Sri S. Ramesh

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE

PRAKASAM DISTRICT AT ONGOLE

Present : Sri S.Ramesh., VII Addl.District Judge, Ongole.

Tuesday, the sixth (06th) day of March, 2018

ORIGINAL SUIT No.32 of 2011

======================

Between:

Ravula Padmavathi, w/o.Radhakrishna Murthy, age 40 years, R/o.D.No.35-3-69 (55/8), CRP Quarters, Ongole, Prakasam District.…… Plaintiff,

A N D

Aravapalli Venkata Seetharama Mohana Rao, s/o.Subba Rao, age 41 years, R/o.D.No.8-282, Sundar Nagar, Mangamur Road,Ongole, Prakasam District.…… Defendant.

--o0o-- Subject : Suit for recovery of money basing on promissory note. @ @ @ @

The above numbered suit coming on 20-02-2018 for final hearing

before me, in the presence of Sri R.Kesava Rao- Advocate for Plaintiff

and of Sri P.Srinivasulu- Advocate for the Defendant, the matter having stood over for consideration till this day, the court made the following :

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

=============

This is a suit, filed by the Plaintiff, for recovery of money, from the

Defendant, basing on promissory note, together with Interest and costs.

[1].Averments of the plaint in nutshell are that_

The Defendant in order to meet his business necessities, borrowed

Rs.14,25,000/- on 18-02-2008 from the Plaintiff, in evidence thereof, he executed the suit promissory note, agreeing to repay the loan with 2 interest @ 24% p.a., with yearly rests, either to the Plaintiff or his order on demand.

In spite of repeated demands made by the Plaintiff, the Defendant has not discharged the debt, postponed the repayment on one pretext or the other, in the circumstances, the Plaintiff was constrained to file the suit.

[2].On institution of the suit, summons have been issued, directing the Defendant to attend the court, to answer claim of the Plaintiff, in response to the suit summons, he has attended the Court through his counsel, filed the Written Statement, denied the material allegations in the plaint, resisted the claim of the Plaintiff and contested the matter.

[3]. Contention of the Defendant in brief is as follows_

The material allegations that he borrowed money, executed the suit pro-note, agreed to repay the same with interest etc., are all incorrect.

He does not know who is the Plaintiff. The suit pronote is rank forged one. He never subscribed his signature on suit pronote. He had no necessity to borrow such huge amounts for the alleged purpose of business, since he is a private employee in travel agency, therefore, the suit, may be dismissed with exemplary costs.

[4].Basing on the above pleadings and rival contentions, on hearing both sides, my learned predecessor has framed/settled the issues mentioned hereunder for trial_

1. Whether the suit promissory note dated 18-02-2008 for

Rs.14,25,000/- is true, valid and biding on the Defendant?

2. Whether the Plaintiff is entitled for the suit claim ?

3. To what relief ?

3 [5].The parties went for trial_

The Plaintiff- Ravula Padmavathi examined herself as P.W.1 and got marked the Exhibits (Ex.s') A.1 to A.3.

She has also examined the 2nd Attestor and the scribe of Ex.A1 namely A.Prasada Rao and D.Rosaiah as P.Ws.2 and 3.

The Defendant A.V.S.Ramamohana Rao, gave his evidence as

D.W.1 and no documentary evidence is adduced on his behalf.

The hand-writing Expert Sri V.Muralidhar- Assistant Director,

Forensic Science Laboratory, Hyderabad, gave his evidence as C.W.1 and Ex.X.1 is marked through him.

[6].Heard arguments of learned counsel for the Plaintiff and the

Defendant, they have also filed their respective Written Arguments. The [7].ISSUES 1 and 2:

The settled principle is that burden of proving the case is always on the Plaintiff who must adduce reliable and admissible evidence, to prove the case. The Plaintiff must succeed on the strength of her own evidence and not be sustained by any weakness in the case of the

Defendant.

Our High Court in “Ponugupati Subba Rao Vs Sikhakollu Pulla

Rao, reported in 1999 (3) A.L.D 446” has held that_ “In a suit based on pro-note, initial burden lies on the plaintiff to prove execution of pro-note and when it is discharged, the burden shifts to the Defendant to prove that the document was forged, if he has not discharged that burden, the trial Court is right to decree the suit”.

Hon’ble Supreme Court in “Moran Mar Basselios Catholicos Vs

Thukalan Paulo Avira and others” reported in A.I.R 1959 S.C 31” has held that_ “The question of burden of proof at the end of the case, when both parties have adduced their evidence is not of very great 4 importance and the court has to come to a decision on a consideration of all materials." [8].Plea of the Defendant is one i.e., total denial of the case. He took plea specifically that he was not doing business, there was no necessity to borrow such huge amount, the signature on Ex.A.1 is not that of him and that Ex.A.1 is forged, fabricated and / or created.

He also pleaded in the Written Statement that he does not know who the Plaintiff herein, therefore, the entire burden(of proof) is on the

Plaintiff to prove that the defendant borrowed money and executed

Ex.A.1.

[9]. In order to prove the pleadings, to get the relief, the Plaintiff as

P.W.1, filed affidavit for her evidence, stepped into the witness box, said in her examination-in-chief(through affidavit) to that of her claim in the suit that the Defendant borrowed the money, executed Ex.A.1 in the presence of P.Ws.2, 3 and the other attestor.

P.W.2-A.Prasada Rao through affidavit, said in his examination-in- chief, supporting the claim of the Plaintiff and deposed in his cross- examination that the Plaintiff called for him to be present at her house to act as witness for the transaction of loan, P.W.1 gave the consideration to the Defendant.

[10]. P.W.3-D.Rosaiah said that he is the scribe of Ex.A.1 and deposed in his cross-examination that the Defendant himself brought the pro-note from the office of Registrar.

The Defendant through his counsel has examined P.Ws 2 and 3 at length, but no useful information is drawn from them either to disbelieve, suspect their testimony or to discard their evidence. The suggestion given to P.W.2 is that he is deposing falsehood that father of the Plaintiff happened to be his friend, to which, he denied. No suitable 5 suggestion is given to P.W.3 to doubt his testimony. P.Ws.2 and 3 are independent and eye-witnesses to the transaction, being the 2nd attestor and scribe of Ex.A.1 have supported the plea of the Plaintiff, therefore, their testimony stands good.

P.W.1 deposed in her cross-examination that she got acquaintance with the Defendant, who is the friend of, owner of the gold shop, they are customers. She is housewife and also doing cultivation in large scale, the lands are, stands in the name of her husband, the transaction covered under pro-note occurred at her house on the day at about 5 to 6 pm., the Defendant signed in Ex.A.1 twice [one is on Revenue Stamp and the other is underneath the stamp].

The Defendant through his counsel examined the witness in cross, but nothing is elicited from her evidence at least to create a doubt in her testimony in respect of Ex.A.1. The suggestion given to P.W.1 is that, as this Defendant got some differences with some customers in the travels, at their instance this Plaintiff has filed the suit, to which, she denied. But the Defendant has not stated with whom he has got enmity or differences and the necessity of this Plaintiff to file the suit at the instance of the said one. Therefore, I do not find any reason either to disbelieve or to discard the testimony of P.W.1 and her evidence stands good.

[11]. The Plaintiff by adducing oral evidence of her as P.W.1 and through evidence of P.Ws 2, 3 and by marking Ex.A.1, has discharged her initial burden and proved the pleadings that the Defendant to meet his business necessities borrowed amount and executed Ex.A.1.

Therefore, the burden shifted to the Defendant to prove that he does not know who is the Plaintiff and that there was no chance for him to borrow the amount from her, covered under Ex.A.1 and that it is 6 fabricated document. As he denied the signature in Ex.A.1, a heavy duty cast upon him to prove his allegation.

[12]. In order to prove his version and to disprove the claim of the

Plaintiff, the Plaintiff as D.W.1 said in his examination-in-chief (through affidavit) to that of his contention in the Written Statement and deposed in his cross-examination that he studied up to 10th Class, had no disputes with the Plaintiff, he is one of the accused in the murder case of Vellampalli Gopi, he sold away his house, situated in Ongole to

Seelamsetty Balaji on 09-07-2010 subsequently, the Plaintiff herein has filed creditors I.P.(No.34 of 2010) before the Additional Senior Civil

Judge’s Court, Ongole and it was allowed, in which, the Plaintiff has

shown the properties sold by him and by taking a plea about the pro- note(covered by the suit)., Exs.A.2 and A.3 are the signatures on photostat copy of his tax returns and copy of his G.P.A.

[13]. Mere denial of the signature in Ex.A.1 itself is not sufficient to consider the plea of the Defendant since he need to prove that it is not his signature. He also filed Interlocutory Application (I.A) No.456 of 2014 under Section 45 of the Indian Evidence Act., the Court allowed it, the suit document was referred to the hand-writing expert for comparison with his alleged admitted signatures. Accordingly, the

Expert has examined the suit document and gave opinion.

The Assistant Director, Forensic Science Laboratory, Hyderabad, by name Sri V.Muralidhar, gave his evidence as C.W.1 and his report is marked as Ex.X.1.

[14]. C.W.1 deposed in his examination-in-chief that after receiving the requisition from this Court with the suit pro-note (containing the questioned signatures), and Vakalath, Affidavit, suit summons, specimen sheet containing the standard signatures of A.V.S.Ramamohana Rao 7 (Defendant), accordingly, he has marked the questioned signatures (in

Ex.A.1) as ‘Q.1 and Q.2’ and the signatures in the Vakalath, affidavit, suit summons and specimen sheet, as ‘S.1 to S.14’, examined the signatures and gave opinion under Ex.X.1 with opinion that the person who wrote Red enclosed signatures as S.1 to S.14 did not write the red enclosed signatures marked as Q.1 and Q.2.

