Sri. S. Prasad

S.C.123 of 2019 1 II Addl. Sessions Court, Hindupur

IN THE COURT OF THE II ADDITIONAL SESSIONS JUDGE :

HINDUPUR.

PRESENT:- Sri S. Prasad, II Addl. Sessions Judge, Hindupur

Wednesday, the 12 th day of January, 2022

SESSIONS CASE No.123 of 2019

Name of the Complainant :State rep. by Inspector of Police, Puttaparthy Rural Circle.

Description of the accused:1.Yandlapalli Chennakesavulu @ Kesava, age 35 years, s/o. Venkataramudu (A.1), 2.Yandlapalli Nagesh, age 32 years, s/o. Venkataramudu (A.2) 3.Yandlapalli Punyavathi, age 28 years, W/o. Nagesh (A.3) 4.Yandlapalli Ramachandra, age 33 years, s/o. Venkataramudu (A.4),

All are of Bonthalapalli Village, Puttaparthy Mandal.

Offence:U/s.302 r/w 34 of IPC

Plea of accused :Not guilty

Finding of the Judge :Not guilty

Sentence or order In the result, the accused No.1. Yandlapali Chennakesavulu, A.2.Yandla- : palli Nagesh, A.3.Yandlapalli Punyavathi, and A.4.Yandlapalli Ramachandra, are found not guilty, for the charge punishable U/Sec.302 r/w 34 of IPC. Accordingly, they are acquitted under section 235 (1) of Cr.P.C for the said charge. The bail bonds of the accused shall stand cancelled after expiring of appeal time.

The Office is directed to send the material objects i.e., MO.1 to MO.4, to the committal Court. The committal Court, is further directed to dispose the said material objects, after expiring of appeal time, as per rule.

Cr. No. and P.S concerned :53/2016 of Puttaparthy Rural P.S.

S.C.123 of 2019 2 II Addl. Sessions Court, Hindupur

This sessions case coming on 11.01.2022, for final hearing

before me in the presence of Sri E.Rajasekahr, Addl. Public Prosecutor

for the State and of Sri C.Ramachandra Reddy and Sri.K.Sada Siva Reddy, Advocates on behalf of accused, upon hearing both sides and upon perusal of the available material on record, this court delivered the following:-

J U D G M E N T

1. The case of the prosecution as set out in the charge sheet, is briefly as follows:-

The Inspector of Police, Puttaparthy Rural Circle, has laid a charge sheet, against the accused 4 in number, namely A.1.Yandlapali

Chennakesavulu, A.2.Yandlapalli Nagesh, A.3.Yandlapalli Punyavathi, and A.4.Yandlapalli Ramachandra, in Cr.No.53/2016, for the offence punishable U/Sec.302 r/w 34 of Indian Penal Code, alleging that on 13.06.2016, at about 4.00 pm, at Bonthalapalli Village fields,

Puttaparthy Mandal, there was a dispute between Kolala

Chennakesavulu (herein after referred as deceased) and A.3.

Punyavathi, alleging that they had illicit intimacy.

A.3.Punvathi, being the wife of A.2.Nagesh, they hatched a plan to do away the life of Kolala Chennakesavulu, along with A.1 and A.4.

They all assaulted the deceased, by means of stones and caused severe injuries and that the injured was shifted to Government General

Hospital, Kurnool, where he succumbed to injuries while undergoing treatment on 19.10.2016.

Based on the complaint of Pw.1.Kola Erikalamma, the mother of deceased, a case in Cr.No.53/2016 U/Sec. 307, 326 r/w 34 of Indian

Penal Code, was registered against the accused initially, and issued first information report. After receiving the death intimation of

S.C.123 of 2019 3 II Addl. Sessions Court, Hindupur deceased-Kolala Chennakesavulu, the section of law altered from

U/Sec.307, 326 r/w 34 Indian Penal Code to U/Sec. 302 r/w 34 of

Indian Penal Code and issued altered first information report to all concerned. PW.12.V.Sreedhar, the Inspector of Police, took up investigation, that seized blood stained clothes of deceased, under cover of police proceedings, that held inquest over the dead body of

Chennakesavulu, that forwarded the dead body to autopsy, that he secured the presence of witnesses and recorded their statements.

It is further case of the prosecution that on 22.10.2016, at about 09.00 a.m., the Investigation Officer, arrested the accused, under cover of mahazar, in the presence of PW.9.B.Venkatesulu and

LW.18.C.Babaiah and sent him to Court for remand along with remand report.

Pw.10.Dr. Y.K.C.Rangaiah, Asst. Professor, held autopsy over the dead body of Chennakesavulu and issued postmortem certificate. After receiving F.S.L report and after completing the investigation, PW.12.V.

Sreedhar, Investigation Officer, has laid charge sheet against the accused.

2. The learned Judl. I Class Magistrate, Puttaparthy, register the case as PRC No.23/2018 and committed the same to the Sessions

Court, Ananthapuram. The Sessions Court, numbered said PRC as SC

No.123/2019 and made over the same, to this Court, for disposal in accordance with law.

3. The accused were examined under section 228 of Cr.P.C with regard to accusation made against them. They denied the accusation.

S.C.123 of 2019 4 II Addl. Sessions Court, Hindupur

After hearing prosecution and defence, charge U/secs.302 r/w 45 IPC, framed against the accused, read over and explained to them, in their language, for which, they pleaded not guilty and claimed to be tried.

4. In its attempt, to prove the complicity of the accused, the prosecution, has examined, as many as 12 witnesses as P.Ws.1 to

PW.12 and got marked Exs.P.1 to P.19 documents and MO.1 to MO.4.

The evidence of LW.3.Koala Krishnaiah, LW.4.Kolla Chennakesuvulu,

LW.5.M.Yerradoddi, LW.10.C.Konappa, LW.12.K.Venkatesh, LW.15-

J.Chendrayudu, Lw.17.C.Babaiah, was given up by the prosecution.

5. After closing the prosecution evidence, the accused were examined U/s 313 Cr.P.C with regard to the incriminating material appeared against them, in the evidence of prosecution witnesses. They denied the evidence. They reported no defence evidence, on their behalf.

6. Heard the arguments of the learned Addl. Public Prosecutor and the Defence Counsel.

7. Now the points that would arise for determination are?

(1) Whether the accused No.1 Yandlapali

Chennakesavulu, A.2.Yandlapalli Nagesh, A.3.Yandlapalli

Punyavathi, and A.4.Yandlapalli Ramachandra, committed

the murder of Kolala Chennakesavulu, by means of stones

on 13.06.2016 at about 4.00 PM, as alleged by the

prosecution ?

(2) Whether, the prosecution, has proved the guilt of

accused Nos.1 to 4, for the charge punishable u/sec. 302

r/w 34 of IPC, beyond reasonable doubt?

S.C.123 of 2019 5 II Addl. Sessions Court, Hindupur

8.POINTS 1 & 2:-

It is the case of the prosecution that on 13.06.2016 at about 4.00 pm., at Bonthalapalli Village fields, all the accused allegedly attacked the deceased Kolala Chennakesavulu, by means of stones, alleging that the deceased having illegal intimacy with A.3.Punyavathi.

Based on the complaint of PW.1.Kolala Erikalamma, mother of deceased, a case in Cr.No.53/2016, U/Sec. 307, 326 r/w 34 IPC was registered against the accused initially and issued first information report.

It is further case of the prosecution that the injured Kolala

Chennakesavulu, shifted to the Government Hospital, Kurnool, for treatment, where he succumbed to injuries on 19.10.2016, while undergoing treatment and the second of law was altered from

U/Sec.307, 326 r/w 34 of IPC to Sec. 302 r/w 34 of IPC and issued altered first information report.

9. On the other hand, the defence of the accused is of total denial.

10. PW.1.Kola Yerikalamma, the mother of deceased Kolala

Chennakesavulu. It is she who set the criminal law into motion by presenting a complaint Ex.P.1, to the police about her son Kolala

Chennakesavulu, sustained injuries in the alleged incident on 14.06.2006.

11. She has deposed before the Court, on oath that she and her son Kolala Chennakesavulu ( deceased) were residing under one roof.

Her son was living by doing cooly. She came to know through Sailaja, that her son Kolala Chennakesavulu was lying with injuries, in the

S.C.123 of 2019 6 II Addl. Sessions Court, Hindupur fields of Chiteswamy Narasimhulu. After receiving the information, she rushed to the spot and shifted her son to Government Hospital,

Puttparthy and from there to Government Hospital, Ananthapuram and from there, to Government General Hospital, Kurnool, for treatment.

Her son died, while undergoing treatment in the hospital. She lodged

Ex.P.1 Report to the police. She has affixed her thumb impression in

Ex.P.1 report. She further deposed that after death of her son, she gave another report, to the police under Ex.P.2.

12. According to PW.1, her son Kolala Chennakesavulu, died while undergoing treatment n the hospital with injuries.

13. The witness has stated in her examination in chief that she do not know the contents of Ex.P.1 and Ex.P.2 reports.

14. In this regard, the learned Addl. Public Prosecutor, cross- examined the witness. The witness has disowned her earlier statement, recorded by the police, as in Ex.P.3 161 Cr.P.C statement, stating that her son Chennakesavulu, had illicit intimacy with A.3-

Punyavathi and that all the accused assaulted her son on 13.06.2016 at 4.00 pm., at Bonthalapalli village fields, and caused injuries and that her son died while undergoing treatment in the Hospital, Kurnool.

