16 ankanams for enabling him to construct compound wall and he is not examined.

21. As regards the plea of adverse possession, relying on the judgment of the Hon'ble High Court of Karnataka in the case of

M.K.Venugopal v. Aswathama, reported in AIR 2005 Karnataka 33, learned counsel for the plaintiff submitted that the 2nd defendant must show by clear and unequivocal evidence that possession was hostile to the real owner and amounted to denial of his title to the property, but the 2nd defendant has not proved her longstanding hostile possession.

22. There can not be any dispute regarding the said proposition. As observed supra, the 2nd defendant did not admit the title of the plaintiff to the disputed extent. She denied the title and alternatively set up the plea of adverse possession. As such, the proposition laid down in the said case has no application to the case on hand. Further, it is settled proposition of law that in a suit for declaration, burden is throughout on the plaintiff. If he is able to establish his title, then the onus would shift on the 2nd defendant to prove her plea and title to the disputed extent. However, as observed supra, there is no probable evidence to show that there was 20 ankamans existing on the ground by the date of execution of Ex.A5 and that plaintiff measured and purchased 18 ankanams. It is also settled proposition that boundaries prevail over the extent. Irrespective of the extent mentioned, when the southern boundary is referred as Plot No.27, the extent sold under Ex.A3 must be within the boundaries referred in

Ex.A3. Mere obtaining rectification deed pending the litigation would not prove the plaintiff's case. Therefore, without discharging his burden, the plaintiff can not pick up loopholes in the case of the 2nd defendant and seek a decree.

12 O.S.No.463 of 2012

23. For the foregoing reasons, I am of the view that the plaintiff failed to prove his right and title to the disputed extent. Therefore, he is not entitled for declaration, as prayed for. Accordingly, this issue is answered in favour of the defendants and against the plaintiff.

24. Issue Nos.2 to 4: When the plaintiff failed to establish his right and title to the disputed extent, he is not entitled to the relief of mandatory injunction for removal of the constructions raised in it and for recovery of possession of the disputed extent. Consequently, he is also not entitled to permanent injunction. Accordingly, these issues are answered in favour of defendants and against the plaintiff.

25. Issue No.5: In view of the findings on issues 1 to 4, the suit is to be dismissed with costs.

In the result, the suit is dismissed with costs.

Typed to my dictation, corrected and pronounced by me in the open court on this the 14th day of September, 2016.

Sd/- S. Hemalatha,

I Addl. Junior Civil Judge, Nellore. (FAC) Principal Junior Civil Judge, Nellore.

Appendix of Evidence

Witnesses examined

Plaintiff: Pw.1: Kondapalli Madhava Pw.2: Grandhisila Subba Rao Pw.3: Tulasiram Singh Sultan Pw.4: D.S.V.Ramakrishna Kumar Pw.5: A. Narasimha Murthy

Defendants: Dw.1: Gangineni Subbamma

Exhibits marked on behalf of: Plaintiff:

Ex.A1: Registered GPA dt. 03.10.2010 executed by one Kondapalli Koteswara Rao i.e.,plaintiff in favour of Kondapalli Madhava.

Ex.A2: Registered Rectification deed dt. 21.07.2012 executed by Kondapalli Koteswara Rao in favour of Pw1.

Ex.A3: Original Sale deed dt. 04.04.2002 executed by one Grandhisila Subba Rao in favour of Kondapalli Koteswara Rao with respect to plaint schedule property.

13 O.S.No.463 of 2012

Ex.A4: Rectification deed dt. 05.09.2011 executed by G. Subba Rao in favour of Kondapalli Koteswara Rao in respect to southern boundary in Ex.A3.

Ex.A5: Original sale deed dt. 09.07.1990 executed by one Gangineni Narasimhulu i.e.,defendant No.1 in favour of Grandhisila Subba Rao.

Ex.A6: Served copy of the plaint in O.S No.649/2011 on the file of this court filed by 2nd defendant against the plaintiff seeking relief of permanent injunction.

Through Pw.4:

Ex.C1: Report. Ex.C2: Sketch of the surveyor. Ex.C3: Another sketch of the surveyor highlighting the disputed site.

Defendants: Nil.

Sd/-S. Hemalatha,

I AJCJ, NLR.

(FAC) PJCJ, NLR.

O.S. No 158 of 20151

IN THE COURT OF THE I ADDL. JUNIOR CIVIL JUDGE, NELLORE,

SPSR NELLORE DISTRICT

Monday, this the 10th day of April, 2017

Present:- Smt.S.Hemalatha, I Addl. Junior Civil Judge, Nellore

O.S. No. 158 of 2015

Leburu Venkataramana Reddy… Plaintif

Vs.

1. K.Rama Subbaiah

2. K.Masthanaiah… Defendants

This suit coming on 04.04.2017 before me for final hearing in the presence of Sri.P.Uma Maheswar, advocate for the plaintiff and of

Sri.K.Sesha Reddy, Sri.K.Mallikarjuna and Sri.B.Srinivasan, advocates for the defendants, and having stood over till this day for consideration, this court delivered the following:-

:: JUDGMENT ::

This suit is filed for declaration of the right of the plaintiff to discharge rain water, excess water and drain water from item No.1 of the plaint 'A' schedule through the plaint 'B' schedule channel described as 'B1, B2, B3, B4' into 'cheruvu channel'; for mandatory injunction directing the defendants to restore the plaint B schedule channel which is with a width of 2 feet 6 inches and 185 links equivalent to 139 feet; and for permanent injunction restraining the defendants from interfering with the plaintiff's right to discharge the rain water, excess water and drain water from item No.1 of the plaint 'A' Schedule through the plaint 'B' schedule channel.

O.S. No 158 of 20152

2. The case of the plaintiff, in a nutshell is as follows. Plaintiff is the absolute owner of items 1 and 2 of the plaint 'A' schedule mentioned property, having purchased it under a registered sale deed,

dated 02.03.1986, from one Koduru Venkaiah. The plaintiff has been in

possession and enjoyment of the said property without any interruption.