C.W.1 deposed in his cross-examination that there is difference of sizes in Q.1, Q.2 to S.1 to S.14 regarding length and spacing, the variations are between S.3 (suit summons) and S.4 to S.14, there is possibility in the pictorial differences in the signatures found due to time gap, they have not requested the Court for the contemporaneous signatures of the year 2008 for comparison.

[15]. A scrutiny of the testimony of C.W.1 reveal that he just examined the suit document -Ex.A.1 containing Q.1 and Q.2 with the signatures

S.1 to S.14 as if those were admitted and contemporaneous signatures.

The Defendant cleverly has requested the Court to send S.1 to

S.14 to the Expert for comparison, but he is required to produce the documents containing his admitted and contemporaneous signatures.

Though he admitted that the document-G.P.A. dated 09-07-2010 contains his signatures, he has not produced the original of it, may be with a view to suppress the material fact.

[16]. Learned counsel for the Defendant contends that no prior notice was given to the Defendant, it is a ground to suspect the credence of the

Plaintiff. This Court is not agreeing the said contention since giving notice prior to filing the suit for recovery of money (by the original creditor) basing on the promissory note, is not mandatory.

The counsel further contends that P.W.2 deposed in his cross- examination that he does not who was the other attestor, therefore, his 8 testimony carry no weight. The argument of the Defendant is not correct as the pronote is not compulsorily attestable document, even if

P.W.2 has stated that he does not know the other attestor, it is not a ground to disbelieve his evidence.

[17]. The counsel further contends that P.W.3 deposed in his cross- examination that he does not know who are the attestors. This part of evidence itself is not a ground to discard the claim of witness, as he stated in the cross-examination only that the Defendant himself brought the promissory note, to the house of the Plaintiff, borrowed the amount and executed the promissory note.

The counsel further contends that C.W.1 categorically stated in his evidence that the person who subscribed the signatures as Q.1 and Q.2 is different from the person, who subscribed the signatures in S.1 to S.4, therefore, the evidence of C.W.1- the Scientific Expert is sufficient to hold that the suit pronote is forged and fabricated.

[18]. This court is not agreeing the contention of the defendant regarding the evidence of C.W.1, since his evidence is not the conclusive proof, but it is an aid to the Court to arrive at a conclusion, the reasons are_

The Defendant is required to produce the original documents containing his signatures which will be admitted and contemporaneous signatures, but for the reasons best known to him, he did not produce those documents like, signature in the Form for opening the Bank

Account, Registered document containing in his signature or any other document which will be treated as his admitted signature.

The reasons behind this concept is that, if a person with a view to avoid his liability [regarding a debt]started putting signature in different style, no court will compare the signature even by the aid of 9

Section 73 of the Evidence Act., and the Hand-Writing Expert also may not detect these variations.

[19]. The documents sent to the Expert are not the admitted and contemporaneous signatures. In this regard, I am fortified with the decision of our High Court in “Sallepalli Narasimha Reddy Vs Yerram

Pedda Subba Reddy (dated 22-11-2013), reported in 2014 (1) A.L.T 608”, has held that ___ “The rule of prudence requires the court to send the admitted and contemporary signatures of the person to the expert to compare the same with his disputed signatures on the document. According to Cambridge Advanced Learner's Dictionary "Contemporary" means belonging to the same or a stated period in the past. It is needless to say that admitted signatures means the signatures on the documents maintained by any authority in course of its business such as signatures on a passport, income-tax returns, bank passbook or registered sale deed.” -Paragraph 14.

In the case on hand, the Defendant cleverly filed I.A.No.456 of 2014 requesting the Court to send Ex.A.1 to the Hand-Writing Expert for comparison of his signatures, the I.A. was allowed on 29-12-2014, the suit document Ex.A.1 was sent to the expert for comparison of signatures in the vakalth, affidavit, suit summons and specimen signatures taken in the Court. The Vakalath is filed before the Court in the month of March-2011, the suit summons are subsequent to filing the suit, which was filed in the year 2011. The suit document is dated 18- 02-2008, therefore, they are not the contemporaneous and admitted signatures.

[20]. I am also fortified with the Full Bench decision of our Hon'ble

High Court in “Bande Siva Shankara Srinivasa Prasad Vs Ravi Surya

Prakash Babu and others (dated 18-12-2015) reported in 2016(2) ALT 248”, wherein their Lordships held that __ 10 “It is essentially within the judicious discretion of the Court, depending on the individual facts and circumstances of the case

before it, to seek or not to seek expert opinion as to the

comparison of the disputed handwriting/signature with the admitted handwriting/ signature under Section 45 of the Indian

Evidence A ct, 1872. The Court is however not barred from sending the disputed handwriting/ signature for comparison to an expert merely because the time gap between the admitted handwriting/signature and the disputed handwriting/signature is long. The Court must however endeavour to impress upon the petitioning party that comparison of disputed handwritings/ signatures with admitted handwritings/signatures, separated by a time lag of 2 to 3 years, would be desirable so as to facilitate expert comparison in accordance with satisfactory standards. That being said, there can be no hard and fast rule about this aspect and it would ultimately be for the expert concerned to voice his conclusion as to whether the disputed handwriting/ signature and the admitted handwriting/signature are capable of comparison for a viable expert opinion.............” -Paragraph 15.

If he really wants to challenge his signatures in Ex.A.1, he has to file his documents like salary certificate issued by competent authority relating to the year 2008 prior to or later. He ought to have file the documents

Bank account opening form, Insurance Papers, Registered documents containing his signature or the other document under which he signed

before any office or authority.

[21]. Ex.A.1 contains the signature of Defendant in English, the Written

Statement also contains his signature. The Plaintiff filed Ex.A.3-

Registered document executed by the Defendant dated 09-07-2010, but he has not filed the original of it, requesting the Court to refer it for comparison of his signature with Ex.A.1.

A holistic reading of the facts of the case and the decision of the

Hon'ble High Court, states that whenever a party disputing his own

11 signature, is required to produce the document, which contains his admitted and contemporaneous signatures. Admitted in the sense, the documents which are registered documents, Bank account opening statements, pension papers, job services registers etc.

Contemporaneous in the sense, the documents containing the signatures are, one or two years prior to or later preferably.

[22]. I am relying on a decision of High Court of Madras in “C.G

Jayaraman and the South Indian Bank Ltd Vs C.Gangadharan (dated 03- 02-2011) reported in 2011 LawSuit(Mad) 469”, wherein the Court held that __ [24]. It is a trite proposition of law that courts should be reluctant to compare the disputed signatures with the admitted signatures as though they are experts by themselves. However, in certain circumstances, once the court resorts to comparison of the signatures invoking Section 73 of the Indian Evidence Act, by themselves, then certainly they should play the role of an handwriting expert in stricto sensu. A Judge cannot as per Section 73 of the Indian Evidence Act express his subjective satisfaction concerning the disputed signature. If the Judge desires to act as an expert in handwriting science, then he should assume the role of a handwriting expert in stricto sensu and analyse it by referring to the various characteristics as found in the treatises relating to

Science of Handwriting and arrive at a conclusion, so that objectively, the appellate court as well as the higher courts would be in a position to verify and analyse as to whether the trial court was justified in arriving at such a conclusion.”

I am also relying on a decision of our Hon'ble High Court in “M.Narsi

Reddy Vs. V.Raghu Ram Naidu and others (dated 2015-02-06) reported in 2015 (2) ALT 529=2015 (3) ALD, 234, wherein it was observed that- “The plaintiff cannot be put to the risk of sending such signatures for expert's opinion unless he has agreed for the proposal of the defendant....” 12 “....In the absence of the admitted signatures, it is not feasible to compare the disputed signatures on the pronote with the signatures which were subscribed by the petitioner during the pendency of the suit.”

In the case on hand, it is not the risk of the Plaintiff to send the suit document to the Expert for comparison with the signatures [of the

Defendant] with the admitted and contemporaneous since it is the burden on the part of the Defendant to prove his allegations by producing those documents, but he failed to do so. Therefore, this Court has no option except to invoke the Section 73 of the Indian Evidence Act under which the Court is given discretionary power to compare the signatures and hand-writings, though the Court cannot act as an expert, if the circumstances warrants.

[23]. A judge is permitted to compare the signature in view of the said provision. Though Ex.A.3 is the photostat copy, shows the signature of the Defendant similar to the signature in Ex.A.1.

Considering all the circumstances, evidence on record after appreciation of evidence, in view of the authorities referred to supra and the provision of law, the Court came to conclusion that the

Defendant has not disproved the pleadings in the plaint and he failed to prove his allegation that the suit document is forged, though the burden shifted to him, after discharging the burden by the Plaintiff by adducing evidence. Accordingly, I answer the Issues 1 and 2 in favour of the

Plaintiff and against the Defendant holding that the suit promissory note-Ex.A.1 is true, valid and binding on the Defendant, the Plaintiff is entitled to recover the suit claim. The allegation of the Defendant that the signatures in Ex.A.1 is either forged or fabricated is not sustainable.

13 [24]. ISSUE No.3

In view of my findings on material Issues 1 and 2, the suit of the

Plaintiff shall be decreed, in the circumstances with interest and costs.

[25]. In the result, the suit is decreed with costs, directing the

Defendant to pay Rs.24,41,500/- to the Plaintiff, and with Interest on

principal amount of Rs.14,25,000/- @ 12% p.a., from the date of filing

the suit to till date of Decree and future interest is @ 6% p.a., till realization.