15. The oral testimony of PW.1, is not corroborating the contents of her earlier reports Ex.P.1 and Ex.P.2 and the statement under Ex.P.3.

However, the oral testimony of PW.1, is not reliable and support the prosecution, to connect the accused, the crime on hand that they held responsible for the death of Kolala Chennakesavulu.

S.C.123 of 2019 7 II Addl. Sessions Court, Hindupur

16. PW.2.K.Adinarayana, who is none other than the younger brother of the deceased Chennakesavulu. He has reiterated the same version, as stated by PW.1 in his examination in chief.

17. The learned Addl. Public Prosecutor, cross-examined the witness.

The witness has disowned his earlier statement, recorded by the police, as in Ex.P.4 161 Cr.P.C statement, that all the accused assaulted his younger brother Chennakesavulu, and caused injuries and that his younger brother died while undergoing treatment in the

Government Hospital, Kurnool.

18. Admittedly, Pw.1 and PW.2, are not the eye witness to the occurrence. The evidence of PW.1 and PW.2, is not support the prosecution version, to connect the accused, the crime on hand.

19. Pw.3.M.Akkulappa, is the neighbor of the deceased. He has deposed that he did not know the reason or cause of death of

Chennakesavulu. This witness did not say anything against the accused. In this regard, the learned Addl. Public Prosecutor, cross- examined the witness. The witness has disowned his earlier statement, recorded by the police, as in Ex.P.5 161 Cr.P.C statement, that that all the accused assaulted Chennakesavulu on 13.06.2016 at 4.00 PM and he witness the said incident.

20. The oral testimony of PW.3, coupled with Ex.P.5, is not corroborating the prosecution version in any manner. However, this witness, turned hostile to the prosecution version. As such, the

S.C.123 of 2019 8 II Addl. Sessions Court, Hindupur evidence of PW.3, is no way helpful to the prosecution, to connect the accused, to the case on hand.

21. PW.4.B.Sailaja, who said to have given an information, about the death of deceased Chennakesavulu to Pw.1. She has deposed that about six years ago, Chennakesavulu died. She does not know the reason or cause of his death. This witness has not stated anything against the accused. In this regard, the learned Addl. Public

Prosecutor, cross-examined the witness. The witness has disowned her earlier statement, recorded by the police, as in Ex.P.6-161 Cr.P.C statement, that all the accused assaulted the deceased-

Chennakesavulu, by means of stones and caused injuries and she witnessed the said incident and injured died while undergoing treatment in the hospital.

22. The oral testimony of Pw.4, is not corroborating the prosecution version that about in killing of the deceased by the accused. As such, no weight would be given to this witness.

23. PW.5.Bala Narasimhudu and PW.6.M.Alla Bakash. Their say

before the Court in one voice that they do not know anything about

the incident. In this regard, the learned Addl. Public Prosecutor, cross- examined these witnesses. They disowned their earlier statements recorded by the police as in Ex.P.7 and Ex.P.8 respectively that there was an illicit intimacy between the deceased and A.4.Punyavathi, due to that accused, killed the Chennakesavulu.

S.C.123 of 2019 9 II Addl. Sessions Court, Hindupur

24. The evidence of PW.5 and PW.6, is no way helpful to the prosecution in any manner. As such, no weight would be given to these witnesses.

25. PW.7.K.Obulesu, in whose presence the material objects seized on 15.10.2016, under observation seizure mahazar Ex.P.9. He has deposed that the police not observed the scene of offence and seized anything in his presence on 15.10.2016, under Ex.P.9. However, the witness having admitted his signature, in observation-cum- seizure mahazar-Ex.P.9.

26. The learned Addl. Public Prosecution cross-examined this witness. The witness having denied that the police seized the material objects and observed the scene of offnce in his presence.

27. The oral testimony of PW.7, is not corroborating the contents of Ex.P.9, in all respects. As such, the evidence of Pw.7, is no way helpful to the prosecution version, in any manner.

28. PW.8. A.Venkatesulu, in whose presence, the police held inquest over the dead body of Chennakesavulu on 19.10.2016. He has deposed that he along with Kunchepu Venkatesh and J.Chandrayudu, were present at the time of inquest, held over the dead body of

Chennakesavulu on 19.10.2016. Accordingly, an inquest report was drafted, in which he signed. Ex.P.10 is Inquest report.

29. According to PW.8, he was present at the time of inquest over the dead body of Chennakesavulu on 19.10.216. His evidence is reliable and support the prosecution version.

S.C.123 of 2019 10 II Addl. Sessions Court, Hindupur

30. Ex.P.9. B.Venkatesulu, in whose presence, the police arrested the accused and recorded the confessional statement of accused under

Ex.P.11. He has deposed that the police never arrested the accused in his presence and recorded the confessional-cum-arrest mahazar.

However, this witness has admitted his signature in Ex.P.11, but disowned its contents.

31. In this regard, the learned Addl. Public Prosecutor, cross- examined this witness. The witness having denied that he was present at the time of arrest of the accused and recorded the confessional statement-cum-arrest mahazar. The oral testimony of PW.9, is not corroborating the contents of Ex.P11, that the police arrested the accused and recorded the confessional statement of accused, about the commission of offence. As such, no weight would be given to this witness.

32. PW.10. Dr.Y.K.C.Rangaiah, Asst. Professor, who conducted autopsy over the dead body of Chennakesavulu, on 19.10.2016. He has deposed that he has conducted, postmortem examination, on the dead body of Chennakesavulu and found external injuries on the dead body. Accordingly, he issued Ex.P.12.Postmortem Certificate. He opined that the deceased would have died due to multiple injuries.

33. The oral testimony of PW.10, coupled with Ex.P.12 Postmortem

Certificate, would reveal that the injured, died due to multiple injuries.

However, the evidence of Pw.10, is support the prosecution version to the extent that he conducted postmortem examination over the dead body of deceased under Ex.P.12 Postmortem Certificate.

S.C.123 of 2019 11 II Addl. Sessions Court, Hindupur

34. PW.11.R.Dhanunjaya Babu, Asst. Sub-Inspector of Police, who has recorded, the statement of PW.1 and registered the case under

Ex.P.13 First Information Report. He has deposed that based on the written report of PW.1.Yerikalamma, he registered, the case as

Cr.No.53/2016 U/Sec.307 r/w 34 of IPC and issued Ex.P.13 First

Information Report.

35. There is no dispute that Pw.11, has registered the crime under

Ex.P.13, based on the written report of PW.1 on 14.10.2016.

36. The evidence of PW.11, was disputed during the cross- examination. The witness having admitted in his cross-examination that the incident occurred on 13.10.2016 at 4.00 pm.

Pw.1.Yerikalamma, has presented a written report on 14.10.2016. At column No.8 in Ex.P.13 First Information Report, the reason for delay is shown as “no delay”.

37. This piece of evidence of Pw.11, would reveal that there was a delay of 24 hours, in registering the crime. In this regard, there is no explanation has been offered by the prosecution, for the delay of 24 hours, in lodging the first information report, which leads to doubt.

38. In Thuliyakali Vs. State of Tamilnadu, AIR 1973 SC 501.

The Honorable Supreme Court observed that:- “The delay must be satisfactorily explained. If

delay, has not been satisfactorily explained and

there is a possibility of embellishment in the

prosecution version, on the account of such delay,

the same may be fatal”.

S.C.123 of 2019 12 II Addl. Sessions Court, Hindupur

39. PW.12.V.Sreedhar, the Investigating Officer. He has deposed about his investigation, conducting of inquest, seizure of material objects, arrest of the accused and lying charge sheet, after completing the investigation.

40. The evidence of PW.12 would reveal that on 22.10.2016 at about 7.45 AM., he received the information about absconding accused, he secured the presence of PW.9. B.Venkatesulu, and

Lw.17.Babaiah, and also Women P.C-Dhanalakshmi, reached

Kambarapalli- Bonthalapalli Road, in two Police Jeeps, where he apprehended, the accused and on interrogation, they confessed about the offence and accordingly he recorded the confessional statement of accused, under Ex.P.18. After recording the confessional statement, he arrested the accused and sent them, to the Court, for remand, along with a remand report.

41. This piece of evidence of PW.12, would reveal that accused, said to have confessed the commission of offence to the Police Officer, while they were in police custody.

42. As stated earlier, PW.9.D.Venkatesulu, has stated in his examination in chief, that police never arrested the accused, in his presence or recorded their confessional statement, in his presence.

43. The oral testimony of PW.12, is not corroborating, the oral testimony of Pw.9, the manner which the Investigating Officer, arrested the accused and recorded the alleged confessional statement of accused, under Ex.P.18.

S.C.123 of 2019 13 II Addl. Sessions Court, Hindupur

44. It is settled law that, no confession to Police Officer, shall be proved as against a person of accused of any offence.

45. Under Section 25 of Indian Evidence Act, provides that the confession, made by the accused, to the police officer, cannot be proved, against the accused. Therefore, the evidence of PW.12, that confession made to police officer, by accused, is inadmissible in evidence, as contemplated U/Sec. 25 of Indian Evidence Act.

46. In Kanda Padayachi Vs.State of Tamilnadu, AIR 1972 SC

66. The Hon’ble Supreme Court held that;

“Confession made to a police officer, under Sec.25,

is not relevant”.