Item No.1 of the plaint A schedule is a land and the plaintiff converted it into fish pond. Item No.2 of the plaint 'A' schedule is a patta channel exclusively provided for item No.1 of the plaint 'A' schedule for discharging rain water, excess water, pulka water and drain water etc., from item No.1 of the plaint 'A 'schedule. Item No.1 is described ABCD and item No.2 is described as A1, A2, A3 and A4 in the plaint plan.

a. There is a channel running from north to south on the eastern side of item No.2 of the plaint A schedule. It is described as 'B1,B2,B3,B4' in the plaint plan. Its width is 2 feet 6 inches and length is 185 links equivalent to 139 feet. The said channel goes towards the southern side from 'B3, B4' point. The existence of item No.2 of the plaint 'A' schedule channel is shown in the sale deed of the plaintiff and also his link document.

b. Item No.2 of plaint 'A' schedule channel is a patta channel of the plaintiff and it starts from item No.1 of the plaint 'A' schedule. It joins the plaint 'B' schedule channel. There is no other source to discharge the rain water, excess water and drain water etc., from item

No.1 of the plaint 'A' schedule except through the item No.2 and the

O.S. No 158 of 20153

plaint 'B' schedule channels. The plaintiff has been in possession and enjoyment of items 1 and 2 of the plaint 'A' schedule. As the lands surrounding item No.1 of the plaint 'A' schedule, including the lands of the defendants, were converted into fish ponds, the plaintiff also converted item No.1 into fish ponds about 15 years ago and raising fish culture to the knowledge of all, including the Government officials. Due to local disputes between the plaintiff and the defendants, taking advantage that their land exists on either side of item No.2 of the suit schedule, the defendants tried to obstruct the plaintiff from discharging the water through item No.2 of the plaint 'A' schedule. The plaintiff filed

OS.No.803 of 2002 on the file of this court against the defendants for

permanent injunction restraining them from interfering with the plaintiff's right to discharge, water through item No.2 of the plaint 'A' schedule. The suit was decreed on 18.10.2005.

c. Recently, with an evil intention and also on account of the existing local disputes between the plaintiff and the defendants, the defendants intended to trouble and harass the plaintiff. About a month prior to filing the suit they removed the plaint 'B' schedule channel during night hours highhandedly and the channel on its further south and merged the same with the land of the 2nd defendant, who got land on the either side of the plaint 'B' schedule channel. Coming to know of the same and immediately on the next day of removal of the channel, the plaintiff and his father questioned the highhanded acts of the defendants, but they gave evasive reply. When the issue was placed

O.S. No 158 of 20154

before the village elders, defendants did not heed the words of elders.

Revenue authorities also did not take any action against the defendants though the plaintiff placed the matter before them. The plaintiff is a law abiding citizen, that he has no capacity to restore the channel and therefore, he filed this suit seeking appropriate reliefs.

3. The 1stdefendant filed written statement and the 2nd defendant adopted it. They admitted that the plaintiff converted item No.1 of the plaint 'A' schedule into fish ponds, but, they denied the other averments of the plaint. The contentions in the written statement, in brief, are as follows. The plaint 'B' schedule property is the own property of the defendants and the plaintiff has no right over it. Item No.2 of the plaint 'A' schedule consists of only 300 links of length, as per the documents of the plaintiff, whereas the plaintiff is claiming it as 5 links width and 500 links length. There is no whisper about the plaintiff's right over the plaint 'B' schedule property. Therefore, he is not entitled to any of the reliefs sought by him. The plaint plan is not correct. The plaintiff has no cause of action to file this suit. Therefore, this suit is liable to be dismissed with costs.

4. Based on the above pleadings, the following issues were settled for trial:

1) Whether the plaintif is entitled for declaration of his right

to discharge of his right to discharge the rain water, excess

water and drain water from item No.1 of plaint-A schedule

through the plaint 'B' schedule, B1, B2, B3 and B.4 channel

as prayed for ?

O.S. No 158 of 20155

2) Whether the plaintif is entitled for mandatory injunction

directing the defendants to restore the plaint B-Schedule

channel which is width of 2 feet 6 inches, as prayed for ?

3) Whether the plaintif is entitled for permanent injunction

restraining the defendants from interfering with his usage

of the plaint-B schedule channel, as prayed for ?

4) To what relief?

5. On behalf of the plaintiff, P.Ws.1 to 3 are examined and Exs.A1 to A-7 and Ex.X1 are marked. On behalf of defendants, Dw.1 is examined and Exs.B-1 to B-3 are marked.

6. Heard learned counsel for both the parties and perused the written arguments filed on behalf of the defendants and other material on record.

7. ISSUE No.1:- The case of the plaintiff is that he is the owner of items 1 and 2 of the plaint 'A' schedule, that there was channel on the eastern side of item No.2 of the plaint 'A' schedule for discharging the rain and drain water from item No.1 through the item No.2 of the plaint 'A' schedule into the said channel, that the defendants highhandedly closed the channel and denied right of the plaintiff. Therefore, he seeks to declare his right over the plaint 'B' schedule channel apart from other reliefs. On the other hand, defendants contended that the plaint 'B' schedule channel is a private channel and it is in their land, that the plaintiff has no right to use the said channel and that he has alternative source to discharge water from his land. Thus, they contended that the plaintiff is not entitled to declaration as prayed for.

O.S. No 158 of 20156

8. Admittedly, the plaintiff purchased items 1 and 2 of the plaint 'A' schedule under Ex.A.1 registered sale deed. He has been in possession of both the items. It is also not in dispute that earlier the defendants obstructed the plaintiff from discharging the excess rain water and drain water through item No.2 of the plaint 'A' schedule, and therefore the plaintiff filed OS.No.803 of 2002 on the file of this court seeking permanent injunction against the defendants and the suit was decreed. It is also not in dispute that the defendants did not prefer any appeal against the decree and Judgment passed in the said suit. As seen from Ex.A.2 certified copy of the Judgment in the said suit, the right of the plaintiff to use item No.2 of the plaint 'A' schedule to discharge the rain and drain water through item No.1 of the plaint 'A' schedule was recognized.

9. Now the plaintiff contends that plaint 'B' schedule is the plan marked channel, which connects Venkannapalem Channel and the village tank, that the purpose of selling item No.2 of the plaint 'A' schedule to the plaintiff is to drain the rain and drain water from item

No.1 through item No.2 into the plaint-B schedule channel. Apart from the oral evidence he exhibited the sale deeds, the plans and also the sale deeds of the neighbouring land owners. Ex.A.3 is the copy of the plan annexed to the certified copy of the decree in OS.No.803/2002. In this plan the existence of the plaint-B schedule channel connecting item

No.2 of the plaint-A schedule is shown. Pw.2, the Tahasildar Thotapalli

Gudur produced the village map(Ex.X-1). The Mandal Surveyor,

O.S. No 158 of 20157

T.P.Gudur who is examined as Pw.3 has stated in his chief-examination that there is a channel on the eastern side of the land bearing Survey

No.144 leading from Venkannapalem Channel which is in Survey No.143 and it flows towards north. A perusal of Ex.X-1 also shows that there is a channel in Sy.No.144 connecting the channel in Sy.No.143 and it flows towards North. So, this piece of evidence shows that there is a channel even as per the village map on the eastern side of item No.2 of the plaint 'A' schedule channel. In fact, as could be seen from the suggestions put to Pw.1, the defendants also admitted existence of the plaint 'B' schedule channel. However, it is their contention that the plaint 'B' schedule channel is in their own land and the plaintiff has no right to use it. So, now it is to be seen as to whether plaint-B schedule channel exclusively belongs to the defendants or whether the plaintiff has any right to use it.