Typed to my dictation, corrected and pronounced by me, in open court, this the 06th day of March, 2018.

Sd/-S.Ramesh

VII Addl.District Judge, Ongole.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Plaintiff : P.W.1: Ravula Padmavathi,

P.W.2: A.Prasada Rao,

P.W.3: D.Rosaiah.

For the Defendant:

D.W.1: A.V.S.Ramamohana Rao

DOCUMENTS MARKED

For the Plaintiff: Ex.A1 : Suit promissory note dated 08-10-2011 for Rs.60,000/-; Ex.A2 : Legal Notice (Office copy) dated 16-08-2014; Ex.A3 : Postal acknowledgment.

For the Defendant: --nil--

Sd/-S.Ramesh,

VII A.D.J.,

Ongole 14

Plaint presented on 10-02-2011, Plaint filed on 11-02-2011.

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE

PRAKASAM DISTRICT AT ONGOLE

Present: Sri S.Ramesh., VII Additional District Judge, Ongole.

Tuesday, the sixth (06th) day of March, 2018

ORIGINAL SUIT No.32 of 2011

====================== Between :

Ravula Padmavathi, w/o.Radhakrishna Murthy, age 40 years, R/o.D.No.35-3-69 (55/8), CRP Quarters, Ongole, Prakasam District.…… Plaintiff,

A N D

Aravapalli Venkata Seetharama Mohana Rao, s/o.Subba Rao, age 41 years, R/o.D.No.8-282, Sundar Nagar, Mangamur Road,Ongole, Prakasam District.…… Defendant.

This is a suit, filed by the Plaintiff, for recovery of money, from the Defendant, basing on promissory note, together with Interest and costs.

Valuation and Court Fee:

The suit is valued for the purpose of Court fee and jurisdiction is Rs.24,41,500/-, on which a court fee of Rs.14,926/- is paid under Section 20 of APCF and SV Act.

The cause of action for the suit arose on 18-02-2008, when the defendant borrowed an amount of Rs.14,25,000/- from the plaintiff for the purpose of his business and executed a promissory note, agreeing to repay the same with interest @ 24% p.a, in spite of repeated demands made by the Plaintiff, the defendant did not choose to repay the debt and postponed the same on one pretext or the other, when the plaintiff constrained to file the suit and at Ongole, where the suit transaction taken place and within the jurisdiction of this court.

The above numbered suit coming on 20-02-2018 for final hearing

before me, in the presence of Sri R.Kesava Rao- Advocate for Plaintiff

and of Sri P.Srinivasulu- Advocate for the Defendant, the matter having stood over for consideration till this day, the COURT DOTH ORDER AND DECREE as follows:

i) that the defendant do pay an amount of Rs.24,41,500/- to the Plaintiff with interest @12% p.a., from the date of filing the suit till the date of decree on principal amount of Rs.14,25,000/- and the future interest is @ 6% p.a., till realization; 15 ii) that the Defendant do also pay an amount of Rs.1,02,023- 00and the Defendant do bear his own costs of Rs.-NIL--;

Given under my hand and the seal of the court, this the 06th day of March, 2018.

VII Additional District Judge, Ongole.

Particulars of Costs:

Plaintiff Defendants (C.M.& F.C.not filed ) Vakalat: Rs. 2-00 Stamp on plaint : Rs.26,926-00 Process : 50-00 Type charges: Rs. 100-00 Advocate fee: Rs.74,945-00 Total Rs.: Rs.1,02,023-00

Sd/-S.Ramesh,

VII Addl.D.J., Ongole.

//True copy//

Principal Senior Civil Judge,

Ongole.

16

VII-ADJ, OGL, A.S.23 of 2014 Page No.1/13

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE

PRAKASAM DISTRICT AT ONGOLE

Present: Sri S.Ramesh, VII Additional District Judge, Prakasam District at Ongole.

Monday, the sixteenth (16th) day of September, 2019

APPEAL SUIT No.23 of 2014

====================

Between :

Ponugumati Srimannarayana, s/o.Chinnabbi, age 65 years, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Appellant,

A N D

Ponugumati Srinivasa Rao, s/o.Venkaiah, age 49 years, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Respondent.

// ON APPEAL FILED AGAINST THE DECREE AND JUDGMENT OF THE 1st ADDITIONAL JUNIOR CIVIL JUDGE'S COURT, ONGOLE, PRAKASAM DISTRICT, Dated 10-03-2014 in O.S.No.626 of 2007 //

Between :

Ponugumati Srinivasa Rao, s/o.Venkaiah, age 42 years, Cultivation, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Plaintiff.

A N D

Ponugumati Srimannarayana, s/o.Chinnabbi, age 58 years, Cultivation, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Defendant.

@ @ @ @ The above numbered matter coming before me for fnal hearing on 26-08-2019, in the presence of Sri Bandaru Lakshmi Narayana Rao- Advocate for Appellant and of Sri Panguluri Govindaiah- Advocate for the Respondent, the matter having stood over for consideration till this day and the court delivered the following :

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

============== The Defendant in the Original Suit [O.S] No.626 of 2007 on the fle of the 1st Additional Junior Civil Judgess Court, Ongole [hereinafter refers to as the ‘trial courts], has preferred this Appeal Suit [A.S].

VII-ADJ, OGL, A.S.23 of 2014 Page No.2/13 [1].The present Appeal has been fled under section 96 and Order

XLI, Rules 1 & 2 of the Civil Procedure Code (for brevity ‘C.P.Cs).

Appellant is the Defendant and Respondent is Plaintiff in the said suit.

For convenient disposal of this Appeal, in order to avoid any confusion, I would refer the parties to the Appeal as per their litigative status and ranking before the trial Court in the said O.S.

[2].The factual background as will appear from the Judgment of the trial Court need to be highlighted and is re-produced hereunder_

CLAIM OF THE PLAINTIFF_

(i).During the family partition [oral], the vacant site of ‘8s gadies, with Assessment No.801 of Konijedu [hereinfater refers to as the “schedule property”] being bounded by__

East : Ponugumati China Venkata Narasimham,

West : Raja bazar (veedhi),

North : Passgage,

South : Ponugumati Subbarao & Mandapati Srinivasarao; fell to the share of the Plaintiffss father, later in the oral partition between this Plaintiff and his brother, the schedule property fell to the share of the Plaintiff and since then he has been in possession and enjoyment of the same.

(ii). The Defendant got issued Exhibit [Ex.] A.1- Legal Notice dated 25- 11-2003, on receiving it, the plaintiff gave reply. The Defendant again got issued Ex.A.2- Legal Notice dated 12-04-2007 and this Plaintiff gave

Ex.A.3- Reply notice dated 05-05-2007.

(iii).As the Defendant, without right or interest in and over the property tried to interfere with the schedule property, the Plaintiff was constrained to fle suit, seeking the relief of Perpetual Injunction.

VII-ADJ, OGL, A.S.23 of 2014 Page No.3/13 [3].CONTENTION OF THE DEFENDANT__

(i).Father of the Plaintiff [by name Chinnabbi] fled suit as O.S.14 of 1968 before the Senior Civil Judgess Court, Ongole, it was dismissed in respect of all Items in the schedule therein except Item No.3 of schedule ‘Bs property.

(ii).Out of the 6 Defendants [in the said suit], the 2nd Defendant [D.2] who is senior paternal uncle of the Plaintiff, alone has fled the written statement which was adoped by the Defendants 1 to 3 & 5.

(iii)D.2 as D.W.1 admitted in his evidence [in the said suit] that the present suit schedule property fell to the share of said Chinnabbi, who is in possession of the same, therefore, it is not open to the Plaintiff who is son of the deceased 4th Defendant [D.4], since there was no pleading and evidence on his behalf, thus the suit is not maintainable.

[4]. Learned Judge of the trial court had framed/ settled three Issues [mentioned hereunder] for trial_

1. Whether the Plaintiff is in possession and enjoyment over the suit schedule property by virtue of oral family partition ?

2. Whether the Plaintiff is entitled to the relief of Permanent

Injuncation, as prayed for ?

3. To what relief ?

The trial court has recorded the oral and documentary evidence viz.,

P.W.ss 1 to 3, Exhibits [Ex.ss] A.1 to A.7 and D.W.ss 1 to 4; Ex.ss B.1 to

B.20 on behalf of the Plaintiff and Defendant respectively.

Learned Judge of the trial court, considering the oral and documentary evidence on record, after hearing arguments, had decreed the suit with cots, by granting perpetual injunction restraining the

Defendant from interfering with the possession of the Plaintiff in and over the schedule property.

VII-ADJ, OGL, A.S.23 of 2014 Page No.4/13 [5].Feeling aggrieved by the fndings in the Decree and Judgment passed against him, the Defendant has preferred this Appeal, under the following__

GROUNDS OF APPEAL (material points) in brief__

(i). The decree and Judgment passed by the trial court is contrary to law, weight of evidence, probabilities of the suit ;

(ii). the trial court didnst appreciate the evidence adduced by the parties properly with regard to earlier litigation ;

(iii). the trial court didnst appreciate Ex.A.7 which was issued by

Panchayat Secretary, as the office seal etc., are missing in it ;

(iv). as per Ex.A.6, the schedule property is to the extent of Ac 0-02 1/2 cents equivialent to 15 gadies, it was issued by the Mandal Surveyor,

Tangutur relating to S.No.196/P stands in the name of Punumati

Sujatha– wife of the Respondent, the document is nonest in the eye of law ;

(v). the trial court failed to see the Judgment in O.S.No.20 of 1968 fled by the 6th Defendant [D.6] in the said suit [for maintenance] against the said P.Chinnabbi, 27th Item of the plaint schedule is that of the suit in O.S.No.14 of 1968 ;

(vi). the trial court didnst appreciate Ex.B.11 which shows that the property is 9 gadies in total ;

(vii). the trial court didnst consider the evidence of D.W.3, Ex.ss A.4 and

B.14 ;

(viii). as per Ex.A.5- House Tax receipts, one Rama Kamaiahss name is mentioned over and above Executive Officer, but it stands in the name of Punugumati China Venkaiah ;

Hence the Appeal.