47. In Ram Singh Vs. Sonia, AIR 2007 SC 1218. The Hon’ble

Supreme Court, held that;

“No confession made by any person, while he is

in custody of a police officer, shall be proved against

him, it is not made in the immediate presenting a

Magistrate”.

48. The evidence of PW.12, would reveal further that he has seized

MO.1.Shirt, MO.2 Banian and MO.3.Towel, under cover of police proceedings under Ex.P.15. His evidence further shows, he seized

MO.4. Two boulders, under cover of Ex.P.17.Seizure Mahaazar, in the presence of Pw.7.Obulesu and LW.12.Chalapathi. The evidence of

PW.12, is not corroborated with any other evidence i.e., PW.7.

Obulesu, that he has seized, the said material objects under Ex.P.15.

S.C.123 of 2019 14 II Addl. Sessions Court, Hindupur

Therefore, the seizure of material objects by PW.12, in the presence of

Mahazar witness, is not trustworthy.

49. A perusal of Ex.P.17, the Investigation Officer, has seized two stones, in the presence of Pw.7.Obulesu and LW.12.Chalapathi. In this regard, PW.7.Obulesu, has stated in his examination in chief that the police, not seized any material objects, in his presence on 15.10.2016, under Ex.P.17.

50. The oral testimony of PW.7, is not corroborating the evidence of PW.12, the manner in which the Investigating Officer, has seized

MO.4. Therefore, the evidence of PW.12, that he seized MO.4, in the presence of PW.7, is not trust worthy. As such, the seizure of

MO.4.Two Boulders, is doubtful.

51. As discussed earlier, there is no clinching or cogent evidence on record, to show that the accused herein, assaulted Kolala

Chennakesavulu ( deceased), by means of stones and caused bleeding injuries, as a result, he died while undergoing treatment in the hospital, as alleged by the prosecution.

52. The above foregoing discussion, this court is of the considered opinion that the prosecution, has failed to establish the guilt of the accused No.1 to 4, for the offence, punishable U/Secs.302 r/w 34 of

IPC, beyond all reasonable doubt. As such, the accused, are entitled for acquittal. Accordingly, the points are answered.

53. In the result, the accused No.1. Yandlapali Chennakesavulu,

A.2.Yandla- palli Nagesh, A.3.Yandlapalli Punyavathi, and

S.C.123 of 2019 15 II Addl. Sessions Court, Hindupur

A.4.Yandlapalli Ramachandra, are found not guilty, for the charge punishable U/Sec.302 r/w 34 of IPC. Accordingly, they are acquitted under section 235 (1) of Cr.P.C for the said charge. The bail bonds of the accused shall stand cancelled after expiring of appeal time.

The Office is directed to send the material objects i.e., MO.1 to

MO.5, to the committal Court. The committal Court, is further directed to dispose the said material objects, after expiring of appeal time, as per rule.

Dictated to the Stenographer and transcribed by him, corrected

and pronounced by me in open Court, this the 12 thday of January, 2022.

II Additional Sessions Judge,

Hindupur.

Appendix of evidence

Witnesses examined for

Prosecution Defence

PW.1 : Kola Erikalamma -Nil

PW.2 : Kola Adinarayana

PW.3 : M.Akkulappa

PW.4 : B.Sailaja

PW.5 : B.Narasimhudu

PW.6 : M.Allabakash

PW.7 : K.Obulesu

PW.8 : A.Venkatesulu

PW.9 : B.Venkatesulu

PW.10: Dr.Y.K.C.Rangaiah,

PW.11.R.Dhanunjaya Babu

Pw.12: V.Sreedhar

S.C.123 of 2019 16 II Addl. Sessions Court, Hindupur

Exhibits marked for Prosecution

Ex.P.1 : Report of PW.1

Ex.P.2 : Another report of PW.1

Ex.P.3 : U/Sec. 161 (3) Cr.P.C statement of PW.1

Ex.P.4 : U/Sec. 161 (3) Cr.P.C statement of PW.2

Ex.P.5 : U/Sec. 161 (3) Cr.P.C statement of PW.3

Ex.P.6 : U/Sec. 161 (3) Cr.P.C statement of PW.4

Ex.P.7 : U/Sec. 161 (3) Cr.P.C statement of PW.5

Ex.P.8 : U/Sec. 161 (3) Cr.P.C statement of PW.6

Ex.P.9 : Obsevation-cum-seizuremahazarnama dated 15.10.2016

Ex.P.10: Inquest Report

Ex.P.11: Confessional-cum-arrest mahazar

Ex.P.12: Postmortem Certificate

Ex.P.13: Original First Information Report

Ex.P.14: Altered First Information Report

Ex.P.15: Police Proceedings

Ex.P.16: Rough Sketch

Ex.P.17: Seizure Mahazarnama

Ex.P.18: Confessional statement

Ex.P.19: F.S.L Report

Exhibits marked for Defence:

-Nil-

Mos. Marked:

MO.1: Shirt MO.2: Banian MO.3: Towel MO.4: Two Boulders

II Addl. Sessions Judge,

Hindupur.

O.P.70/2018 1 MACT, Hindupur

THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

BEFORE THE II ADDL. DISTRICT JUDGE, HINDUPUR.

Present: Sri S. Prasad,Chairman,

MACT -Cum- II Addl. District Judge

Monday, the 17 thday of January, 2022

Original Petition No.70/2018

Between:

1. N.Rupa w/o. Eswar Naidu @ Eswarappa, age 30 years, ( wife of the deceased)

2. N.Kruthan s/o. Eswar Naidu @ Eswarappa, age 12 years, ( son of the deceased)

3. N.Krushitha d/o Eswar Naidu @ Eswarappa, age 10 years, ( daughter of the deceased )

Petitioners 2 and 3 are minors, represented by Petitioners. petitioner No.1, Mother as natural guardian.

4. Rangalakshmamma w/o. Nanjundappa, age 65 years, ( Mother of deceased)

All are residents of D.No.2-25, Bullasamudram Village, Madakasira Mandal, Ananthapuram Dist.

Vs.

1. Mohidali Mohammed s/o Mohammed, Age 44 years, R/o PVs Building, Kalai Village, Surathjkal Post, Mangalore Ta. Karnataka State. (Driver)

2. G.Subba Reddy, s/o Not-known, Executive Director, Arunachala Logistics Pvt. Ltd. #CPX1/154-B-19, AL Ameen City Towers, Chengala Post, Cherkala Tq. Kasaragod Dist. Respondents Kerala State. Now residing at G.Subba Reddy, Executive Director, Arunachala Logistics Pvt. Ltd., House No.8-2-1/1/3, AVTAR NIVAS, Sreenagar Colony, Main road, Punjagutta, Hyderabad. (Owner)

3. The India Assurance Company Limited, Rep. by its Branch Manager, Branch Office, Hindupur Town (Post) Ananthapuram Dist. (Insurer)

O.P.70/2018 2 MACT, Hindupur

This petition coming on 07.01.2022 for final hearing before me in the presence of Sri L.Veerasena, Advocate for the petitioners and of Sri H.Narasimha Murthy, Advocate for R.1, Sri K.C.Raghunatha Reddy, Advocate for R.3, R.2 set exparte, and on perusing the material papers on record and the matter having stood over for consideration, this Tribunal passed the following:

O R D E R

This claim petition, filed by the claimants U/Secs.140 & 166 of the

Motor Vehicles Act, 1988 and Rule 455 of A.P. Motor Vehicles Rules, 1989, seeking the relief, to award compensation of Rs.14,00,000/- (Rupees fourteen lakhs only) and for costs.

2. The brief averments of the claim petition are as follows:-

On 09.04.2017, at abut 4.30 PM., the deceased Eswar Naidu, being rider, and pillion raider- Hanumantarayappa, were coming on Star City

Motor Bike bearing No.AP02-BR-3569, when they reached near New

Colony, on Penukonda-Madakasira State Highway road of Penukonda

Mandal, by that time the driver of Lorry bearing No.K.L.14.R.9382, who had driven the said Lorry, in a rash and negligent manner, dashed against the rider of Motor bike. As a result, the deceased who was raider of motor cycle, sustained severe head injuries and died on the spot. The pillion raider, sustained fracture.

It is averred that based on complaint of E.Hanumantharayappa, a case in Cr.No.45/2017, U/Sec.337 & 304-A IPC, was registered against the driver of the crime Lorry.

It is averred that Eswar Naidu (deceased), was 35 years old, who was running Nandeeswara Restaurant, that doing rice business besides

O.P.70/2018 3 MACT, Hindupur agriculture and earning Rs.10,000/- per month, at the time of accident.

All the claimants are depending on the earnings of the Eswar Naidu, being his wife, children and mother.

The 1st respondent, is being the Driver, 2nd respondent, is being the Owner and third respondent is being the insurer of the crime vehicle.

All of them jointly and severally liable to pay the compensation to the claimants. Having no other go, forcing the claimants, filed the present claim petition.