10. Ex.A.1 is the sale deed of the plaintiff and Ex.A.4 is the sale deed of the vendor of the plaintiff. Under these two documents item

Nos.1 and 2 of the plaint 'A' schedule were sold. No doubt, as rightly pointed out by the learned counsel for the defendants, there is no reference in Exs.A.1 and A.4 conferring right on the vendees to let out the rain and drain water through item No.2 into the plaint 'B' schedule channel. Ex.A.5 is the certified copy of the sale deed of the defendants' father in respect of the land situated on the eastern side of plaint-A schedule and northern and southern side of item No.2 of the plaint-A schedule. It was executed by Kommireddy Kalavathamma. In this

O.S. No 158 of 20158

document, the eastern boundary is referred as 'irrigation channel'. So the plaint 'B' schedule is the eastern boundary of the land purchased by the defendants' father. Ex.A.6 is the certified copy of the sale deed obtained by the vendor's vendor of the plaintiff from Kalavathamma in respect of items 1 and 2 of the plaint-A schedule. As seen from these two documents, items 1 and 2 of the plaint-A schedule and the land on the eastern side of it and also on the western side of the plaint-B schedule originally belonged to Kalavathamma. Dw.1 admitted in cross- examination that in the sale deed obtained by his father, the eastern boundary is described as 'irrigation channel', that Venkannapalem

Channel is on the northern side of the land purchased by his father(it should be the southern side), that the channel on the eastern side of their land passes from Venkannapalem Channel. So, from these statements it infers that there is a public channel on the eastern side of their land. Conferring right over item No.2 of the plaint 'A' schedule under Ex.A.6 by Kalavathamma shows that she wanted to give right to the vendee to use the channel situated on the eastern side of item

No.2. If she did not intend to give such right and provide a channel connecting the plaint 'B' schedule, there is no meaning in selling item

No.2 of the plaint 'A' schedule, that too in the middle of the land sold to the defendants' father. If it is part of the land sold to defendants' father, she would have definitely created right on the channel.

11. Ex.A.7 is the certified copy of the sale deed obtained by one

Palakeerthi Jakeeraiah. It is in respect of the land on the eastern side of

O.S. No 158 of 20159

the plaint-'B' schedule. The western boundary in this document is described as the 'irrigation channel'. Dw.1, has admitted in the cross- examination that the land on the eastern side of the plaint-B schedule originally belonged to Palakeerthi Jakeeraiah. Admittedly, the 2nd defendant now owns the land owned by Jakeeraiah. In fact, Ex.B.1 plan filed by the defendant clarifies the same. Admittedly, the vendor under Ex.A.5 and Ex.A.6 and the vendor under Ex.A.7 are different.

There is the plaint-'B' schedule channel separating the two lands it is the boundary. Therefore, it can not be said that the plaint-'B' schedule is either part of the land covered by Ex.A.5 or Ex.A.7. Merely because the defendants purchased the land on either side of the plaint-'B' schedule channel, they can not contend that it is part of the land sold to them.

12. Further, Pw.3 has categorically stated in his evidence that as per Ex.X-1, the plaint-B schedule is the plan marked channel. In this regard, learned counsel for the defendants submitted that plan marked channel means only Government channel and that a Survey Number would be assigned to the Government Channel unlike Venkannapalem

Channel, which is assigned Survey No.143, that Pw.3 has categorically admitted in the cross-examination that no number was assigned to the plaint-'B' schedule channel which is Sy.No.144 and that Pw.3 further admitted that as the plaint-B schedule channel is in a patta land, no number was assigned to it and that it is a private channel.

O.S. No 158 of 201510

13. No doubt, Pw.3 has admitted in the cross-examination that the plaint-'B' schedule channel is in a patta land and it is a private channel and that no number was assigned to it. However, in the chief- examination itself, he clarified that the reason for not sub-dividing the channel in Sy.No.144 is that when the channel in any patta land is less than 20 links, no Sub-Division number would be given to it. So, this clarifies for not assigning any survey number to the plaint-'B' schedule channel. As observed supra Ex.X-1 shows the flow of water from

Venkannapalem Channel through the plaint-'B' schedule channel. The village map was prepared long back. As pointed out above the defendants purchased two items of lands on the either side of the channel from different owners. They have not stated who among the vendors formed the disputed channel. On the other hand Ex.X-1 clarifies that there is a natural course from Venkannapalem through the plaint-'B' schedule into the channel on the northern side and it has been in existence since a long time even as per the sale deeds of the year 1971. In Ex.A.3 plan the flow of water from the northern side towards south through the plaint-'B' schedule is shown. As rightly pointed out by the learned counsel for the plaintiff, in the earlier suit the defendants have not disputed Ex.A.3 plan. Ex.A.3 further clarifies that the plaint-'B' schedule is the Sub-Channel connecting No.1 channel to the

Venkannapalem Channel. As could be seen from the suggestions put to

Pw.1 even by the date of purchase the plaint-'B' schedule channel was in existence and defendants closed it and they have been raising crops.

O.S. No 158 of 201511

Except claiming that the plaint-'B' schedule is part of their land, the defendants have not filed any document showing that they purchased the plaint-'B' schedule channel also. They filed only the adangals showing their possession and enjoyment of the land, which is not in dispute. Dw.1 admitted that he has the original documents pertaining to their lands but for the reasons best known, the defendants have not filed their documents. On the other hand, the plaintiff filed the documents of the defendants. There is no reference in these documents about selling the plaint-'B' schedule to the defendants or their predecessors-in-title. Therefore, their contention that they have got exclusive right over the plaint-'B' schedule channel can not be accepted and the contention of the plaintiff that it is meant for public purpose should be accepted. No doubt, as rightly pointed out by learned counsel for the defendants there is no reference in Ex.A.1 that the water from item No.2 of the plaint-'A' schedule shall be let out through the plaint-'B' schedule. Existence of the plaint-'B' schedule channel since a long time is proved. There is no record to show whether any of the vendors of the defendants formed it. Admittedly, plaint-'B' schedule connects the main irrigation channel i.e Venkannapalem Channel and when it forms the boundary, it can not be said to be part of either

Ex.A.5 or Ex.A.7. So, the documents of the defendants are alone are sufficient to prove that the plaint-'B' schedule channel is meant for public purpose and it is not the exclusive channel of the defendants.

O.S. No 158 of 201512

14. In OS.No.803 of 2002 the defendants raised similar plea that item No.2 is meant for only irrigating item No.1 of the plaint-'A' schedule and the plaintiff has no right to discharge the excess water through the channel. In para No.9 of Ex.A.2 Judgment, it is observed that Dw.1 therein, who is also Dw.1 in this suit has admitted in his evidence that he discharges the excess water from his pond through vent on the eastern side of his land which joins the tank and similarly the plaintiff has right to discharge the excess rain and drain water into the tank through the irrigation channel. It is further observed in para

No.10 of the Judgment that the plaintiff consistently spoke that he purchased item No.2 with an intention to let out the excess water, and drain water through the A,B channel(item No.2) which joins irrigation channel No.1 at point-B and from there to Venkannapalem channel.