[6].Entire case record (material papers of the suit) relating to the

Appellant is called for the purpose of disposal of this Appeal according to law.

[7]. No additional evidence is adduced in this Appeal by either of the parties to the proceedings.

VII-ADJ, OGL, A.S.23 of 2014 Page No.5/13 [8].Heard arguments of learned counsel for the Appellant and the

Respondent.

[9].Now the points for my determination are_

1. Whether the Decree and Judgment passed by the ‘trial courts is factually and legally sustainable ?

2. Is it necessary to interfere with the fndings of the trial court with regard to answers and fndings on the Issues ?

The main suit is fled before the trial court seeking perpetual

Injunction. An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specifc acts.

Honsble Supreme Court in “Sopan Sukhdeo Sable Vs Assistant

Charity Commissioner (23-01-2004), reported in A.I.R 2004 S.C 1801” has held that__ “[15] There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.”

Honsble Supreme Court in “Balkrishna Dattatreya Galande Vs

Balkrishna Rambharose Gupta and Another (06-02-2019), A.I.R 2019

S.C 933” has held that__ “[9]. ……………. The burden of proof lies upon the frst respondent- plaintiff to prove that he was in actual and physical possession of the property on the date of suit………..”.

VII-ADJ, OGL, A.S.23 of 2014 Page No.6/13 [10]. The plaintiff pleaded in the plaint that Kondaiah [grand father of the plaintiff] and his brother Chinnabbi are brothers, as per the Decree of the suit in O.S.No.14 of1968 fled by the said Chinnabbi, the schedule property fell to the share of plaintiffss father, but in oral partition, the schedule property fell to his share during the oral partition between him and his brother.

The pleadings of the plaintiff are clear that, he took distinct pleas in the plaint. Firstly, he pleaded that the schedule property fell to the share of his fatherss family, but in oral partition.

It itself is an indication that the schedule property was not allotted to the father of the plaintiff, individually, even as per the decree referred by the plaintiff in the suit, the reason is the boundaries as pleaded by the plaintiff in the plaint are not tallying with the boundaries as shown in Ex.B20 – Decree with the schedule in OS.No.14 of 1968

dated: 27-07-1974 and the boundaries are as follows:-

House to the extent of 6 gadies with a thatched house of 2 gadies in it, in Konijedu village with the boundaries:-

East : House of Mandapati Raghavulu

South : Wall of the cattle shed of Mandapati Subaiah

West : Bazaar

North : Bazaar for the uses of plaintiff and defendants.

When the plaintiff in O.S.No.14 of 1968 pleaded in the plaint that item

No.2 of schedule – C property is only to the extent of 6 gadies, claiming more extent [8 gadies] thorugh the suit fled in the year 2007 is totally incorrect.

One, may takes a plea that there was more extent, now he is claiming lesser extent as some extent might have merged in the road.

Admittedly, there are passage and main road on North and West to the property. In this context, the claim of the plaintiff is not based on either possession or title to the total extent claimed in the suit.

VII-ADJ, OGL, A.S.23 of 2014 Page No.7/13 [11]. The Defendant in Page No.2 of his written statement pleaded and for proper appreciation of evidence, the relevant pleading is extracted hereunder_ “….. 2nd defendant fled written statement which was adopted by defendants 1, 2, 3 & 5. In support of their pleading 2nd defendant, the senior paternal uncle of the plaintiff has categorically admitted in his evidence as DW.1 that the present suit schedule property fell to the share of Chinnabbi i.e., father of this defendant and he is in possession and enjoyment of the same.

Now, the plaintiff is estopped to contend that the plaint schedule property is his exclusive of property and he has been in possession and enjoyment of the same”.

a). The Plaintiff as PW.1 fled affidavit towards his examination in-chief, stepped into the witness box stated to that of his plea in the plaint and that Exs. A.1 & A.2 are the Legal notice got issued by the defendant;

Ex.A.3 is the reply notice to Ex.A2; Exs. A.4 & A.7 are certifcates issued by Panchayat Secretary, Gram Panchayat; Ex.A.5 is House tax demand notice and Ex.A.6 is rough sketch prepared by Mandal

Surveyor.

b). PW.2 an independent witness by name A.Krishna said in his affidavit feld for his examination in-chief that the schedule property is ancestral property of the plaintiff.

He deposed in his cross-examination that he came to know about the site through the elders.

The testimony of PW.2 appears as vague and artifcial, as he himself admitted that he came to know about the property through villagers, therefore, he has no personal knowledge as to who is in possession and enjoyment of the property as owner of it.

c). Another witness R.Seetha Ramaiah as PW.3 also stated that the defendants have no right in the schedule property and deposed in his

VII-ADJ, OGL, A.S.23 of 2014 Page No.8/13 cross-examination that he does not know what is the extent of the suit schedule site, therefore, the testimony of PW.3 pales into insignifcance.

d). The defendant also fled affidavit towards his examination in-chief, stepped into the witness box and stated as DW.1 to that of his contention in the written statement and about the Exs. B1 to B20.

Exs. B1, B2 & B20 are certifed copies of Decree with schedule, written statement of the 2nd defendant and Judgment in O.S.No.14 of 1968 and deposed in his cross-examination that item No.2 of C-schedule property in O.S.No.14 of 1968 is the schedule property herein, but the extent during 1969 was ‘6 gadiess only.

It is not the case of the either of the parties that another ‘2 gadiess site was purchased by them or their ancestors.

[12]. The defendant got fled the chief-affidavit of a witness by name

Mandapati Raghavulu son of Yallamanda to be examined as DW.2, but in the affidavit, the said Raghavulu neither affixed thumb mark nor signed in it, the thumb mark is affixed is the mark of Yallamanda.

The thumb mark appears smudged, therefore, his evidence carry no weight.

In fact, it is not the dispute by either of the parties regarding thumb mark, but under section 73 of Indian Evidence Act, the court is empowered to scrutinize the evidence, whenever there is dispute. It is true, the court cannot act as an expert.

e). The Panchayat Secretary of Konijedu by name G.V.Rangaiah as

DW.3 deposed that he has issued Ex.A.4. When coming to cross- examination, he stated that, as per Exs. A.4 and B.14 those are issued by V.V.N.Satyanarayana, Panchayat Secretary. The testimony of DW.3 is totally incorrect, as per Ex.A.4 it was issued by Panchayat Secretary

V.V.N.Satyanaraya, but not by DW.3 herein.

VII-ADJ, OGL, A.S.23 of 2014 Page No.9/13

f). The then Mandal Surveyor, Tangutur Mandal by name

K.Kakkeswara Rao deposed that, he measured the property and mentioned the same in Ex.A.6 and deposed in his cross-examination that as per Ex.A6 – Schedule property is plot No.3, but there is no proof to prove it and as per the records, the property stands in the name of

Ponugumati Sujatha [wife of the plaintiff].

The evidence of DW.4 – Official witness disproved the case set up by the plaintiff. As per the plaint, schedule property is his ancestral property, therefore, it is to be recorded in panchayat records either in the name of him, his father or grand father or his brother, if the case set up by him true and correct that the property fell to the share of his father, subsequently to fell to his brother and in oral partition, it fell to his share.

[13]. Learned Judge of the trial court gave fnding that some documents fled by the defendant didnst bind the plaintiff.

It appears that the trial court placed burden of proof to some extent on the defendant, but it is impermissible.

Honsble Supreme Court in “ Union of India & others Vs Vasavi Co-

op Housing Society Limited and others (07-01-2004), reported in A.I.R 2014 S.C 937” has held that__ “[12] It is trite law that, in a suit for declaration o f title, burden always lies on the plaintiff to make out and establish a clear ca s e for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.”

Therefore, the plaintiff has to prove his case by adducing reliable and cogent evidence and should not be permitted to take weakness in the case of the defendant.

VII-ADJ, OGL, A.S.23 of 2014 Page No.10/13 [14]. The Plaintiff – PW.1 deposed in his cross-examination that the schedule property and other properties are the ancestral properties of

Chinna Kondaiah and Chinnabbi.

Admittedly, both the parties are relying on Exs. B.1 & B.20, the said suit was fled for partition, it appears that the schedule property, if it as part and parcel of item No.2 of schedule-C, was in joint and constructive possession of the parties of the suit. The plaintiff has not proved his case that the schedule property was allotted to his fatherss (Branch).

The plaintiff as PW.1 admitted in his cross-examination, for proper appreciation of evidence, the said evidence portion is extracted hereunder_ “……My father acquired suit site through his father, but there is no documentary proof to show the same”.

PW.1 deposed further in his cross-examination, that this defendant raised objection regarding the schedule property for the frst time about fve (5) years back.

Ex.A1 is the legal notice got issued by the defendant to the plaintiff, claiming peaceful possession and enjoyment of the schedule property, this document shows that as on the date of Ex.A1 i.e., on 25- 11-2003, the defendant claimed possession as well as title to the property, but the plaintiff herein has not issued any reply notice and became silent for about four (4) years, this defendant again issued

Ex.A2 on 12-04-2007 informing the plaintiff, not to interfere with the possession, later, i.e., almost all four (4) years of Ex.A1,he gave Ex.A3 –

Reply notice to [Ex.A2]. The circumstances depicts that the title of the plaintiff is denied through Ex.A1 in November, 2003 itself, but after receiving Ex.A3, the plaintiff simply fled this suit, as if, he is in possession and enjoyment of the property.