3. The respondent No.2, was remained exparte.

4. The 1st respondent and 3rd respondents, have resisted the petition, and filed separate counters. The brief averments of the counter of R1, are as follows:-

It is contended that there is no negligence on the part of the respondent No.1 in causing the accident. In fact the accident occurred, due to negligence on the part of rider of Motor cycle i.e., deceased Eswar

Naidu. On the date of the accident, the offending vehicle had insurance policy. The driver of crime vehicle having valid driving licence. The

Insurance policy of crime vehicle was in force. The 3rd respondent

Insurance Company, is liable to pay the compensation. The compensation claimed by the claimants, highly excessive. He prayed the court to dismiss the petition.

5. The brief averments of the written statement of R.3, are as follows:-

O.P.70/2018 4 MACT, Hindupur

It is contended that the driver of the crime vehicle, had no valid driving licence, to drive the crime vehicle at the time of accident. The crime vehicle did not possess a valid records i.e., Registration Certificate,

Fitness Certificate and permit, at the time of accident. The driver and owner of crime vehicle, held responsible to pay compensation to the claimants. It is contended that the owner and insurer of the motor cycle, are proper and necessary parties. The claim of the claimants, is highly excessive and inarbitant. The accident occurred due to negligence on the part of the deceased only and on that ground the 3rd respondent, is not liable to pay compensation. The other allegations, made in the claim petition are denied and prayed the court, to dismiss the claim petition.

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

1. Whether the accident had occurred on 09.04.2017 at about 4-30 pm., on Penukonda-Madakasira Road, near New Colony, due to rash and negligent driving of the driver of the crime Lorry bearing No.K.L.14.R.9382 and caused the death of deceased?

2. Whether the driver of the offending vehicle bearing No. K.L.14.R.9382 was possessed a valid and effective driving licence, to drive the crime vehicle and the vehicle had valid registration, Fitness and permit as on the date of accident, as set out in written statement?

3. Whether the petitioners are entitled compensation, as prayed for. If so, to what extent and from which of the respondent?

4. To what relief ?

7. On behalf of the claimants, the 1st claimant, Rupa, the wife of the deceased, Eswar Naidu, examinedas PW.1 and one

O.P.70/2018 5 MACT, Hindupur

Hanumantharayappa, examined as PW.2 and got marked Exs.A.1 to A.5 documents. On the other hand, on behalf of the respondents, none were examined and no documents are marked.

8. Heard the arguments of petitioners counsel. Respondents, did not advance arguments.

9. Issue No.1 & 2 :-

It is the claim of the claimants that on 09.04.2017, at abut 4.30

PM., the deceased Eswar Naidu being rider, and pillion raider-

Hanumantarayappa, were coming on Star City Motor Bike bearing

No.AP02-BR-3569, when they reached near New Colony, on Penukonda-

Madakasira State Highway road of Penukonda Mandal, by that time the driver of Lorry bearing No.K.L.14.R.9382,wo had driven the said Lorry, in a rash and negligent manner, dashed against the rider of Motor bike. As a result, the deceased who was raider of motor cycle, sustained severe head injuries and died on the spot.

10. However, it is the contention of the 1st respondent that there is no negligence on the part of the respondent No.1 in causing the accident.

In fact the accident occurred, due to negligence on the part of rider of

Motor cycle i.e., deceased Eswar Naidu. On the date of the accident, the offending vehicle had insurance policy. The driver of crime vehicle having valid driving licence. The Insurance policy of crime vehicle was in force.

The 3rd respondent Insurance Company, is liable to pay the compensation. The compensation claimed by the claimants, highly excessive. He prayed the court to dismiss the petition.

O.P.70/2018 6 MACT, Hindupur

11. However, it is the contention of the 3rd respondent that the driver of the crime vehicle, had no valid driving licence, to drive the crime vehicle at the time of accident. The crime vehicle did not possess a valid records i.e., Registration Certificate, Fitness Certificate and permit, at the time of accident. The driver and owner of crime vehicle, held responsible to pay compensation to the claimants, that the owner and insurer of the motor cycle, are proper and necessary parties. The claim of the claimants, is highly excessive and inarbitant. The accident occurred due to negligence on the part of the deceased only and on that ground the 3rd respondent, is not liable to pay compensation and prayed the court, to dismiss the claim petition.

12. In order to substantiate the claim of the claimants, the 1st claimant, Rupa ( wife of deceased), examined as PW.1. She has filed chief affidavit, in lieu of chief examination, wherein, she has reiterated the same facts, as narrated in the claim petition. The evidence of PW.1, was disputed during the cross-examination. The witness having denied the suggestion, in her cross-examination that the accident occurred due to rash driving of her husband. The witness having denied, another suggestion that the 3rd respondent/Insurance Company, is not liable to pay compensation to the claimants. Except the said suggestions, nothing has been elicited, which render, her evidence unbelievable.

13. Admittedly, Pw.1 Roopa, is not an eye witness to the accident.

However, her evidence proves the fact that her husband Eswar Naidu, died in a road traffic accident occurred on 09.04.2017.

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14. The claimants, have relied upon, Ex.A.1 to Ex.A.5 documents, to support the oral testimony of PW.1.

15. Ex.A.1 is Attested true copy of first information report in

Cr.No.45/2017 U/Sec.337 & 304-A of IPC was registered by Penukonda

Police Station, shows, based on the complaint of E.Hanumantharayappa, a case in Cr.No.45/2017 U/Sec.337 & 304-A of IPC was registered against the driver of the crime vehicle, namely Mohammad/R.1, alleging that the driver of the lorry bearing No. K.L.14.R.9382, had driven the same, in a rash and negligent manner and dashed against the Motor cycle, on which Eswar Naidu (deceased) and another were proceeding, as a result, Eswar Naidu, sustained head injury and died on the spot and another person, sustained injuries. This document, did not dispute or deny by the respondents. As such, Ex.A.1, is very much, support the claimants, in all respects. According to the contents of Ex.A.1, the driver of crime Lorry /R.1, held responsible in causing the accident and death of

Eswar Naidu.

16. Ex.A2, is Attested true copy of postmortem certificate, issued by

Civil Assistant Surgeon, Community Health Centre, Penukonda, shows,

Eswar Naidu, died due to hemorrhage and shock and deep laceration of head in a road accident. This document, would support the claimants, that Eswar Naidu, died in a road traffic accident. Admittedly, this document, did not dispute or challenge, by the respondents.

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17. Ex.A.3, is Attested copy of inquest report, shows Eswar Naidu died due to injuries , in a road traffic accident occurred on 09.04.2017 at about 4.30 PM near New Colony on Penukonda- Madakasira State

Highway road of Penukonda Mandal,. This document, would support the claimant in all respects.

18. Ex.A.4, is Attested true copy of rough sketch in Cr.No.45/2017

U/Sec.337 & 304-A of IPC, shows that the Station House Officer,

Penukonda P.S, observed the scene of offence and drafted rough sketch of scene of offence.

19. Ex.A.5, is Original driving licence, issued by Licensing Authority, shows the deceased/ Eswarappa, had a valid driving licence i.e., Non-

Transport and Transport, valid from 24.08.2011 to 31.05.2031.

Admittedly, the accident occurred on 03.02.2017. It appears, the deceased, had a valid driving licence at the time of accident. Admittedly, this document did not dispute or challenge by the respondents. This document would support the claimants, in all respects.

20. The claimants, examined Hanumantharayappa, it is he who lodged a complaint about the accident, as PW.2. He has categorically stated in his examination in chief that he along with Eswar

Naidu(deceased), were proceeding on a motor bike bearing No.AP02-

B.R-3569, by that time Eswarnaidu, being the raider and he was pillion raider. On 09.04.2017, at about 4.30 pm., when they reached at new

Colony, on Penukonda- Madakasira Highway, by that time, a lorry

O.P.70/2018 9 MACT, Hindupur bearing No.KL14.R.9382, being driven by its driver, in rash and negligent manner and dashed against the deceased. As a result, they fell on the road from the Motor Cycle and sustained injuries. The raider Eswar

Naidu, sustained head injury and died on the spot.

21. The evidence of PW.2, would shows that he witnessed the accident and lodged complaint to the police about the accident.

22. The evidence of PW.2, was disputed during the cross-examination.

The witness having denied the suggestion that he has not lodged Ex.P.1 complaint to the police. The witness having denied another suggestion that due to negligence driving of the raider of the motor cycle only, the accident occurred. The witness having denied another suggestion that the accident occurred not due to negligence on the part of the driver of the Lorry. Except the said suggestions, nothing has been elicited, which render his evidence unbelievable. No enmity is suggested to the witness against the driver of the crime vehicle.

23. The oral testimony of PW.2, is support the claimants in all respects, the manner which the accident occurred, in which Eswar Naidu, died.

24. The oral testimony of PW.1 and PW.2, coupled with Ex.A.1 to

Ex.A.5 documents, proves the claim of the claimants that the accident occurred due to rash and negligent driving of the driver of the offending

Lorry bearing No.KL.14.R.9382, as a result, Eswar Naidu, died due to

Head injury.

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25. As stated earlier, the respondents 1 and 3, have not appear before the court, to adduce oral evidence, to say that there was no negligence on the part of the driver of the crime vehicle, at the time of accident and the accident occurred due to negligence on the part of the deceased only.

26. In National Insurance Company Ltd. Vs. Geetha Nagpal and others , 2012 ACJ Page 611. The Hon‟ble Apex Court held that; “The Insurer has failed to adduce any evidence,

denying its liability. The evidence of claimants proved un-

rebuttable”.