These observations would show that earlier also the defendants disputed the right of the plaintiff to discharge water into the plaint-B schedule channel and their contention was rejected and the plea of the plaintiff was upheld. Admittedly, they did not challenge Exs.A.2 and A.3.

So, apart from the evidence discussed above Ex.A.2 supports the right of the plaintiff and his exercise of right over the plaint-'B' schedule channel.

15. For the foregoing reasons, I am of the view that the plaintiff proved his right over the plaint-'B' schedule channel to discharge the rain, excess water and the drain water from item No.1 of the plaint-A schedule through item No.2 into the plaint-'B' schedule channel.

O.S. No 158 of 201513

Therefore, the plaintiff is entitled to the relief of declaration as prayed for. Accordingly, this issue is answered in favour of the plaintiff and against the defendants.

16. ISSUE No.2 :- The plaintiff contended that the defendants, have illegally and highhandedly removed the plaint-'B' schedule channel and in spite of the mediation and also reporting to the revenue authorities, they did not restore the channel.

17. The defendants have not disputed about the closure of the channel. They claimed that it belongs to them. However, their plea was rejected. In view of the findings on issue No.1 the plaintiff proved his right to use the plaint-'B' schedule channel. The defendants without any right can not curtail the plaintiff from exercising his right. They are bound to restore the channel. Regarding the description of item No.2 of the plaint 'A' schedule, under Ex.A1, the plaintiff purchased only 5 links width and 30 links. Even in Exs.A2 and A3 also, the same extent is referred. However, coming to this suit, he described the length as 500 links. Whatever be it, plaint 'B' schedule is adjoining item No.2 of the plaint 'A' schedule and it is from north to south. It is not even the case of the defendants that item No.2 channel was extended towards further east. So, the channel to the immediate east of existing item No.2 shall be restored. Therefore, the plaintiff is entitled for mandatory injunction for restoration of the channel, as prayed for. Accordingly, this issue is answered in favour of the plaintiff and against the defendants.

O.S. No 158 of 201514

18. ISSUE No.3:- The plaintiff seeks to restrain the defendants by way of permanent injunction from interfering with his usage of the plaint-'B' schedule channel. In view of the findings on issue No.1, the plaintiff proved his right to use the plaint-B schedule channel. The very act of the defendants in closing the 'B' schedule channel proves the interference by the defendants with the plaintiff's right. The defendants can not obstruct the plaintiff to exercise his right. Therefore, soon after restoration of the channel within the time fixed by this court, the defendants shall not interfere with the plaintiff's use of the plaint-B schedule channel. Accordingly, this issue is answered in favour of the plaintiff and against the defendants.

19. ISSUE No.4:- In view of the findings on issue Nos.1 to 3, the suit is to be decreed with costs as prayed for.

20. In the result, the suit is decreed with costs, declaring the right of the plaintiff to discharge rain water, excess water and drain water from item No.1 of the plaint-'A' schedule into the plaint-'B' schedule channel; that the defendants are hereby directed to restore the plaint-'B' schedule channel within three months from the date of the decree and if the defendants fail to do so, the plaintiff is at liberty to get it restored through process of court; and the defendants are hereby restrained, by way of permanent injunction from interfering with the plaintiff's usage of the plaint-'B' schedule channel, soon after it is restored.

O.S. No 158 of 201515

Typed to my dictation, corrected and pronounced by me in Open Court, on this the 10thday of April, 2017.

I ADDL. JUNIOR CIVIL JUDGE,

NELLORE.

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintif:-

Pw.1 : Leburu Venkata Ramana Reddy. Pw.2 : M.Pullaiah. Pw.3 : P.Srinivasulu Reddy.

For Defendant:- Dw-1:K.Rama Subbaiah.

Documents marked

For Plaintif:-

Ex.A1 : Registered sale deed dated 02.03.1986 executed by Kadhuru Venkaiah in favour of Plaintiff. Ex.A2 : Certified copy of Judgment in OS.No.803/2002 dt.18.10.2005 on the file of this court. Ex.A3 : Certified copy of decree in OS.No.803/2002 dt.18.10.2005 on the file of this court. Ex.A4 : Registration extract of the sale deed dt.24.4.1975 executed by Thammi Ramanaiah in favour of K.Venkaiah. Ex.A5 : Registration extract of the sale deed dated 12.4.1971 executed in favour of K.Seshu Reddy by K.Kalavathamma. Ex.A6 : Registration extract of sale deed dt.12.4.1971 executed in favour of Thammareddy by K.Kalavathamma. Ex.A7 : Registration extract of the sale deed dated 5.8.1994 executed in favour of Palakeerthi Jakeeraiah by Polamreddy Ramana Reddy.

For Defendants:-

Ex.B.1 : Rough plan. Ex.B.2 : Copy of 10(1) account for fasli 1420. Ex.B.3 : Copy of 10(1) account for fasli 1426.

Document Marked Through 3 rd Party : Ex.X.1 : Attested copy of the Village Map of Venkannapalem Village.

I AJCJ,

NELLORE.

O.S. No 158 of 201516

OS.239 of 20161

IN THE COURT OF THE I ADDL. JUNIOR CIVIL JUDGE, NELLORE,

SPSR NELLORE DISTRICT

Monday, this the 10th day of April, 2017

Present:- Smt.S.HEMALATHA, I Addl. Junior Civil Judge, Nellore.

O.S. No.239 of 2016

Mudamala Surendra Reddy… Plaintif

Vs.

Gaddam Srinivasulu Reddy…. Defendant

This suit coming on 3.4.2017 before me for final hearing in the presence of Sri.V.Upendra Rao, advocate for the plaintiff and of

Sri.N.Masthanaiah, advocate for the defendant, and having stood over till this day for consideration, this court delivered the following:-

:: JUDGMENT ::

This suit is filed for recovery of money based on the promissory note, dated 18.1.2014, stated to be executed by the defendant in favour of one Boiella Penchala Narasa Reddy, for Rs.1,50,000/-.

2. The averments of the plaint, in brief, are as follows. The defendant borrowed an amount of Rs.1,50,000/- on 18.1.2014 from one

Boiella Penchala Narasa Reddy, agreeing to repay the same together with interest at 24% p.a. In token thereof, he has executed promissory note in his favour on the same day. Subsequently, in spite of repeated demands, the defendant failed to repay the said amount. Penchala

Narasa Reddy transferred the suit pronote to the plaintiff on 3.9.2015, who is his son-in-law, for collection. Later, plaintiff approached the defendant, that he informed him about the transfer and demanded him

OS.239 of 20162

to pay the said amount. Thereafter, he issued cheques bearing

Nos.000511 dated 12.9.2015, 000512 dated 15.9.2015 for Rs.50,000/- each drawn on Bank of India, Vedayapalem Branch, Nellore, and cheque

No.166165 dated 12.9.2015 for Rs.50,000/- drawn on Andhra Pragathi

Grameena Bank, Vedayapalem Branch, Nellore, in favour of plaintiff.