VII-ADJ, OGL, A.S.23 of 2014 Page No.11/13

The Honsble Supreme Court in “Ananthula Sudhakar Vs P.Buchi

Reddy (25-03-2008), reported in A.I.R 2008 S.C 2033” has held that__ “[12] To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. W here the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the fnding on possession. But in cases where de-jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a fnding thereon, it will not be possible to decide the issue of possession.

(c) But a fnding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specifc, or implied as noticed in

Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a fnding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.

VII-ADJ, OGL, A.S.23 of 2014 Page No.12/13

But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

In the case on hand also, the total claim of the plaintiff is based on Exs.

A4 to A7, but DW.3 is not the person, who issued it Exs. A4 & A5 are relating to the house property stands in the name of Chinna Venkaiah;

Ex.A6 is not the authenticated extract from the Field Measurement

Book and Ex.A6 doesnst contain the signature of the M.R.O and the office seal, Ex.A7 stands in the name of Ponugumati Sujatha, but this document does not reveal the assessment number or door number of the property allegedly exhibited in the schedule property, the evidence of PW.1 are safe to discard the plaint.

Considering all the facts and circumstances of the case, this court came to conclusion that the reasons assigned by the trial court holding that the plaintiff is in possession and enjoyment of the property are not based on sound, legal principles, the plaintiff is not in possession and enjoyment of the schedule property as on the date of fling of the suit and he is not entitled for the relief on injunction. The points 1 & 2 are answered, holding that the decree and judgment passed by the trial court and fndings thereon are not factually and legally sustainable and it is necessary to set aside the decree and judgment passed by the trial court.

[15]. In the result, the Appeal fled by the Defendant/Appellant is allowed, setting aside the Decree and Judgment passed by the trial

VII-ADJ, OGL, A.S.23 of 2014 Page No.13/13 court [Ist Additional Junior Civil Judgess Court, Ongole in O.S.No.626 of 2007 dated: 10-03-2014], consequently, the suit fled by the plaintiff is dismissed.

Both the parties shall bear their respective costs throughout.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open court, on this the 16th day of September,

2019.

Sd/-.S.Ramesh,

VII Additional District Judge, Ongole.

Copy to:

1. The 1st Addl. Junior Civil Judge, Ongole.

2. Spare [for record purpose].

// True copy //

Chief Administrative Officer,

VII-Addl. District Court, Ongole.

VII-ADJ, OGL, A.S.23 of 2014 Page No.1/13

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE

PRAKASAM DISTRICT AT ONGOLE

Present: Sri S.Ramesh, VII Additional District Judge, Prakasam District at Ongole.

Monday, the sixteenth (16th) day of September, 2019

APPEAL SUIT No.23 of 2014

====================

Between :

Ponugumati Srimannarayana, s/o.Chinnabbi, age 65 years, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Appellant,

A N D

Ponugumati Srinivasa Rao, s/o.Venkaiah, age 49 years, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Respondent.

// ON APPEAL FILED AGAINST THE DECREE AND JUDGMENT OF THE 1st ADDITIONAL JUNIOR CIVIL JUDGE'S COURT, ONGOLE, PRAKASAM DISTRICT, Dated 10-03-2014 in O.S.No.626 of 2007 //

Between :

Ponugumati Srinivasa Rao, s/o.Venkaiah, age 42 years, Cultivation, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Plaintiff.

A N D

Ponugumati Srimannarayana, s/o.Chinnabbi, age 58 years, Cultivation, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Defendant.

@ @ @ @ The above numbered matter coming before me for fnal hearing on 26-08-2019, in the presence of Sri Bandaru Lakshmi Narayana Rao- Advocate for Appellant and of Sri Panguluri Govindaiah- Advocate for the Respondent, the matter having stood over for consideration till this day and the court delivered the following :

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

============== The Defendant in the Original Suit [O.S] No.626 of 2007 on the fle of the 1st Additional Junior Civil Judgess Court, Ongole [hereinafter refers to as the ‘trial courts], has preferred this Appeal Suit [A.S].

VII-ADJ, OGL, A.S.23 of 2014 Page No.2/13 [1].The present Appeal has been fled under section 96 and Order

XLI, Rules 1 & 2 of the Civil Procedure Code (for brevity ‘C.P.Cs).

Appellant is the Defendant and Respondent is Plaintiff in the said suit.

For convenient disposal of this Appeal, in order to avoid any confusion, I would refer the parties to the Appeal as per their litigative status and ranking before the trial Court in the said O.S.

[2].The factual background as will appear from the Judgment of the trial Court need to be highlighted and is re-produced hereunder_

CLAIM OF THE PLAINTIFF_

(i).During the family partition [oral], the vacant site of ‘8s gadies, with Assessment No.801 of Konijedu [hereinfater refers to as the “schedule property”] being bounded by__

East : Ponugumati China Venkata Narasimham,

West : Raja bazar (veedhi),

North : Passgage,

South : Ponugumati Subbarao & Mandapati Srinivasarao; fell to the share of the Plaintiffss father, later in the oral partition between this Plaintiff and his brother, the schedule property fell to the share of the Plaintiff and since then he has been in possession and enjoyment of the same.

(ii). The Defendant got issued Exhibit [Ex.] A.1- Legal Notice dated 25- 11-2003, on receiving it, the plaintiff gave reply. The Defendant again got issued Ex.A.2- Legal Notice dated 12-04-2007 and this Plaintiff gave

Ex.A.3- Reply notice dated 05-05-2007.

(iii).As the Defendant, without right or interest in and over the property tried to interfere with the schedule property, the Plaintiff was constrained to fle suit, seeking the relief of Perpetual Injunction.

VII-ADJ, OGL, A.S.23 of 2014 Page No.3/13 [3].CONTENTION OF THE DEFENDANT__

(i).Father of the Plaintiff [by name Chinnabbi] fled suit as O.S.14 of 1968 before the Senior Civil Judgess Court, Ongole, it was dismissed in respect of all Items in the schedule therein except Item No.3 of schedule ‘Bs property.

(ii).Out of the 6 Defendants [in the said suit], the 2nd Defendant [D.2] who is senior paternal uncle of the Plaintiff, alone has fled the written statement which was adoped by the Defendants 1 to 3 & 5.

(iii)D.2 as D.W.1 admitted in his evidence [in the said suit] that the present suit schedule property fell to the share of said Chinnabbi, who is in possession of the same, therefore, it is not open to the Plaintiff who is son of the deceased 4th Defendant [D.4], since there was no pleading and evidence on his behalf, thus the suit is not maintainable.

[4]. Learned Judge of the trial court had framed/ settled three Issues [mentioned hereunder] for trial_

1. Whether the Plaintiff is in possession and enjoyment over the suit schedule property by virtue of oral family partition ?

2. Whether the Plaintiff is entitled to the relief of Permanent

Injuncation, as prayed for ?

3. To what relief ?

The trial court has recorded the oral and documentary evidence viz.,

P.W.ss 1 to 3, Exhibits [Ex.ss] A.1 to A.7 and D.W.ss 1 to 4; Ex.ss B.1 to

B.20 on behalf of the Plaintiff and Defendant respectively.

Learned Judge of the trial court, considering the oral and documentary evidence on record, after hearing arguments, had decreed the suit with cots, by granting perpetual injunction restraining the

Defendant from interfering with the possession of the Plaintiff in and over the schedule property.

VII-ADJ, OGL, A.S.23 of 2014 Page No.4/13 [5].Feeling aggrieved by the fndings in the Decree and Judgment passed against him, the Defendant has preferred this Appeal, under the following__

GROUNDS OF APPEAL (material points) in brief__

(i). The decree and Judgment passed by the trial court is contrary to law, weight of evidence, probabilities of the suit ;

(ii). the trial court didnst appreciate the evidence adduced by the parties properly with regard to earlier litigation ;

(iii). the trial court didnst appreciate Ex.A.7 which was issued by

Panchayat Secretary, as the office seal etc., are missing in it ;

(iv). as per Ex.A.6, the schedule property is to the extent of Ac 0-02 1/2 cents equivialent to 15 gadies, it was issued by the Mandal Surveyor,

Tangutur relating to S.No.196/P stands in the name of Punumati

Sujatha– wife of the Respondent, the document is nonest in the eye of law ;

(v). the trial court failed to see the Judgment in O.S.No.20 of 1968 fled by the 6th Defendant [D.6] in the said suit [for maintenance] against the said P.Chinnabbi, 27th Item of the plaint schedule is that of the suit in O.S.No.14 of 1968 ;

(vi). the trial court didnst appreciate Ex.B.11 which shows that the property is 9 gadies in total ;

(vii). the trial court didnst consider the evidence of D.W.3, Ex.ss A.4 and

B.14 ;

(viii). as per Ex.A.5- House Tax receipts, one Rama Kamaiahss name is mentioned over and above Executive Officer, but it stands in the name of Punugumati China Venkaiah ;

Hence the Appeal.

[6].Entire case record (material papers of the suit) relating to the

Appellant is called for the purpose of disposal of this Appeal according to law.

[7]. No additional evidence is adduced in this Appeal by either of the parties to the proceedings.

VII-ADJ, OGL, A.S.23 of 2014 Page No.5/13 [8].Heard arguments of learned counsel for the Appellant and the

Respondent.