27. Non-examination of one of the witness on behalf of R.1 and R.3, an adverse inference can be drawn against them and the claim put forth by them in the counter and written statement, is not correct.

28. Admittedly, the 1st respondent, is being the Driver, 2nd respondent, is being the Owner and 3rd respondent is being insurer of the crime

Lorry bearing No. KL.14.R.9382, at the time of accident. Therefore, this

Tribunal is of consider opinion that all the respondents, being the driver, owner and insurer of the crime vehicle, are liable to pay the compensation to the claimants. Accordingly, these issues are answered in favour of the claimants and against the respondents.

O.P.70/2018 11 MACT, Hindupur

29. Issue No.3:

Now coming to the quantum of compensation is concerned, as per the claim petition Eswar Naidu (deceased), was earning, monthly income of Rs.10,000/- by running restaurant, doing rice business and cultivation. In this regard, the claimants, have not placed any reliable documentary evidence, to say that the deceased Eswar Naidu, was earning Rs.10,000/- per month.

30. Now a days, a coolie would earns Rs.300/- per day. Considering the facts and circumstances of the case, this Tribunal, has consider that it just and reasonable to assess the income of Eswar Naidu ( deceased) as Rs.9,000/- per month notionally. Admittedly, Eswar Naidu, was 35 years old at the time of accident, as per Ex.A.2.Post Mortem Report, and

Ex.A.3 Inquest Report, as on the date of accident. This fact has not been disputed by the respondents, by way of rebuttable evidence.

31. Admittedly, the deceased Eswar Naidu, was 35 years old, as on the date of accident and it is based on the multiplier as „16‟ at the time of the accident, as laid down in “Sarala Varma and others vs. Delhi

Transport Corporation and another reported in 2009 ACJ” page

1298. If 1/4,th is deducted, towards personal living expenses of the deceased, the loss of dependency of the family, would come to (9,000- 2250) Rs.6,750/- per month.

O.P.70/2018 12 MACT, Hindupur

32. The annual income would be comes to (6750 x 12) = Rs.81,000/-

The total income of earning of the deceased would be Rs.81,000 x 16 =

Rs.12,96,000/-. ( Rupees twelve lakhs ninety six thousand only).

33. Further, the claimants, are entitled to Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses, in total, Rs.70,000/- ( Rupees seventy thousand only) as laid down in Pranay Sethi case.

34. Therefore, the claimants are entitled, to total compensation as follows:-

1.Loss of dependencyRs.12,96,000-00

2. Loss of Estate Rs. 15,000-00

3. Loss of consortium Rs. 40,000-00

3.Funeral expensesRs. 15,000-00

TotalRs.13,66,000-00

35. Thus, in all, the claimants are entitled to Rs.13,66,000/- (Rupees thirteen lakhs sixty six thousand only).

36. The learned counsel for the claimants submitted that the Apex

Court, enhanced the rate of interest at 9% p.a. from the date of filing the claim petition till the date of payment. To support his argument, he relied a citation reported in V.Mekala vs. M.Malathi and another 2014 ACJ 1441.

“The Hon‟ble apex Court has granted compensation of

Rs.30,97,000/- with interest @ 9% p.a. in the said citation”.

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37. In view of the above discussion, this Court is of the considered opinion that awarding compensation of Rs. 13,66,000/- (Rupees thirteen lakhs sixty six thousand only) to the claimants Nos.1 to 4, from the respondent Nos.1 to 3, with interest @ 9% p.a. from the date of claim petition, till the date of deposit of the amount into the Court, is just reasonable. Accordingly, this issue is answered in favour of claimants and against the respondents.

38. ISSUE No.4:-

In the result, the claim petition is allowed partly, with proportionate costs, awarding the compensation of Rs.13,66,000/- (Rupees thirteen lakhs sixty six thousand only) with future interest @ 9% per annum from the date of claim petition, till the date of realization.

The respondent Nos. 1 to 3, are liable, to pay the said compensation, to the claimants. The respondents Nos.1 to 3, are directed, to deposit the compensation amount of Rs.1 3,66,000/- (Rupees thirteen lakhs sixty six thousand only) within a month from the date of this order.

The Advocate fee, is fixed at Rs.5,000/- (Rupees five thousand only).

However, the rest of the claim is rejected.

The compensation is awarded to the claimants as follows:-

1) The claimant No.1.N.Rupa, is being the wife of deceased

Eswarnaidu, is entitle to compensation of Rs.8,66,000/- (Rupees eight lakhs sixty thousand only).

2) The claimant No.2.N.Kruthan and No.3.Krushita, are being the children of deceased Eswar Naidu, are entitle to compensation of

O.P.70/2018 14 MACT, Hindupur

Rs.1,50,000/- each(Rupees one lakh fifty thousand only).

(Rs.1,50,000/- x 2 = Rs.3,00,000/-).

3) The claimant No.4.Rangalakshmamma, is being the mother of deceased Eswar Naidu, is entitle to compensation of Rs.2,00,000/- (Rupees two lakh only).

4) On deposit of the compensation amount, the claimant No.1, who is wife of deceased, is permitted to withdraw initially a sum of

Rs.5,66,000/- (Rupees five lakhs sixty six thousand only), along with interest accrued thereon and costs. The balance of compensation of

Rs.3,00,000/- (Rupees three lakhs only), shall be kept, in Fixed Deposit in any Nationalized Bank for a period of two years. After expiring the said period, the claimant No.1, is permitted to withdraw, the same along with accrued interest thereon.

5) The claimant No.2 and 3, who are minor children of deceased, are entitled, to Rs.1,50,000/- each ( Rupees one lakh fifty thousand only).

The said amount shall be kept in Fixed Deposit in any Nationalized Bank till they attains the majority. After attaining majority, 2nd and 3rd claimants are entitled to with draw the same along with accrued interest thereon.

6) The claimant No.4, who is mother of deceased, is permitted to withdraw entire compensation amount of Rs.2,00,000/- (Rupees two lakh only), along with interest accrued thereon and costs.

Dictated to Stenographer and transcribed by him, corrected and

pronounced by me in open court, this the 17 thday of January, 2022.

Chairman,

MACT-CUM-II ADDITIONAL DISTRICT

JUDGE, HINDUPUR.

O.P.70/2018 15 MACT, Hindupur

Appendix of Evidence

Witnesses examined for

Petitioner(s): Respondent(s):

PW.1 : N.Rupa None PW.2 : E.Hanumantharayappa

Documents filed on behalf of the petitioner(s)

Ex.A.1: Attested true copy of first information report

Ex.A.2: Attested true copy of Postmortem certificate inquest report

Ex.A.3: Attested true copy of inquest report

Ex.A.4. Attested copy of rough sketch

Ex.A.5: Original Driving License of deceased.

Documents filed on behalf of the respondent(s)

-Nil-

Chairman,

MACT-CUM-II ADDITIONAL DISTRICT

JUDGE, HINDUPUR.

A.S.65 of 2016 1 II A.D.J.Court, HUP.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE,

HINDUPUR

Present:- Sri S. Prasad, II Addl.District Judge

Friday, the 21 stday of January, 2022

Appeal Suit No.65/2016

Between:

1. Kuruba Gangaiah s/o. Sanjeevappa ( died) by LRs. 2 to 6

2. K.Gangadharappa s/o. Late K.Gangaiah, age 64 years, Agriculturist

3. K.Chandranna s/o. Late K.Gangaiah, age 58 years, Agriculturist,

4. K.Ramanjineyulu s/o. Late K.Gangaiah, age 45 years, Agriculturist,

5. K.Gopal s/o. Late K.Ganagaiah, age 40 years, Agriculturist,

Appellants 2 to 5 are Hindus, residents of Kurlapalli, Lepakshi Mandal, Ananthapuram Appellants/ District. Defendants.

6. V.Sujatha W/o. Sreenivasulu, age 38 years, Hindu, Hose Wife, resident of Madakasira, Ananthapuramu Dist.

Appellants 2 to 6 are added as per Orders in IA.No.147/2019 date 18.06.2019.

Vs.

1. Nanji Reddy, age 59 years,

2. Narasimha Reddy, age 54 years

3. Nagaraju, age 42 years,

4. Papi Reddy, age 30 years

R.1 to R.4 are son of Late Narasi Reddy,

5. Chinnapa Reddy, age 77 years, s/o Respondents/ Nanjappa, Plaintiffs.

All are cultivation r/o. Kurlapalli Village, Lepakshi Mandal, Ananthapuramu Dist.

The above appeal preferred against the Judgment and decree passed by the learned Junior Civil Judge, Hindupur, in OS.No.48/2004

dated 28.02.2013.

A.S.65 of 2016 2 II A.D.J.Court, HUP.

Between:

1. Nanji Reddy, age 59 years,

2. Narasimha Reddy, age 54 years

3. Nagaraju, age 42 years,

4. Papi Reddy, age 30 years

R.1 to R.4 are son of Late Narasi Reddy, Plaintiffs.

5. Chinnapa Reddy, age 77 years, s/o Nanjappa,

All are cultivation r/o. Kurlapalli Village, Lepakshi Mandal, Ananthapuramu Dist.

Vs.

Kuruba Gangaiah s/o. Sanjeevappa, age 65 years, Agriculture, Kurlapalli, Defendant. Lepakshi Mandal.