However, they were dishonoured on 8.10.2015 as there were no sufficient funds in the account of the defendant. Later, plaintiff issued a legal notice demanding the defendant to pay the cheque amount. He received it on 29.10.2015, but failed to pay the cheque amount.

Therefore, the plaintiff filed a complaint against the defendant for the offence punishable under Section 138 of N.I. Act. As the defendant failed to repay the suit amount, the plaintiff filed this suit seeking recovery of money.

3. The defendant filed written statement denying the averments of the plaint. The contentions in the written statement, in brief, are as follows. Defendant borrowed Rs.1,50,000/- from one Boiella Penchala

Narasa Reddy on 9.8.2013 and executed a promissory note in his favour agreeing to repay the said amount with interest at 24% P.A. On 18.1.2014, the said Penchala Narasa Reddy approached the defendant and demanded him to execute a fresh promissory note stating that he lost the earlier promissory note executed by the defendant. With a bona fide belief, the defendant executed fresh promissory note. On the demand of Penchala Narasa Reddy, the defendant issued three postdated cheques for Rs.50,000/- each only towards security.

OS.239 of 20163

a) Due to heavy loss, defendant filed I.P.No.66 of 2015 on the file of the court of Hon'ble Principal Senior Civil Judge, Nellore, seeking to adjudge him as an insolvent. Penchala Narasa Reddy is shown as respondent No.10 in the I.P.. The I.P., is pending and the defendant would be declared as an insolvent. Therefore, this suit is also to be transferred to the said court. The suit debt is also shown in the said I.P, and as such, the suit is liable to be dismissed.

4. Based on the above pleadings, the following issues were settled for trial:

1)Whether the suit promissory is devoid of

consideration, and executed in the circumstances

explained by the defendant ?

2)Whether the plaintif is entitled for recovery of suit amount as prayed for?

3)To What relief?

5. On behalf of the plaintiff, Pw.1 is examined and Ex.A1 to A3 are marked. The defendant filed his affidavit in lieu of chief-examination, but did not turn up later. Therefore, his evidence was eschewed. He did not adduce any further evidence.

6. Heard and perused the material on record.

7. Issue No.1: Plaintiff stated that the defendant borrowed an amount of Rs.1,50,000/- from his father-in-law under Ex.A1, agreeing to repay the amount together with interest at 24% P.A., and that in spite of repeated demands he failed to repay it, that his father-in-law transferred the suit promissory note in favour of the plaintiff for

OS.239 of 20164

collection, that after repeated demands, the defendant issued three cheques for Rs.50,000/- each, but they were dishonoured and later, in spite of repeated demands and also issuance of Ex.A2 legal notice, the defendant failed to repay the amount, and hence, he was constrained to file this suit. On the other hand, defendant contended that he borrowed only Rs.1,50,000/- from Penchala Narasa Reddy on 9.8.2013 and executed a promissory note in his favour, that Narasa Reddy represented that the pronote was lost and obtained Ex.A1 from him and that he also took three post-dated cheques from the defendant towards security. Thus, he contended that he did not receive any consideration under Ex.A1.

8. As seen from the plea of the defendant, he admitted execution of Ex.A1 in favour of Penchala Narasa Reddy, but pleaded that it was in connection with the pronote, dated 9.8.2013, and that he did not borrow any amount under Ex.A1. When he once admits execution of

Ex.A1, presumption under Section 118 of N.I.Act shall be drawn to the effect that it is supported by consideration.

9. Now the burden is on the defendant to rebut the presumption and to prove that it was in connection with earlier transaction. Except denying the suit transaction, the defendant has not adduced any evidence to prove his defence. Having filed affidavit in lieu of chief- examination, he did not even step into witness box to prove his plea.

Further, even his plea appears to be not probable. If the pronote is lost,

OS.239 of 20165

naturally, a fresh pronote with the same date would be obtained. Here he claims to have executed fresh pronote with different date. Even, he has not produced any evidence to prove that the transaction was on 09.08.2013 but not on the date of execution of Ex.A.1.

10. On the other hand, the plaintiff has reiterated in his evidence that the defendant borrowed Rs.1,50,000/- from his father-in-law under

Ex.A.1 and executed Ex.A.1 on the same day. In his cross-examination also he has categorically denied the version of the defendant. Nothing could be elicited from him to prove the plea of the defendant. As stated supra, the defendant did not evidence step into witness box to prove his plea. His bare denial of passing of consideration is not sufficient. In this regard, it is pertinent to the refer to the judgment of the Hon'ble

Supreme Court in the case of Bharat Barrel & Drum Manufacturing

Company v. Amin Chand Pyarelal, reported in AIR 1999 SC 1008. In para 12 of the judgment, the Hon'ble Supreme Court observed as under:

“ The bare denial of the passing of consideration apparently

does not appear to be any defence. Something which is

probable has to be brought on record for getting the benefit

shifting the onus of proving to the plaintif. To disprove the

presumption, the defendant has to bring on record such

facts and circumstances upon consideration of which the

court may either believe that the consideration did not exist

or its non-existence was so probable that a prudent man

would, under the circumstances of the case, act upon the

plea that it did not exist”.

Coming to the case on hand, except taking the plea that the suit pronote is devoid of consideration, defendant did not adduced any evidence to that effect. Therefore, in view of the ratio laid down in the

OS.239 of 20166

above referred case, his bare denial is not sufficient and he ought to have adduced evidence proving his plea. In the absence of any evidence, his plea can not be accepted. Thus, he utterly failed to rebut the presumption drawn against him. The presumption thereby, transforms into a proven fact. The plaintiff thereby could prove that the suit promissory note is supported by consideration. Accordingly, this issue is answered in favour of the plaintiff and against the defendant.

11. Issue No.2:- The plaintiff has stated that in spite of repeated demands and issuance of Ex.A.2 legal notice, the defendant failed to repay the suit debt. The main plea of the defendant is that he did not receive any consideration under Ex.A.1. His plea was disbelieved in view of the findings on issue No.1. Admittedly, the defendant did not repay the amount borrowed from Penchala Narasa Reddy. As seen from

Ex.A.1, Penchala Narasa Reddy transferred Ex.A.1 to the plaintiff for collection.

12. The other contention of the defendant is that he filed IP.No.66 of 2015 seeking to adjudge him as an insolvent and that the debt due to Penchala Narasa Reddy is also shown in the IP and therefore, during the pendency of the said IP, this suit is not maintainable. I am unable to accept the said contention. Mere filing IP would not bar the plaintiff from filing the suit for recovery of money. In this regard, our Hon'ble

High Court in the case of M.Linga Murthy vs R.M.Ramadevi in

OS.239 of 20167

CRP.No.2003 of 2015 in the order dated 19.06.2015 observed as

under:

“From a reading of the provision under Section 28(2) of the

said Act, it is clear that, on making of an order of

adjudication,the whole of the property of the insolvent shall

vest in the Court or in a receiver as provided in the said

Section and shall become divisible among the creditors,and

thereafter, after adjudication, it is not open to any creditor

to commence any suit or other legal proceeding, except with

the leave of the Court and on such terms as the Court may

impose. It is clear from the said provision that Section 28(2)

comes into efect only after adjudication of the application

filed by the applicant under the provisions of the Provincial

Insolvency Act, 1920. Therefore, after adjudication of the

application filed by the applicant seeking to declare him as

insolvent and during pendency of further proceedings for

division of properties to the creditors, no creditor can

institute any suit or commence any legal proceedings

without the leave of the Court. Pendency of proceedings as

referred under Section 28(2) of the Act refers to the

pendency of proceedings subsequent to adjudication of the

application, but not on mere filing of application seeking

declaration of applicant as insolvent”.