[9].Now the points for my determination are_

1. Whether the Decree and Judgment passed by the ‘trial courts is factually and legally sustainable ?

2. Is it necessary to interfere with the fndings of the trial court with regard to answers and fndings on the Issues ?

The main suit is fled before the trial court seeking perpetual

Injunction. An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specifc acts.

Honsble Supreme Court in “Sopan Sukhdeo Sable Vs Assistant

Charity Commissioner (23-01-2004), reported in A.I.R 2004 S.C 1801” has held that__ “[15] There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.”

Honsble Supreme Court in “Balkrishna Dattatreya Galande Vs

Balkrishna Rambharose Gupta and Another (06-02-2019), A.I.R 2019

S.C 933” has held that__ “[9]. ……………. The burden of proof lies upon the frst respondent- plaintiff to prove that he was in actual and physical possession of the property on the date of suit………..”.

VII-ADJ, OGL, A.S.23 of 2014 Page No.6/13 [10]. The plaintiff pleaded in the plaint that Kondaiah [grand father of the plaintiff] and his brother Chinnabbi are brothers, as per the Decree of the suit in O.S.No.14 of1968 fled by the said Chinnabbi, the schedule property fell to the share of plaintiffss father, but in oral partition, the schedule property fell to his share during the oral partition between him and his brother.

The pleadings of the plaintiff are clear that, he took distinct pleas in the plaint. Firstly, he pleaded that the schedule property fell to the share of his fatherss family, but in oral partition.

It itself is an indication that the schedule property was not allotted to the father of the plaintiff, individually, even as per the decree referred by the plaintiff in the suit, the reason is the boundaries as pleaded by the plaintiff in the plaint are not tallying with the boundaries as shown in Ex.B20 – Decree with the schedule in OS.No.14 of 1968

dated: 27-07-1974 and the boundaries are as follows:-

House to the extent of 6 gadies with a thatched house of 2 gadies in it, in Konijedu village with the boundaries:-

East : House of Mandapati Raghavulu

South : Wall of the cattle shed of Mandapati Subaiah

West : Bazaar

North : Bazaar for the uses of plaintiff and defendants.

When the plaintiff in O.S.No.14 of 1968 pleaded in the plaint that item

No.2 of schedule – C property is only to the extent of 6 gadies, claiming more extent [8 gadies] thorugh the suit fled in the year 2007 is totally incorrect.

One, may takes a plea that there was more extent, now he is claiming lesser extent as some extent might have merged in the road.

Admittedly, there are passage and main road on North and West to the property. In this context, the claim of the plaintiff is not based on either possession or title to the total extent claimed in the suit.

VII-ADJ, OGL, A.S.23 of 2014 Page No.7/13 [11]. The Defendant in Page No.2 of his written statement pleaded and for proper appreciation of evidence, the relevant pleading is extracted hereunder_ “….. 2nd defendant fled written statement which was adopted by defendants 1, 2, 3 & 5. In support of their pleading 2nd defendant, the senior paternal uncle of the plaintiff has categorically admitted in his evidence as DW.1 that the present suit schedule property fell to the share of Chinnabbi i.e., father of this defendant and he is in possession and enjoyment of the same.

Now, the plaintiff is estopped to contend that the plaint schedule property is his exclusive of property and he has been in possession and enjoyment of the same”.

a). The Plaintiff as PW.1 fled affidavit towards his examination in-chief, stepped into the witness box stated to that of his plea in the plaint and that Exs. A.1 & A.2 are the Legal notice got issued by the defendant;

Ex.A.3 is the reply notice to Ex.A2; Exs. A.4 & A.7 are certifcates issued by Panchayat Secretary, Gram Panchayat; Ex.A.5 is House tax demand notice and Ex.A.6 is rough sketch prepared by Mandal

Surveyor.

b). PW.2 an independent witness by name A.Krishna said in his affidavit feld for his examination in-chief that the schedule property is ancestral property of the plaintiff.

He deposed in his cross-examination that he came to know about the site through the elders.

The testimony of PW.2 appears as vague and artifcial, as he himself admitted that he came to know about the property through villagers, therefore, he has no personal knowledge as to who is in possession and enjoyment of the property as owner of it.

c). Another witness R.Seetha Ramaiah as PW.3 also stated that the defendants have no right in the schedule property and deposed in his

VII-ADJ, OGL, A.S.23 of 2014 Page No.8/13 cross-examination that he does not know what is the extent of the suit schedule site, therefore, the testimony of PW.3 pales into insignifcance.

d). The defendant also fled affidavit towards his examination in-chief, stepped into the witness box and stated as DW.1 to that of his contention in the written statement and about the Exs. B1 to B20.

Exs. B1, B2 & B20 are certifed copies of Decree with schedule, written statement of the 2nd defendant and Judgment in O.S.No.14 of 1968 and deposed in his cross-examination that item No.2 of C-schedule property in O.S.No.14 of 1968 is the schedule property herein, but the extent during 1969 was ‘6 gadiess only.

It is not the case of the either of the parties that another ‘2 gadiess site was purchased by them or their ancestors.

[12]. The defendant got fled the chief-affidavit of a witness by name

Mandapati Raghavulu son of Yallamanda to be examined as DW.2, but in the affidavit, the said Raghavulu neither affixed thumb mark nor signed in it, the thumb mark is affixed is the mark of Yallamanda.

The thumb mark appears smudged, therefore, his evidence carry no weight.

In fact, it is not the dispute by either of the parties regarding thumb mark, but under section 73 of Indian Evidence Act, the court is empowered to scrutinize the evidence, whenever there is dispute. It is true, the court cannot act as an expert.

e). The Panchayat Secretary of Konijedu by name G.V.Rangaiah as

DW.3 deposed that he has issued Ex.A.4. When coming to cross- examination, he stated that, as per Exs. A.4 and B.14 those are issued by V.V.N.Satyanarayana, Panchayat Secretary. The testimony of DW.3 is totally incorrect, as per Ex.A.4 it was issued by Panchayat Secretary

V.V.N.Satyanaraya, but not by DW.3 herein.

VII-ADJ, OGL, A.S.23 of 2014 Page No.9/13

f). The then Mandal Surveyor, Tangutur Mandal by name

K.Kakkeswara Rao deposed that, he measured the property and mentioned the same in Ex.A.6 and deposed in his cross-examination that as per Ex.A6 – Schedule property is plot No.3, but there is no proof to prove it and as per the records, the property stands in the name of

Ponugumati Sujatha [wife of the plaintiff].

The evidence of DW.4 – Official witness disproved the case set up by the plaintiff. As per the plaint, schedule property is his ancestral property, therefore, it is to be recorded in panchayat records either in the name of him, his father or grand father or his brother, if the case set up by him true and correct that the property fell to the share of his father, subsequently to fell to his brother and in oral partition, it fell to his share.

[13]. Learned Judge of the trial court gave fnding that some documents fled by the defendant didnst bind the plaintiff.

It appears that the trial court placed burden of proof to some extent on the defendant, but it is impermissible.

Honsble Supreme Court in “ Union of India & others Vs Vasavi Co-

op Housing Society Limited and others (07-01-2004), reported in A.I.R 2014 S.C 937” has held that__ “[12] It is trite law that, in a suit for declaration o f title, burden always lies on the plaintiff to make out and establish a clear ca s e for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.”

Therefore, the plaintiff has to prove his case by adducing reliable and cogent evidence and should not be permitted to take weakness in the case of the defendant.

VII-ADJ, OGL, A.S.23 of 2014 Page No.10/13 [14]. The Plaintiff – PW.1 deposed in his cross-examination that the schedule property and other properties are the ancestral properties of

Chinna Kondaiah and Chinnabbi.

Admittedly, both the parties are relying on Exs. B.1 & B.20, the said suit was fled for partition, it appears that the schedule property, if it as part and parcel of item No.2 of schedule-C, was in joint and constructive possession of the parties of the suit. The plaintiff has not proved his case that the schedule property was allotted to his fatherss (Branch).

The plaintiff as PW.1 admitted in his cross-examination, for proper appreciation of evidence, the said evidence portion is extracted hereunder_ “……My father acquired suit site through his father, but there is no documentary proof to show the same”.

PW.1 deposed further in his cross-examination, that this defendant raised objection regarding the schedule property for the frst time about fve (5) years back.

Ex.A1 is the legal notice got issued by the defendant to the plaintiff, claiming peaceful possession and enjoyment of the schedule property, this document shows that as on the date of Ex.A1 i.e., on 25- 11-2003, the defendant claimed possession as well as title to the property, but the plaintiff herein has not issued any reply notice and became silent for about four (4) years, this defendant again issued

Ex.A2 on 12-04-2007 informing the plaintiff, not to interfere with the possession, later, i.e., almost all four (4) years of Ex.A1,he gave Ex.A3 –

Reply notice to [Ex.A2]. The circumstances depicts that the title of the plaintiff is denied through Ex.A1 in November, 2003 itself, but after receiving Ex.A3, the plaintiff simply fled this suit, as if, he is in possession and enjoyment of the property.

VII-ADJ, OGL, A.S.23 of 2014 Page No.11/13

The Honsble Supreme Court in “Ananthula Sudhakar Vs P.Buchi

Reddy (25-03-2008), reported in A.I.R 2008 S.C 2033” has held that__ “[12] To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. W here the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the fnding on possession. But in cases where de-jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a fnding thereon, it will not be possible to decide the issue of possession.

(c) But a fnding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specifc, or implied as noticed in

Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a fnding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.

VII-ADJ, OGL, A.S.23 of 2014 Page No.12/13

But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

In the case on hand also, the total claim of the plaintiff is based on Exs.