This appeal coming on 07.01.2022, for final hearing before me in the presence of Sri D.N.Nagaraju, Advocate for the appellants and of Sri A.Nagaraju, Advocate for respondents, and on perusing the material papers on record and the matter having stood over for consideration, this Court delivered the following:

J U D G M E N T

The unsuccessful defendants, in OS.No.48/2004, on the file of the Junior Civil Judge, Hindupur, have filed the present appeal, questioning the validity of the Judgment and Decree, made therein,

dated 28.02.2013, and for costs.

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

Originally, the suit schedule property, belongs to Chakali

Narasimhappa and Narasivanna. The sons of Narasimhappa and

Narasivanna, partitioned their properties, under a registered partition deed dated 06.02.1970. In the said partition, sons of Narasimhappa and Narasivanna, got „ABCD‟ schedule property. „A‟-schedule property was allotted to Kadirappa, „B‟-schedule property was allotted to

A.S.65 of 2016 3 II A.D.J.Court, HUP.

Chinnadeppa, „C‟-schedule property was allotted to Narasivanna and „D‟-schedule property was allotted to Aswarthappa.

It is further averred that Narasivanna, who got suit schedule property in the partition i.e., schedule property, he sold an extent of

Ac.0.30 cents in Sy.No.69-8 out of Ac.0.53 cents out of Ac.03.34, to

Narasi Reddy i.e., father of the plaintiffs 1 to 4, under a registered sale deed dated 01.07.1970 and delivered the possession. Since, the date of purchase, Narasi Reddy, was in possession and enjoyment of the property in Sy.No.69-8 in an extent of Ac.0.30 cents i.e., suit schedule property. After the death of Narasi Reddy, the plaintiffs, being his legal heirs, succeeded the said property and are in possession and enjoyment of the suit schedule property .

It is averred that plaintiffs and their father, mortgaged the suit schedule property in S.F.S.C.S, Lepakshi, in the year 1993, by mortgaging the suit schedule property for Rs.25,000/-. Later, the 1st plaintiff, mortgaged Ac.0.15 cents in the suit schedule property, in

S.F.S.C.S, Lepakshi. Thereafter, the mortgage was redeemed. Since the date of redemption, the plaintiffs have been in possession and enjoyment of the suit schedule property, by raising crop.

It is further averred that the defendant, nothing to do with the suit schedule property, and trying to interfere with the plaintiffs peaceful possession and enjoyment of the suit schedule property.

Having no other go, forcing the plaintiffs, filed the suit for permanent injunction, restraining the defendant, from interfering with the

A.S.65 of 2016 4 II A.D.J.Court, HUP.

plaintiffs peaceful possession and enjoyment of the suit schedule property.

3. On the other hand, the defendant No.1, had resisted the plaint and filed written statement. The brief averments of the written statement are as follows;

It is contended that the defendant No.1, had purchased the Item

No.1 of the written statement schedule property from Chinnadeppa, under a registered sale deed darted 14.10.1971, and took the possession on the same day. The defendant No.1, had purchased another property i.e., Item No.2 of the written statement schedule property, from Ademma w/o. Chakala Kadirappa, under a registered sale deed dated 22.05.1986 and took the possession. Since the date of purchase, the defendant No.1, has been in possession and enjoyment of Item No.1 & 2 of the written statement schedule property. However, the defendants, having denied that the plaintiffs are in possession and enjoyment of the suit schedule property and prayed the court, to dismiss the suit with costs.

4. Based on the above pleadings, the trial Court had framed the following issues:

1. Whether the plaintiffs are entitled for permanent injunction as prayed for?

2. To what relief?

5. In the trial court, on behalf of the plaintiffs, 1st plaintiff-Nanji

Reddy, examined as PW.1 and two others namely C.Anjaneyulu and

A.S.65 of 2016 5 II A.D.J.Court, HUP.

S.Krishna Murthy, examined as PW.2 and PW.3, and got marked

Ex.A.1 to Ex.A.6 documents.

6. On the other hand, on behalf of the defendants, 1st defendant

Kuruba Gangaiah, examined as DW.1 and one P.Subramanyam Sastry, examined as DW.2 and got marked Ex.B.1 to Ex.B.8 documents.

7. On appreciation of the oral and documentary evidence adduced on either side, the learned Junior Civil Judge, Hindupur, decreed the suit in OS.48/2004 dated 28.02.2013 with costs, granting permanent injunction, restraining the defendant, from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property.

8. Assailing the Judgment and Decree, referred to above, the defendants, have filed the present appeal.

9. For the sake of convenience, I refer the parties as arrayed in the

Court below. The appellants, are the defendants, while the respondents, are the plaintiffs, in OS.48/2004.

10. Heard the arguments of both the counsel.

11. Now, the points that would arise for my consideration are :- 01Whether the respondents/plaintiffs, are in possession and enjoyment of the suit schedule property and entitled for permanent injunction as prayed for?

02Whether the appellants/defendants, are entitled for setting aside the Judgment and Decree made in OS.No.48/2004, on the file of Junior Civil Judge, Hindupur, dated 28.02.2013?

A.S.65 of 2016 6 II A.D.J.Court, HUP.

12. POINT Nos.1 & 2:

In a suit like permanent injunction, the burden lies on the plaintiffs, they must establish that they are in possession and enjoyment of the suit schedule property, as on the date of filing the suit. Since the defendants, having denied the possession of the plaintiffs, over the suit schedule property. In such a case, the burden heavily lies on the plaintiffs, to prove their lawful possession and enjoyment of the suit schedule property, as on the date of filing the suit.

13. To substantiate the case of the plaintiffs, Nanji Reddy-Plaintiff

No.1, examined as PW.1. He filed chief affidavit, in lieu of chief examination, wherein he reiterated the same facts, as narrated in the plaint averments.

14. The plaintiffs have relied upon Ex.A.1 to Ex.A.6 documents, to support the oral testimony of PW.1.Nanji Reddy.

15. Ex.A.1, is Registration Extract of Sale deed dated 01.05.1970, shows Narasi Reddy S/o Nanjappa, the father of plaintiff Nos.1 to 4, had purchased, the land from Nara Sivanna, i.e., Sy.No.69-8 in an extent of Ac.0.30 cents out of Ac.03.34 cents, and took the possession on the same day. The survey number, extent, boundaries shown in

Ex.A.1, are exactly tally with the suit schedule property. Admittedly, the defendants, have not challenged this document, till the date of filing the suit. Therefore, Ex.A.1, is very much support, the plaintiffs that their father, purchased the suit schedule property, under Ex.A.1 and took the possession on the same day.

A.S.65 of 2016 7 II A.D.J.Court, HUP.

16. Ex.A.2, is Registration Extract of Partition Deed dated 06.02.1970, shows, the sons of Narasimhanna, namely Kadirappa,

Chinnadeppa, Narasivanna and Aswarthappa, got partitioned the joint family property. In the said partition, A-schedule property was allotted to kadirappa, B-schedule property was allotted to Chinnadeppa, „C‟- schedule property was allotted to Narasivanna and „D‟-schedule property was allotted to Aswarthappa. This document did not dispute or deny by the defendants.

17. Ex.A.3 is Encumbrance Certificate, would shows Narasi Reddy and Nanji Reddy/plaintiff No.1, mortgaged the land in Sy.No.69/8 under mortgage deeds dated 18.02.2000 and 27.04.1993. According to Ex.A.3, the plaintiff and his father, mortgaged the suit schedule property and availed loan. This document has not been disputed by defendants. As such, this document would help the plaintiff, about mortgage of suit schedule property.

18. Ex.A.4, is No.10 Adangal for the fasli 1413, issued by the

Panchayat Secretary, Grama Sachivalayam, Lepakshi, shows the name of Kadirappa, Aswarthappa, Chinnadeppa and Narasivanna, shown as owners of land in Sy.No.69-8, in an extent of Ac.03.34 cents and they were cultivating the said land. Admittedly, this document, is not challenged or disputed by defendant No.1, by way of rebuttable evidence. This document would support the plaintiffs that sons of

Narasimhappa, are the pattadars and anuvabhavadars of the land

Sy.No.69-8, in total extent of Ac.03.34 cents.

A.S.65 of 2016 8 II A.D.J.Court, HUP.

19. Ex.A.4, further shows, Narasi Reddy s/o Nanjappa, i.e., father of the plaintiffs, purchased the land in Sy.No.69/8 in an extent of

Ac.0.30 cents out of Ac.03.34 cents, vide document No.859/1970

dated 01.05.1970, from Narasivanna. This document, is very much

support the plaintiffs, that their father purchased the suit schedule property, from its rightful owner, under a registered sale deed dated 01.05.1970 (Ex.A.1).

20. Ex.A.5, is Rough Plan, and Ex.A.6, is 1-B Namoona, issued by

Tahsildar, Lepakshi, shows the name of Nanji Reddy/ plaintiff No.1, is shown as pattadar and anuvabhadar, for the land in Sy.No.69-8 in an extent of Ac.0.15 cents.

21. The evidence of PW.1, was disputed during the cross- examination, but nothing was elicited, which render his evidence unbelievable.

22. The oral testimony of PW.1, coupled with Ex.A.1 to Ex.A.6, documents, would support the plaintiffs, that they are in possession and enjoyment of the suit schedule property, as on the date of filing the suit.

23. The plaintiffs, examined two more witnesses on their behalf namely C.Anjineyulu and S.Krishna Murthy as PW.2 and PW.3.