In view of the ratio laid down in the above case, till the petitioner in the insolvency petition is declared as insolvent, there is no bar to file suit for recovery of money even without getting the permission of the court. Therefore, the said contention of the defendant is not correct.

The suit is maintainable. The plaintiff, is therefore, entitled to recover the suit amount as prayed for. Accordingly, this issue is answered in favour of the plaintiff and against the defendant.

13.ISSUE No.3 :- In view of the findings on issue Nos.1 and 2, the suit is to be decreed with costs, as prayed for.

In the result, the suit is decreed with costs, against the defendant for an amount of Rs.2,31,200/- with subsequent interest at 12% p.a.

OS.239 of 20168

from the date of suit till the date of decree and at 6% p.a. from the date of decree till realization, on Rs.1,50,000/-.

Typed to my dictation, corrected and pronounced by me in Open Court, on this the 10th day of April, 2017.

I ADDL. JUNIOR CIVIL JUDGE,

NELLORE.

APPENDIX OF EVIDENCE

Witnesses examined for

Plaintif: Defendant

P.W.1 :M.Surendra ReddyDw-1 : G.Srinivasulu Reddy.(Eschewed)

Documents marked

For Plaintif:

Ex.A1: Suit promissory note dated 18.1.2014 executed by the defendant in favour of plaintiff for Rs.1,50,000/-. Ex.A2: Office copy of legal notice dated 29.10.2015 issued by the plaintiff to the defendant. Ex.A3: Copy of complaint in CF.No.727/2015 on the file of the court of learned V Additional Judicial Magistrate of I Class, Nellore.

For Defendant: - Nil -

I AJCJ,

NLR.

O.S.No. 157 of 2015 1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE, NELLORE, SPSR

NELLORE DISTRICT.

Dated this the 14th day of September, 2016

Present: - Smt S.Hemalatha, I Addl. Junior Civil Judge, Nellore (FAC)Principal Junior Civil Judge, Nellore

O.S.No. 157 of 2015

Veguru Srinivasa Prabhu… Plaintiff

Vs

Palagani Prasanth Kumar Reddy… Defendant

This suit is coming on 12.9.2016 for final hearing before me in the presence of Smt.G.Subbalakshmi, Advocate for Plaintiff, and

Sri.E.Bhaskaraiah, Advocate for defendant, and having stood over for consideration till this day, this Court delivered the following:

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

This suit is filed for recovery of the advance amount of Rs.1 lakh paid by the plaintiff to the defendant in a sale transaction together with interest.

2. The averments of the plaint, in brief, are as follows. The defendant offered to sell an extent of 30 ankanams in survey number 60 consisting of

Madras Terraced House and ACC roofed house situated at Pedda Cherukuru

Village of Nellore Rural Mandal which is described as item no.1 in the agreement and 10 ankanams in survey number 60/2 to the plaintiff for a consideration of Rs.11,50,000/-. The plaintiff paid advance of Rs.1 lakh to the defendant. The defendant executed an agreement of sale on 14.7.2012 in favour of the plaintiff. As per the said agreement, the plaintiff

O.S.No. 157 of 2015 2

has to pay the balance of sale consideration within 2 months and 15 days that is by 1.10.2012, thereafter the defendant has to execute a regular sale deed and if the plaintiff fails to pay the balance of sale consideration, the advance paid by him stands forfeited. It is further agreed that if the defendant fails to execute sale deed, the plaintiff is at liberty to deposit the sale consideration in the court and get a sale deed. The defendant convinced the plaintiff that the property is situated within the limits of

Nellore Municipal Corporation and that the plaintiff can get a loan in any

Nationalized bank. He further represented that there are no charges and no claimants to the property agreed to be sold. The plaintiff believed the version of the defendant and entered into an agreement of sale.

(a) On inquiry, the plaintiff learnt that those two items of the property covered by the agreement are not within the limits of Nellore Municipal

Corporation and the Bank Authorities also declined to grant loan. Thus, the defendant mis-guided and mis-represented the plaintiff. The plaintiff also learnt that the defendant sold away the property covered by the agreement to 3rd parties during the subsistence of the contract. Therefore, under those circumstances, the plaintiff is not interested to purchase the property. Therefore, the plaintiff demanded the defendant to pay the advance amount received by him but the defendant evaded. There upon the plaintiff issued a legal notice on 24.9.14 demanding the defendant to pay the advance amount with interest at 24% per annum. However, the defendant refused to receive the notice. Hence, the plaintiff constrained to file this suit.

3. The defendant filed written statement admitting execution of the agreement of sale and receiving advance amount of Rs.1 lakh from the

O.S.No. 157 of 2015 3

plaintiff. However, he denied the other averments of the plaint. The contentions in the written statement in brief are as follows. The defendant got item no.1 covered by the agreement of sale under a registered sale deed dt.11.5.1992 and the 2nd item was settled by his father under a registered settlement deed dt.24.4.2010 by his father. As the defendant was in need of money, he offered to sell those 2 items to the plaintiff for

Rs.11,50,000/-. The plaintiff paid advance of Rs.1 lakh on 14.7.12 and the defendant executed an agreement of sale in favour of the plaintiff. As per the terms of agreement, the plaintiff has to pay the balance of sale consideration on or before 1.10.2012 and he has to obtain a regular sale deed from the defendant. The plaintiff was unable to secure the balance of sale consideration within the time fixed. Thus, the agreement automatically stood cancelled. It was also informed to the plaintiff. The plaintiff kept quiet for all these days and filed this suit after 2 years.

Therefore, being the defaulter the plaintiff is not entitled to seek refund of advance amount. The advance is forfeited. The legal notice issued by the plaintiff was returned in connivance with the plaintiff. There is no contract for any interest in the agreement of sale. The plaintiff has no cause of action to file this suit. The suit is, therefore, liable to be dismissed with exemplary costs.

4. Based on the above pleadings, the following issues were settled for trial:-

1) Whether the plaintiff is entitled for recovery of suit amount as prayed for ?

2) To what relief?

5. On behalf of the plaintiff, PW-1 is examined and Exs.A1 to A3 are marked. On behalf of the defendant, Dw-1 is examined but no

O.S.No. 157 of 2015 4

documentary evidence is adduced.