A4 to A7, but DW.3 is not the person, who issued it Exs. A4 & A5 are relating to the house property stands in the name of Chinna Venkaiah;

Ex.A6 is not the authenticated extract from the Field Measurement

Book and Ex.A6 doesnst contain the signature of the M.R.O and the office seal, Ex.A7 stands in the name of Ponugumati Sujatha, but this document does not reveal the assessment number or door number of the property allegedly exhibited in the schedule property, the evidence of PW.1 are safe to discard the plaint.

Considering all the facts and circumstances of the case, this court came to conclusion that the reasons assigned by the trial court holding that the plaintiff is in possession and enjoyment of the property are not based on sound, legal principles, the plaintiff is not in possession and enjoyment of the schedule property as on the date of fling of the suit and he is not entitled for the relief on injunction. The points 1 & 2 are answered, holding that the decree and judgment passed by the trial court and fndings thereon are not factually and legally sustainable and it is necessary to set aside the decree and judgment passed by the trial court.

[15]. In the result, the Appeal fled by the Defendant/Appellant is allowed, setting aside the Decree and Judgment passed by the trial

VII-ADJ, OGL, A.S.23 of 2014 Page No.13/13 court [Ist Additional Junior Civil Judgess Court, Ongole in O.S.No.626 of 2007 dated: 10-03-2014], consequently, the suit fled by the plaintiff is dismissed.

Both the parties shall bear their respective costs throughout.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open court, on this the 16th day of September,

2019.

Sd/-.S.Ramesh,

VII Additional District Judge, Ongole.

Copy to:

1. The 1st Addl. Junior Civil Judge, Ongole.

2. Spare [for record purpose].

// True copy //

Chief Administrative Officer,

VII-Addl. District Court, Ongole.

VII-ADJ, OGL, A.S.23 of 2014 Page No.1/13

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE

PRAKASAM DISTRICT AT ONGOLE

Present: Sri S.Ramesh, VII Additional District Judge, Prakasam District at Ongole.

Monday, the sixteenth (16th) day of September, 2019

APPEAL SUIT No.23 of 2014

====================

Between :

Ponugumati Srimannarayana, s/o.Chinnabbi, age 65 years, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Appellant,

A N D

Ponugumati Srinivasa Rao, s/o.Venkaiah, age 49 years, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Respondent.

// ON APPEAL FILED AGAINST THE DECREE AND JUDGMENT OF THE 1st ADDITIONAL JUNIOR CIVIL JUDGE'S COURT, ONGOLE, PRAKASAM DISTRICT, Dated 10-03-2014 in O.S.No.626 of 2007 //

Between :

Ponugumati Srinivasa Rao, s/o.Venkaiah, age 42 years, Cultivation, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Plaintiff.

A N D

Ponugumati Srimannarayana, s/o.Chinnabbi, age 58 years, Cultivation, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Defendant.

@ @ @ @ The above numbered matter coming before me for fnal hearing on 26-08-2019, in the presence of Sri Bandaru Lakshmi Narayana Rao- Advocate for Appellant and of Sri Panguluri Govindaiah- Advocate for the Respondent, the matter having stood over for consideration till this day and the court delivered the following :

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

============== The Defendant in the Original Suit [O.S] No.626 of 2007 on the fle of the 1st Additional Junior Civil Judgess Court, Ongole [hereinafter refers to as the ‘trial courts], has preferred this Appeal Suit [A.S].

VII-ADJ, OGL, A.S.23 of 2014 Page No.2/13 [1].The present Appeal has been fled under section 96 and Order

XLI, Rules 1 & 2 of the Civil Procedure Code (for brevity ‘C.P.Cs).

Appellant is the Defendant and Respondent is Plaintiff in the said suit.

For convenient disposal of this Appeal, in order to avoid any confusion, I would refer the parties to the Appeal as per their litigative status and ranking before the trial Court in the said O.S.

[2].The factual background as will appear from the Judgment of the trial Court need to be highlighted and is re-produced hereunder_

CLAIM OF THE PLAINTIFF_

(i).During the family partition [oral], the vacant site of ‘8s gadies, with Assessment No.801 of Konijedu [hereinfater refers to as the “schedule property”] being bounded by__

East : Ponugumati China Venkata Narasimham,

West : Raja bazar (veedhi),

North : Passgage,

South : Ponugumati Subbarao & Mandapati Srinivasarao; fell to the share of the Plaintiffss father, later in the oral partition between this Plaintiff and his brother, the schedule property fell to the share of the Plaintiff and since then he has been in possession and enjoyment of the same.

(ii). The Defendant got issued Exhibit [Ex.] A.1- Legal Notice dated 25- 11-2003, on receiving it, the plaintiff gave reply. The Defendant again got issued Ex.A.2- Legal Notice dated 12-04-2007 and this Plaintiff gave

Ex.A.3- Reply notice dated 05-05-2007.

(iii).As the Defendant, without right or interest in and over the property tried to interfere with the schedule property, the Plaintiff was constrained to fle suit, seeking the relief of Perpetual Injunction.

VII-ADJ, OGL, A.S.23 of 2014 Page No.3/13 [3].CONTENTION OF THE DEFENDANT__

(i).Father of the Plaintiff [by name Chinnabbi] fled suit as O.S.14 of 1968 before the Senior Civil Judgess Court, Ongole, it was dismissed in respect of all Items in the schedule therein except Item No.3 of schedule ‘Bs property.

(ii).Out of the 6 Defendants [in the said suit], the 2nd Defendant [D.2] who is senior paternal uncle of the Plaintiff, alone has fled the written statement which was adoped by the Defendants 1 to 3 & 5.

(iii)D.2 as D.W.1 admitted in his evidence [in the said suit] that the present suit schedule property fell to the share of said Chinnabbi, who is in possession of the same, therefore, it is not open to the Plaintiff who is son of the deceased 4th Defendant [D.4], since there was no pleading and evidence on his behalf, thus the suit is not maintainable.

[4]. Learned Judge of the trial court had framed/ settled three Issues [mentioned hereunder] for trial_

1. Whether the Plaintiff is in possession and enjoyment over the suit schedule property by virtue of oral family partition ?

2. Whether the Plaintiff is entitled to the relief of Permanent

Injuncation, as prayed for ?

3. To what relief ?

The trial court has recorded the oral and documentary evidence viz.,

P.W.ss 1 to 3, Exhibits [Ex.ss] A.1 to A.7 and D.W.ss 1 to 4; Ex.ss B.1 to

B.20 on behalf of the Plaintiff and Defendant respectively.

Learned Judge of the trial court, considering the oral and documentary evidence on record, after hearing arguments, had decreed the suit with cots, by granting perpetual injunction restraining the

Defendant from interfering with the possession of the Plaintiff in and over the schedule property.

VII-ADJ, OGL, A.S.23 of 2014 Page No.4/13 [5].Feeling aggrieved by the fndings in the Decree and Judgment passed against him, the Defendant has preferred this Appeal, under the following__

GROUNDS OF APPEAL (material points) in brief__

(i). The decree and Judgment passed by the trial court is contrary to law, weight of evidence, probabilities of the suit ;

(ii). the trial court didnst appreciate the evidence adduced by the parties properly with regard to earlier litigation ;

(iii). the trial court didnst appreciate Ex.A.7 which was issued by

Panchayat Secretary, as the office seal etc., are missing in it ;

(iv). as per Ex.A.6, the schedule property is to the extent of Ac 0-02 1/2 cents equivialent to 15 gadies, it was issued by the Mandal Surveyor,

Tangutur relating to S.No.196/P stands in the name of Punumati

Sujatha– wife of the Respondent, the document is nonest in the eye of law ;

(v). the trial court failed to see the Judgment in O.S.No.20 of 1968 fled by the 6th Defendant [D.6] in the said suit [for maintenance] against the said P.Chinnabbi, 27th Item of the plaint schedule is that of the suit in O.S.No.14 of 1968 ;

(vi). the trial court didnst appreciate Ex.B.11 which shows that the property is 9 gadies in total ;

(vii). the trial court didnst consider the evidence of D.W.3, Ex.ss A.4 and

B.14 ;

(viii). as per Ex.A.5- House Tax receipts, one Rama Kamaiahss name is mentioned over and above Executive Officer, but it stands in the name of Punugumati China Venkaiah ;

Hence the Appeal.

[6].Entire case record (material papers of the suit) relating to the

Appellant is called for the purpose of disposal of this Appeal according to law.

[7]. No additional evidence is adduced in this Appeal by either of the parties to the proceedings.

VII-ADJ, OGL, A.S.23 of 2014 Page No.5/13 [8].Heard arguments of learned counsel for the Appellant and the

Respondent.

[9].Now the points for my determination are_

1. Whether the Decree and Judgment passed by the ‘trial courts is factually and legally sustainable ?

2. Is it necessary to interfere with the fndings of the trial court with regard to answers and fndings on the Issues ?

The main suit is fled before the trial court seeking perpetual

Injunction. An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specifc acts.

Honsble Supreme Court in “Sopan Sukhdeo Sable Vs Assistant

Charity Commissioner (23-01-2004), reported in A.I.R 2004 S.C 1801” has held that__ “[15] There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.”

Honsble Supreme Court in “Balkrishna Dattatreya Galande Vs

Balkrishna Rambharose Gupta and Another (06-02-2019), A.I.R 2019

S.C 933” has held that__ “[9]. ……………. The burden of proof lies upon the frst respondent- plaintiff to prove that he was in actual and physical possession of the property on the date of suit………..”.