24. PW.2.C.Anjineyulu s/o. Narasivanna, who is none other than the son of vendor of the plaintiffs father. He has stated in his examination in chief that his father got „C‟-Schedule property, under the partition deed dated 06.02.1970. The suit schedule property, is one among the

A.S.65 of 2016 9 II A.D.J.Court, HUP.

„C‟ schedule property, that was in possession and enjoyment of the said property. His father, sold Ac.0.30 cents, out of Ac.0.53 cents in

Sy.No.69/8, in „C‟- schedule property, to Narasi Reddy, the father of the plaintiffs and delivered the possession. Since, the date of purchase, Narasi Reddy was in possession and enjoyment of the said property. After death of Narasi Reddy, the plaintiffs, succeeded the said property and they are in possession and enjoyment.

25. The evidence of PW.2, was disputed during the cross- examination. But, nothing was elicited, which render his evidence unbelievable.

26. The oral testimony of PW.2, would support the plaintiffs, in all respects.

27. PW.3.S.Krishna Murthy, Village Revenue Officer, Lepakshi, he has stated in his examination in chief that plaintiff No.1, is in possession and enjoyment of the suit schedule property in Sy.No.69-8 in an extent of Ac.0.15 cents. Accordingly, he issued Ex.A.6/1-B

Namoona. However, the oral testimony of PW.3, would corroborates the contents of Ex.A.6, in all respects, the reason that Ex.A.6, was not challenged by the defendants, before any higher authority. The oral testimony of PW.3 coupled with Ex.A.6, would support the plaintiffs, in all respects.

28. The defendant, Kuruba Gangaiah, examined as DW.1. He filed chief affidavit, in lieu of chief examination, wherein he reiterated the same facts as contended in the written statement. The evidence of

DW.1, was disputed during the cross-examination. The witness having

A.S.65 of 2016 10 II A.D.J.Court, HUP.

admitted the fact in his cross-examination that he do not know the suit survey number and total extent. This piece of evidence of defendant, would reveal that he do not know anything about the suit schedule property.

29. The defendant No.1, as DW.1, having admitted the fact, in his cross-examination about the partition deed dated 06.02.1970. The said partition deed marked as Ex.A.2.

30. A perusal of Ex.A.2.Partition Deed, shows, Kadireppa,

Chinnadeppa, Narasivanna and Aswarthappa sons of Narasimha Reddy had partitioned the joint family property as “ABCD”. In the said partition, „A‟ schedule property was allotted to Kadireppa, „B‟ schedule property was allotted to Chinnadeppa, „C‟ schedule property was allotted to Narasivanna and „D‟ schedule property was allotted to

Aswarthappa.

31. According to admission made by defendant, as DW.1, in his cross-examination, which would support the plaintiffs about the partition effected among the sons of Narasimhappa and Narasivanna and in the said partition, the land in Sy.No.69-8 in an extent of

Ac.0.53 cents was allotted to each persons. In the said partition, each got Ac.0.53 cents in Sy.No.69-8 in an extent of Ac.03.34 cents, respectively.

32. As stated earlier, the plaintiffs have been claimed in the plaint and in the evidence of PW.1 that, their father purchased „C‟-schedule property, from Narasivanna, who got his share of property under

Ex.A.2 i.e., land in Sy.No.69/8, in an extent Ac.0.53 cents, out of

A.S.65 of 2016 11 II A.D.J.Court, HUP.

Ac.03.34 cents, the plaintiffs father Narasi Reddy, purchased in an extent of Ac.0.30 cents in Sy.No.69-8, from Narasivanna, under a registered sale deed dated 01.05.1970, for a valid consideration of

Rs.200/- under Ex.A.1. After death of plaintiffs father, they succeeded the said property and they are in possession and enjoyment.

33. It is the evidence of PW.1 and claim of the plaintiffs in the plaint averments that Narasi Reddy and plaintiffs, mortgaged the suit schedule property, in S.F.S.C.S, Hindupur and Lepakshi in the year 1993 and 2000 and later, they discharged the mortgaged debt and they are in possession and enjoyment of the said property.

34. In this regard, the defendant/ Gangaiah, has admitted in his cross-examination that the name of Nanji Reddy/ PW.1, plaintiff has mutated in 1-B Namoona, in respect of suit schedule property. For better appreciation, I would extract the relevant portion of cross- examination, which read as hereunder:- “Nanji Reddy s/o Narasi Reddy, name is mutated in 1-B

Register”.

35. In this regard, the plaintiffs have filed 1-B Namoona, issued by the Tahsildar, Lepakshi, which was marked as Ex.A.6. As stated earlier, as per Ex.A.6, the name of Nanji Reddy/ PW.1, is shown as pattadar and anuvabhadar, for the land in Sy.No.69-8 in an extent of

Ac.0.15 cents.

36. The defendants, having relied upon Ex.B.1 to Ex.B.8 documents, to support the evidence of DW.1.

A.S.65 of 2016 12 II A.D.J.Court, HUP.

37. Ex.B.1, is Registered Sale deed dated 22.05.1986, shows Kuruba

Gangaiah/ defendant No.1, purchased the land from Ademma w/o

Kadireppa, i.e., Sy.No.69/8 in an extent of Ac.0.53 cents with specific boundaries. This document, would reveal that Ademma, w/o

Kadireppa, sold the property, to the defendant No.1.

38. As discussed earlier, Kadireppa i.e., husband of Ademma, was allotted „A‟ schedule property, under Ex.A.2. „C‟ schedule property was allotted to Narasivanna, from whom the father of the plaintiffs purchased the property in Sy.No.69-8 in an extent of Ac.0.30 cents under Ex.A.1.

39. Ex.A.2 Partition Deed, is very much clear that „A‟ schedule property i.e., Sy.No.69-8 an extent of Ac.0.53 cents out of Ac.03.34 cents, was allotted to Kadireppa. The said property, in turn sold by his wife Ademma to the defendant, under Ex.B.1. The survey number, extent and boundaries shown in Ex.B.1, not tally with the suit schedule property. However, it is not the case of the defendant that the land under Ex.B.1 and the suit schedule property, are one and the same. As such, no weight would be given to this document.

40. Ex.B.2, is Registration Extract of Sale Deed dated 14.10.1971, shows Gangaiah/ defendant No.1, had purchased the property from

Chinnadeppa, i.e., the land in Sy.No.69-8 in an extent of Ac.0.53 cents and took the possession on the same day.

41. As stated earlier, Chinnadeppa s/o Narasimhanna, who got his share of property as „B‟ schedule under Ex.A.2 partition deed. This document would clear that the property of Chinnadeppa, had sold his

A.S.65 of 2016 13 II A.D.J.Court, HUP.

share to defendant, under Ex.B.2. The survey number, extent and boundaries shown in Ex.B.2, not tally with the suit schedule property.

Therefore, this document, do not help the defendants.

42. Ex.B.3 to Ex.B.6, are FMB sketch for Sy.no.69 and Sy.No.66,

Adangals for Sy.No.66-3, Sy.No.66-2. These documents, do not contain the survey number, extent and boundaries of the suit schedule property. As such, no weight would be given to these documents.

43. Ex.B.7 is Commissioner‟s report and Ex.B.8 is Rough Plan. These documents, do not confer the right or possession of the defendants, in suit schedule property. Therefore, these documents, do not help the defendant, in any manner.

44. The defendants, examined one more witness on his behalf namely, P.Subramanyam Sastry, Advocate Commissioner, who visited the suit schedule property and filed his report along with the plan under Ex.B.7 and Ex.B.8.

45. According to DW.2, he visited the suit schedule property and noted the physical features of the suit schedule property as per the warrant. This piece of evidence of DW.2, and Ex.B.7 Report, would not help the defendants, in any manner, to say that the defendants are in possession and enjoyment of the suit schedule property.

46. The above foregoing discussion, this court is of consider opinion, that the plaintiffs, established their lawful possession and enjoyment of the suit schedule property, as on the date of filing the suit. As such,

A.S.65 of 2016 14 II A.D.J.Court, HUP.

the plaintiffs are therefore, entitled for permanent injunction against the defendants, as prayed for.

47. The findings recorded by the trial Court, are in accordance with law. Absolutely, there is nothing on record, to interfere with the findings of trial Court. The appellants, are therefore, not entitle for setting aside the Judgment and Decree made in OS.No.48/2004, on the file of Junior Civil Judge, Hindupur, dated 28.02.2013. Accordingly, the points are answered.

48. In the result, the appeal is dismissed, confirming the

Judgment and Decree made in OS.No.48/2004, on the file of Junior

Civil Judge, Hindupur, dated 28.02.2013. However, both parties do

bear their own costs.

Dictated to Stenographer and transcribed by him, corrected and

pronounced by me in open Court, on this the 21 st day of January,

2022.

II Additional District Judge, Hindupur.

Appendix of Evidence Both oral and documentary evidence. -Nil -

II Additional District Judge, Hindupur.

Copy to the Junior Civil Judge, Hindupur.

C.M.A.06 /2019 1 II A.D.J.Court, HUP.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE ::

HINDUPUR

Present: Sri S.Prasad,

II Additional District Judge

Friday, this the 7 thday of January, 2022

CIVIL MISCELLANEOUS APPEAL NO.06/2019

Between:

1. D.Rangappa s/o. Late Dasappa, age 60 years, Appellants/

2. D.Govindappa s/o. Late Dasappa, age 57 Petitioners/ years, Plaintiffs. All are Hindus, Cultivation, residents of Agali-Village and Mandal, Ananthapuram District.