6. Heard learned counsel for both the parties, and perused the material on record.

7. ISSUE No.1: Plaintiff states that he entered into a contract of sale with the defendant for purchase of property for consideration of

Rs.11,50,000/-, that he paid advance of Rs.1,00,000/- to the defendant and obtained Ex.A1 from him, that at the time of execution of Ex.A1, defendant represented that the suit property is within the limits of Nellore

Municipal Corporation and the plaintifff can get loan in an Nationalized bank, that the plaintiff found that the property is not in the limits of

Municipal Corporation and he could not get a loan and in the mean while the defendant sold the property to 3rd parties during the subsistence of contract and therefore, he seeks refund of the advance amount paid by him. On the other hand, the defendant contended that as per Ex.A1 the plaintiff had to pay the balance of sale consideration on or before 01.10.2012 but the plaintiff did not pay it and therefore, the agreement stood cancelled and the amount is forfeited. Thus, he sought to dismiss the suit.

8. As seen from the respective pleadings, execution of Ex.A1 by the defendant is admitted. In his written statement the defendant also admitted receipt of advance of Rs.1,00,000/- from the plaintiff. However, coming to his evidence he has stated that he received only Rs.80,000/- from the plaintiff in Ex.A-1 it is mentioned that advance of Rs.1 lakh is paid. However such a contention contrary to the pleadings and also Ex.A- 1 can not be considered. So, by virtue of Ex.A-1, the defendant received

O.S.No. 157 of 2015 5

advance of Rs.1 lakh from the plaintiff.

9.In view of the defence raised by the defendant now the aspect to be seen is whether the plaintiff has any right to recover the advance amount or whether on account of non-payment of the balance of sale consideration within the time stipulated there under Ex.A-1 stood cancelled and whether the amount paid by the plaintiff is forfeited.

10. The plaintiff as Pw-1 has admitted in her evidence that there is a condition in Ex.A-1 that the plaintiff shall pay balance of sale consideration on or before 1.10.2012 and the defendant has to execute a sale deed in pursuance of Ex.A-1 and that if the defendant refuses to receive it, he has to deposit the amount in the court and seeks specific performance of the contract. He further admitted that if he fails to pay the balance of sale consideration, the advance paid by him shall be forefeited. However, he added that the defendant promised to arrange a loan in State bank of

Allipuram. The specific allegation of the plaintiff is that on account of the mis-representation of the defendant, he could not get a loan and therefore the balance was not paid within the said period. This pleading of the plaintiff is not specifically denied in the written statement. Therefore it is deemed to be admitted by the defendant. Thus, the plaintiff could offer explanation for non-payment of the balance of sale consideration with in the period mentioned in Ex.A-1. As such the condition in Ex.A-1 can not be interpreted strictly.

11. The allegation of the defendant is that the plaintiff was unable to secure the amount within the period agreed and therefore the agreement

O.S.No. 157 of 2015 6

stood cancelled. The defendant also claims that he informed about cancellation of the agreement to the plaint. However, admittedly the defendant has not issued any legal notice to the plaintiff intimating about cancellation of Ex.A-1. He has admitted in the cross-examination that he has not issued any legal notice informing his intention to sell the suit property to 3rd parties as he was unable to pay the balance of sale consideration. He further admitted that he has not issued any notice to the plaintiff about execution of sale deed in respect of the property covered by Ex.A-1 to 3rd parties either prior to or subsequent to the said sale transaction. If really, the defendant has bonafidies and he is ready to perform his part of contract but for the inability of the plaintiff, he would have definitely issued notice in writing to the plaintiff. He did not give any intimation to the plaintiff and he sold the property to 3rd parties. If he had issued any notice to the plaintiff demanding her to pay the balance of sale consideration and get the sale deed then he can plead that he has bonafidies and the plaintiff is at fault. Without making any such effort he simply sold the property to 3rd parties and now contends that as balance is not paid within the period mentioned in Ex.A-1 the advance amount stood forfeited. Such contention of the plaintiff is not correct. First of all his execution of sale deed in favour of 3rd parties during the subsistence of contract itself is not correct. He can not be enriched with the money of the plaintiff. Therefore, he is bound to refund the advance amount.

12. As regards, the rate of interest, when there is no contract for interest as per Section 80 of Negotiable Instruments Act, interest shall be calculated at 18% per annum from the date of agreement till realization.

Therefore the plaintiff can not claim interest at 24% per annum. It shall be

O.S.No. 157 of 2015 7

scaled down to 18% per annum. Accordingly, this issue is answered.

13. ISSUE NO.2: In view of findings on Issue No.1 , the suit is to be decreed in part with proportionate costs.

14. In the result, the suit is decreed in part with proportionate costs for an amount of Rs.1,33,789/- together with interest at 18% p.a., till realization on Rs.1,00,000/-.

Typed to my dictation, corrected and pronounced by me in the open court on this the 14th day of September 2016.

Sd/- S. Hemalatha,

I Addl. Junior Civil Judge, Nellore.

(FAC) Principal Junior Civil Judge,

Nellore.

Appendix of evidence

Witnesses examined

For Plaintiff:- PW.1: Veguru Srinivasa Prabhu. For Defendant:- DW1: P. Prasanth Kumar Reddy Exhibits marked on plaintiff side: Ex.A1: Agreement of sale dt.14.07.2012 executed by the defendant in favour of plaintiff. Ex.A2: Legal notice dt.24.09.14 got issued by the plaintiff to the defendant. Ex.A3: Unserved postal cover containing to the endorsement that the addressee refused to receive it. Ex.A4: Two Encumbrance Certificates.

on defendant's side: - NIL -

Sd/- S. Hemalatha,

I Addl. Junior Civil Judge, Nellore.

(FAC) Principal Junior Civil Judge,

Nellore.

1 R.C.C.No.4 of 2015

IN THE COURT OF THE RENT CONTROLLER -CUM-PRINCIPAL JUNIOR

CIVIL JUDGE, NELLORE, SPSR NELLORE DISTRICT.

Thursday this the 29th day of September, 2016

Present: Smt. S. Hemalatha,

I Addl. Junior Civil Judge, Nellore (FAC) Rent Controller -cum-

Principal Junior Civil Judge, Nellore.

R.C.C. No.4/2015

Chinni Vijayalakshmi

... Petitioner

Vs.

Dalichand

... Respondent

This petition coming up for final hearing before me on 28.09.2016 in the presence of Sri.V.Upendra Rao, Advocate for Petitioner and of

Sri.Malireddy.S advocate for the respondent, having stood over for consideration till this day, this Court delivered the following::

:: ORDER ::

This petition is filed under Section 8(5) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (herein after referred to as the “Rent Control

Act”) seeking permission to deposit rent into the court.

2. The averments of the petition, in brief, are as follows. RCC schedule shop room originally belonged to one Sagar Malji Genaji. He leased it out to the father-in-law of petitioner in the year 1975 on a monthly rent of

Rs.150/-. The father-in-law of petitioner started business under the name and style of 'Abhilash Pawn Brokers' and did the business till his death on 18.5.2009. Subsequently, the petitoner obtained license to run the said business in her name on 16.11.2011 and changed the name of business as 'Sneha Pawn Brokers'. The rent was enhanced from time to time and the present rent is Rs.650/-. Petitioner paid the electricity consumption charges and the rent regularly.