Vs.

D.Thimmappa s/o. Late Dasappa, age 65 1. years, Hidu, Cultivation, D.Sreenivasappa s/o. Late Dasappa, aged 2. 50 years, Hindu, Cultivation, Smt.Rathnamma w/o. Thimappa, age 48 3. years, Hindu, House-wife, Narasamboodi, Agali-Village and Mandal, Anantapuramu District. Smt.Manjamma w/o Nagaraju, aged 45 4. years, Hindu, House wife, A.Agraharam, Barugur-Hobli, Sira-Tk, Karnataka, Tumkur Dist. D.Hanumappa s/o late Dasappa, aged 63 5. Respondents/ years, Hindu, Respondents/ D.Krishnappa s/o Late Dasappa, aged 50 6. Defendants. years, Hindu D.Nagaraju s/o Late Dasappa, age 45 7. years, Hindu.

On appeal against the Order and decree passed in IA.No.256/2018 in

O.S.No.300/2018 on the file of learned Addl. Junior Civil Judge, Hindupur,

dated 02.07.2019 made ;-

Between:

1. D.Rangappa s/o. Late Dasappa, age 60 years,

2. D.Govindappa s/o. Late Dasappa, age 57 Petitioners/ years, Plaintiffs. All are Hindus, Cultivation, residents of Agali-Village and Mandal, Ananthapuram District.

Vs.

D.Thimmappa s/o. Late Dasappa, age 65 1. years, Hidu, Cultivation, D.Sreenivasappa s/o. Late Dasappa, aged 2. 50 years, Hindu, Cultivation,

C.M.A.06 /2019 2 II A.D.J.Court, HUP.

Smt.Rathnamma w/o. Thimappa, age 48 3. years, Hindu, House-wife, Narasamboodi, Agali-Village and Mandal, Anantapuramu District. Smt.Manjamma w/o Nagaraju, aged 45 4. years, Hindu, House wife, A.Agraharam, Barugur-Hobli, Sira-Tk, Karnataka, Tumkur Dist. D.Hanumappa s/o late Dasappa, aged 63 5. years, Hindu, Respondents/ D.Krishnappa s/o Late Dasappa, aged 50 Defendants. 6. years, Hindu D.Nagaraju s/o Late Dasappa, age 45 7. years, Hindu.

This Civil Miscellaneous Appeal coming on 04.01.2022 for final hearing

before me in the presence of Sri K.Satyanaayana, Advocate for the

appellants and Sri M.Ramesh, Advocate for R.2, R.5 & R.6, Sri P.Raghunatha Sastry, Advocate for R.7, R.1, R.3 and R.4 set exparte, and on hearing both sides and upon perusal of the material papers on record, this Court passed the following:

O R D E R

The unsuccessful, petitioners/ plaintiffs in IA.255/2018 in

OS.104/2018, on the file of Senior Civil Judge, Hindupur, have filed present

Civil Miscellaneous Appeal, challenging the Order and Decreetal Order made there in dated 30.01.2019.

2. The brief averments of the petitioners affidavit are as follows:-

The petition/suit schedule property is ancestral and joint family properties of petitioners and respondents. No division effected between the petitioners and respondents. Recently, misunderstandings arose between the petitioners and respondents. On account of mis-understandings, the petitioners demanded the respondents, for amicable partition and separate possession of petition/suit schedule property. The respondents, are seriously trying to make constructions in the petition schedule property without consent of the petitioners. The petitioners are coparceners. If the respondents made constructions, the petitioners will be put to irreparable

C.M.A.06 /2019 3 II A.D.J.Court, HUP.

loss. There is prima-facie case and balance of convenience, in their favour.

Having no other go forcing the petitioners, filed the present petition.

3. On the other hand, the respondents, resisted the petition and filed counter. The brief averments of the counter are as follows:-

The respondents, having admitted the relationship of the parties to the petition. They admitted that respondent No.8 and branches of

Hanumakka and Lakshmidevamma, are being coparceners, they are entitle share to the suit schedule property. The partition has not been taken so far.

The question of making construction in the Item No.2 of the schedule property, does not arise and prayed the Court, to dismiss the petition.

4. Basing on the pleadings, the Court below has framed the following points:

Whether the petitioners 1 and 2 are entitled for temporary injunction against the respondents as prayed for?

5. No oral evidence adduced on either side. However, on behalf of the petitioners Ex.p1 to Ex.P.8 documents are marked. Whereas, on behalf of the respondents, Ex.B.1 to Ex.B.29 documents marked.

6. The learned trial Judge, has dismissed the IA.No.255/2018 in

OS.No.104/2018 on 30.01.2019, by refusing to grant temporary injunction,

on the ground that no prima-facie case made out by the petitioners.

7. Assailing the order and decreetal order, referred to above, the appellants/ petitioners, have filed the present Civil Miscellaneous Appeal.

8. For the sake of convenience, I refer the parties as arrayed in the Court below. The appellants are the petitioners, while the respondents, are the respondents, in IA.No. 255/2018 in OS.No.104/2018 dated 30.01.2019.

C.M.A.06 /2019 4 II A.D.J.Court, HUP.

9. Heard the arguments of both the counsel

10. Now, the points that would arise for my consideration are :- 01Whether the Appellants/Petitioners, are entitle the relief of temporary injunction, as prayed for?

02 Whether the Appellants/ Petitioners, are entitled for setting aside the order and decretal order made in IA.No. 255/2018 in

OS.No.104/2018 dated 30.01.2019, on the file of Senior Civil

Judge, Hindupur?

11. POINTS:

A perusal of the pleadings of both the parties, the petitioners and the respondents are joint family members and they are branch of Hanumakka and Lakshmidevamma and they got share in the suit schedule property.

12. A perusal of the Order’s of the trial Court in IA.No. 255/2018 in

OS.No.104/2018 Dated 30.01.2019, in which the trial Judge, got marked

Ex.P.1 to Ex.P.8 documents, on behalf of the petitioners and Ex.R.1 to

Ex.R.29 documents on behalf of the respondents. However, the trial Court, has not discussed about the documents filed on both sides. Without discussion, the documents relied by both parties, the trial Court, has dismissed the said IA., by refusing to grant temporary injunction.

13. In S.Chinnam Setti Ramamurthi Vs. Gattu Venkatesh and another, 2001 (2) ALT Page 317, the Hon’ble High Court held that :- “When the injunction has been sought, they shall discussed of documents, filed on their side. Without discussion of all documents, case shall be remanded back for fresh consideration”.

14. Admittedly, the case hand, the learned Senior Civil Judge, has not discussed the documents, filed on both parties. Instead of discussion of

C.M.A.06 /2019 5 II A.D.J.Court, HUP.

documents, and give finding on the said documents, dismissed the

IA.No.255/2018.

15. In view of the above citation, when temporary injunction, has been sought by the petitioners, the trial Court shall discuss, all documents, filed on either side and give finding or reasons, whether the petitioners are entitled the relief of temporary injunction or not. Admittedly, the trial Judge, has not discussed the documents.

16. In view of the above circumstances, this Court is of consider opinion that, it is fit case, where to remand the matter, to the Trial Court, for fresh consideration. The trial court shall discuss or decide the documents, filed by both parties, marked on their behalf and dispose of IA, in accordance with law.

17. The findings, recorded by the trial Court, are not in accordance with the law. As such, the appellants/ petitioners, are therefore, entitled for setting aside the order’s and decreetal order, made in IA.No. 255/2018 in

OS.No.104/2018 Dated 30.01.2019 on the file of Senior Civil Judge,

Hindupur.

18. In the result, the Civil Miscellaneous Appeal, is allowed, setting aside the order and decreetal order made in IA.No.255/2018 in OS.No.104/2018

Dated 30.01.2019, on the file of Senior Civil Judge, Hindupur. The matter is

remand back to the trial Court, for fresh consideration. The trial Judge, shall discuss all the documents, filed on either side and dispose the case, as fresh.

Further, the trial Court, is directed to dispose the said I.A expeditiously as possible, within a period of two months, after receiving the order of this

C.M.A.06 /2019 6 II A.D.J.Court, HUP.

Court. However, both parties do bear their own costs.

The office is here by directed to send all the material papers, to the lower Court, immediately, after duly indexed.

Dictated to Stenographer and transcribed by him, corrected and

pronounced by me in open Court on this the 7 thday of January, 2022.

Sd/S.Prasad

II ADDITIONAL DISTRICT JUDGE,

HINDUPUR.

APPENDIX OF EVIDENCE

- Nil –

Id/S.Prasad.

I A.D.J.

Copy to the Senior Civil Judge, Hindupur.

In the Court of :II Addl.District Judge Hindupur

Case No. :EP/0000002/2021 D.G.Ananda Murthy S/o Late D.Govindappa Vs D.G.Arunadevi W/o K.L.Hanumanthaiah

Date : 31-01-2022

Business: The counsel for the D.H.r filed full satisfaction memo and the same is recorded. E.P. is terminated Nature of Disposal : TERMINATED Disposal Date: 31-01-2022 II Addl.District Judge Hindupur