2 R.C.C.No.4 of 2015

a) The original owner died on 4.11.1994. Petitioner paid rents to the legal heirs of original owner. While so, on 28.3.2014, the legal heirs of the owner sold the RCC schedule shop to the respondent under a registered sale deed. The petitioner paid the rent till February 2015. When she offered the respondent to receive the rent from March 2015, he refused to receive and demanded the petitoner to vacate the shop on or before 30.4.2015 and threatened that if she fails to vacate, she will be evicted forcibly. Respondent has o right to evict the petitioner forcibly. Petitioner and his family members are depending upon the business run in the RCC schedule shop. Petitioner has no alternative shop room to run her business. As the respondent refused to receive the rent in the month of March 2015, petitioner was constrained to file this RCC seeking permission to deposit the monthly rent from the month of March 2015. Hence, this RCC.

4. Respondent filed counter admitting the ownership of Sargar Malji

Genaji to the RCC schedule shop and the sale of it by his legal heirs to the respondent. He denied the other averments of the petition. The contentions in the counter, in brief, are as follows. Since the date of purchase of the shop by the respondent, petitioner is not regularly paying rent. The rent of the RCC schedule shop is Rs.6,000/- per month, but not Rs.650/-. The petitioner is a wilful defaulter in payment of rent. She approached the court with unclean hands.

a) Respondent is aged about 80 years. He has four sons. Respondent has been doing business in gold and his sons are assisting him. The respondent requires the RCC schedule shop for his bonafide requirement.

One of his sons wanted to start the business in gold separately. Petitioner has one house and shop room. Wantonly, she filed this RCC to harass the 3 R.C.C.No.4 of 2015 respondent. There are no grounds to allow this RCC. Hence, this RCC is liable to be dismissed with exemplary costs.

4. On behalf of the petitioner, P.Ws.1 and 2 are Ex.P-1 is marked. On behalf of respondent, R.Ws.1 and 2 are examined, but no documentary evidence is adduced.

5. Heard learned counsel for both the parties and perused the material on record.

6. Admitted facts: Resopondent is the absolute owner of the RCC schedule shop. It originally belonged to one Sagar Malaji Genaji. His legal heirs sold it to the respondent. The petitioner is tenant of RCC schedule shop.

7. Now the point for consideration is:-

Whether the petitioner can be

permitted to deposit the rent at

the rate of Rs.650/- per month

from March, 2015 as prayed for ?

8. POINT: Petitioner stated that she is the tenant of the RCC schedule shop, that she has been regularly paying the rent, but the respondent, who purchased the RCC schedule shop from the original owner, refused to receive the rent from March 2015 and demanded the petitioner to vacate the RCC schedule shop. Therefore, she stated to have filed this RCC seeking permission to deposit the rent. On the other hand the respondent contended that the quantum of rent is not correct, it is Rs.6,000/-, but not Rs.650/- and that petitioner did not pay the rent regularly and that the respondent also requires the RCC schedule shop for his bonafide requirement. Thus, the respondent sought to dismiss the RCC.

4 R.C.C.No.4 of 2015

9. In the evidence of both the parties and also during arguments, much emphasis has been laid about the quantum of rent, payment of rent by the petitioner and the bonafide requirement of the respondent. Those aspects can not be dealt with in this RCC. Irrespective of the pleas raised by both the parties, at the first instance it has to be seen whether the petitioner has complied with the mandatory requirements under section 8 of the Rent

Control Act.

10. As per sub section (2) of Section 8, of the said Act, if the landlord refuses or evades to receive the rent, the tenant may by notice in writing require the landlord to specify within 10 days of receipt of the notice, a bank to which the rent may be deposited to the credit of the land lord. Under Sub

Section 3, if the landlord specifies the bank account number the rent shall be deposited. If it is not specified, the tenant shall remit the rent through money order and if it is also not accepted then the tenant has to invoke Sub-

Section (5) of Section 8 of Rent Control Act, by filing the RCC seeking permission to depoist the rent.

11. In the instant case, there is no whisper about the petitioner following the said procedure. She simply stated that she offered rent to the respondent, but he did not receive it. She Ex.P1, the electricty bill and receipt only. Even in the evidence also, P.W.1 has stated that she has not issued any notice to the respondent prior to filing this RCC. Thus, as required under Sub Section-2 of Section-8 of the Rent Control Act, the petitioner has not given any notice in writing to the respondent requesting him to furnish the bank account number and no money order is sent. Thus, the mandatory requirements of Sub-Sections (2) to (4) of Section 8 of Rent Control Act, are 5 R.C.C.No.4 of 2015 not complied. Thus, in the absence of complaince with the said provisions petitioner can not invoke Section-8(5) of the Rent Control Act.

12. In this regard, our Hon'ble High Court of A.P in the case of

M.Naveed Basha and Another Vs. G.Md.Ismail reported in 2007 (4) ALT 844, in a similar situation wherein the mandatory requirements of Sub-

Sections (2) to (4) of Section 8 are not complied, held that permission can not be given to the tenant to deposit the rent under 8(5) of the Rent Control

Act.

13. Further the Hon'ble Supreme Court in the similar situation arose in the case of E. Palanisamy Vs Palanisamy (D) by LRs & Ors., reported in 2011 (1) MWN (Civil) 754 held that mere refusal of the landlord to receive rent cannot justify the action of the tenant in straightaway invoking Section 8 (5) of the Act without following the procedure contained in the earlier sub- sections i.e. sub-sections (2), (3) and (4) of Section 8.

14. In view of the ratio laid down in the above cases, this RCC under section 8 (5) can not be straight away invoked without following the procedure prescribed. Thus, this RCC is liable to be dismissed. Accordingly, this point is answered in favour of the respondent and against the petitioner.

15. In the result, this RCC is dismissed with costs.

Typed to my dictation, corrected and pronounced by me in the open court on this the 29th day of Septembers, 2016.

Sd/- S. Hemalatha,

I Addl. Junior Civil Judge, Nellore.

(FAC)Rent Controller – cum -

Principal Junior Civil Judge,

Nellore.

6 R.C.C.No.4 of 2015

APPENDIX OF EVIDENCE

Witnesses examined

For Petitioner:-

Pw.1 : Chinni Vijayalakshmi Pw.2 : Anumalasetty Appa Rao

For Respondent:-

Rw.1: Dalichand Rw.2: Thana Ram

Documents marked

For Petitioner:-

Ex.P.1: Original Electricity demand notices and its receipts dated February and March, 2015(2 in No.)

For Respondent: - Nil.

Sd/- S. Hemalatha,

I Addl. Junior Civil Judge,Nellore.

(FAC)Rent Controller – cum -

Principal Junior Civil Judge,

Nellore.