VII-ADJ, OGL, A.S.23 of 2014 Page No.6/13 [10]. The plaintiff pleaded in the plaint that Kondaiah [grand father of the plaintiff] and his brother Chinnabbi are brothers, as per the Decree of the suit in O.S.No.14 of1968 fled by the said Chinnabbi, the schedule property fell to the share of plaintiffss father, but in oral partition, the schedule property fell to his share during the oral partition between him and his brother.

The pleadings of the plaintiff are clear that, he took distinct pleas in the plaint. Firstly, he pleaded that the schedule property fell to the share of his fatherss family, but in oral partition.

It itself is an indication that the schedule property was not allotted to the father of the plaintiff, individually, even as per the decree referred by the plaintiff in the suit, the reason is the boundaries as pleaded by the plaintiff in the plaint are not tallying with the boundaries as shown in Ex.B20 – Decree with the schedule in OS.No.14 of 1968

dated: 27-07-1974 and the boundaries are as follows:-

House to the extent of 6 gadies with a thatched house of 2 gadies in it, in Konijedu village with the boundaries:-

East : House of Mandapati Raghavulu

South : Wall of the cattle shed of Mandapati Subaiah

West : Bazaar

North : Bazaar for the uses of plaintiff and defendants.

When the plaintiff in O.S.No.14 of 1968 pleaded in the plaint that item

No.2 of schedule – C property is only to the extent of 6 gadies, claiming more extent [8 gadies] thorugh the suit fled in the year 2007 is totally incorrect.

One, may takes a plea that there was more extent, now he is claiming lesser extent as some extent might have merged in the road.

Admittedly, there are passage and main road on North and West to the property. In this context, the claim of the plaintiff is not based on either possession or title to the total extent claimed in the suit.

VII-ADJ, OGL, A.S.23 of 2014 Page No.7/13 [11]. The Defendant in Page No.2 of his written statement pleaded and for proper appreciation of evidence, the relevant pleading is extracted hereunder_ “….. 2nd defendant fled written statement which was adopted by defendants 1, 2, 3 & 5. In support of their pleading 2nd defendant, the senior paternal uncle of the plaintiff has categorically admitted in his evidence as DW.1 that the present suit schedule property fell to the share of Chinnabbi i.e., father of this defendant and he is in possession and enjoyment of the same.

Now, the plaintiff is estopped to contend that the plaint schedule property is his exclusive of property and he has been in possession and enjoyment of the same”.

a). The Plaintiff as PW.1 fled affidavit towards his examination in-chief, stepped into the witness box stated to that of his plea in the plaint and that Exs. A.1 & A.2 are the Legal notice got issued by the defendant;

Ex.A.3 is the reply notice to Ex.A2; Exs. A.4 & A.7 are certifcates issued by Panchayat Secretary, Gram Panchayat; Ex.A.5 is House tax demand notice and Ex.A.6 is rough sketch prepared by Mandal

Surveyor.

b). PW.2 an independent witness by name A.Krishna said in his affidavit feld for his examination in-chief that the schedule property is ancestral property of the plaintiff.

He deposed in his cross-examination that he came to know about the site through the elders.

The testimony of PW.2 appears as vague and artifcial, as he himself admitted that he came to know about the property through villagers, therefore, he has no personal knowledge as to who is in possession and enjoyment of the property as owner of it.

c). Another witness R.Seetha Ramaiah as PW.3 also stated that the defendants have no right in the schedule property and deposed in his

VII-ADJ, OGL, A.S.23 of 2014 Page No.8/13 cross-examination that he does not know what is the extent of the suit schedule site, therefore, the testimony of PW.3 pales into insignifcance.

d). The defendant also fled affidavit towards his examination in-chief, stepped into the witness box and stated as DW.1 to that of his contention in the written statement and about the Exs. B1 to B20.

Exs. B1, B2 & B20 are certifed copies of Decree with schedule, written statement of the 2nd defendant and Judgment in O.S.No.14 of 1968 and deposed in his cross-examination that item No.2 of C-schedule property in O.S.No.14 of 1968 is the schedule property herein, but the extent during 1969 was ‘6 gadiess only.

It is not the case of the either of the parties that another ‘2 gadiess site was purchased by them or their ancestors.

[12]. The defendant got fled the chief-affidavit of a witness by name

Mandapati Raghavulu son of Yallamanda to be examined as DW.2, but in the affidavit, the said Raghavulu neither affixed thumb mark nor signed in it, the thumb mark is affixed is the mark of Yallamanda.

The thumb mark appears smudged, therefore, his evidence carry no weight.

In fact, it is not the dispute by either of the parties regarding thumb mark, but under section 73 of Indian Evidence Act, the court is empowered to scrutinize the evidence, whenever there is dispute. It is true, the court cannot act as an expert.

e). The Panchayat Secretary of Konijedu by name G.V.Rangaiah as

DW.3 deposed that he has issued Ex.A.4. When coming to cross- examination, he stated that, as per Exs. A.4 and B.14 those are issued by V.V.N.Satyanarayana, Panchayat Secretary. The testimony of DW.3 is totally incorrect, as per Ex.A.4 it was issued by Panchayat Secretary

V.V.N.Satyanaraya, but not by DW.3 herein.

VII-ADJ, OGL, A.S.23 of 2014 Page No.9/13

f). The then Mandal Surveyor, Tangutur Mandal by name

K.Kakkeswara Rao deposed that, he measured the property and mentioned the same in Ex.A.6 and deposed in his cross-examination that as per Ex.A6 – Schedule property is plot No.3, but there is no proof to prove it and as per the records, the property stands in the name of

Ponugumati Sujatha [wife of the plaintiff].

The evidence of DW.4 – Official witness disproved the case set up by the plaintiff. As per the plaint, schedule property is his ancestral property, therefore, it is to be recorded in panchayat records either in the name of him, his father or grand father or his brother, if the case set up by him true and correct that the property fell to the share of his father, subsequently to fell to his brother and in oral partition, it fell to his share.

[13]. Learned Judge of the trial court gave fnding that some documents fled by the defendant didnst bind the plaintiff.

It appears that the trial court placed burden of proof to some extent on the defendant, but it is impermissible.

Honsble Supreme Court in “ Union of India & others Vs Vasavi Co-

op Housing Society Limited and others (07-01-2004), reported in A.I.R 2014 S.C 937” has held that__ “[12] It is trite law that, in a suit for declaration o f title, burden always lies on the plaintiff to make out and establish a clear ca s e for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.”

Therefore, the plaintiff has to prove his case by adducing reliable and cogent evidence and should not be permitted to take weakness in the case of the defendant.

VII-ADJ, OGL, A.S.23 of 2014 Page No.10/13 [14]. The Plaintiff – PW.1 deposed in his cross-examination that the schedule property and other properties are the ancestral properties of

Chinna Kondaiah and Chinnabbi.

Admittedly, both the parties are relying on Exs. B.1 & B.20, the said suit was fled for partition, it appears that the schedule property, if it as part and parcel of item No.2 of schedule-C, was in joint and constructive possession of the parties of the suit. The plaintiff has not proved his case that the schedule property was allotted to his fatherss (Branch).

The plaintiff as PW.1 admitted in his cross-examination, for proper appreciation of evidence, the said evidence portion is extracted hereunder_ “……My father acquired suit site through his father, but there is no documentary proof to show the same”.

PW.1 deposed further in his cross-examination, that this defendant raised objection regarding the schedule property for the frst time about fve (5) years back.

Ex.A1 is the legal notice got issued by the defendant to the plaintiff, claiming peaceful possession and enjoyment of the schedule property, this document shows that as on the date of Ex.A1 i.e., on 25- 11-2003, the defendant claimed possession as well as title to the property, but the plaintiff herein has not issued any reply notice and became silent for about four (4) years, this defendant again issued

Ex.A2 on 12-04-2007 informing the plaintiff, not to interfere with the possession, later, i.e., almost all four (4) years of Ex.A1,he gave Ex.A3 –

Reply notice to [Ex.A2]. The circumstances depicts that the title of the plaintiff is denied through Ex.A1 in November, 2003 itself, but after receiving Ex.A3, the plaintiff simply fled this suit, as if, he is in possession and enjoyment of the property.

VII-ADJ, OGL, A.S.23 of 2014 Page No.11/13

The Honsble Supreme Court in “Ananthula Sudhakar Vs P.Buchi

Reddy (25-03-2008), reported in A.I.R 2008 S.C 2033” has held that__ “[12] To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. W here the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the fnding on possession. But in cases where de-jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a fnding thereon, it will not be possible to decide the issue of possession.

(c) But a fnding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specifc, or implied as noticed in

Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a fnding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.

VII-ADJ, OGL, A.S.23 of 2014 Page No.12/13

But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

In the case on hand also, the total claim of the plaintiff is based on Exs.

A4 to A7, but DW.3 is not the person, who issued it Exs. A4 & A5 are relating to the house property stands in the name of Chinna Venkaiah;

Ex.A6 is not the authenticated extract from the Field Measurement

Book and Ex.A6 doesnst contain the signature of the M.R.O and the office seal, Ex.A7 stands in the name of Ponugumati Sujatha, but this document does not reveal the assessment number or door number of the property allegedly exhibited in the schedule property, the evidence of PW.1 are safe to discard the plaint.

Considering all the facts and circumstances of the case, this court came to conclusion that the reasons assigned by the trial court holding that the plaintiff is in possession and enjoyment of the property are not based on sound, legal principles, the plaintiff is not in possession and enjoyment of the schedule property as on the date of fling of the suit and he is not entitled for the relief on injunction. The points 1 & 2 are answered, holding that the decree and judgment passed by the trial court and fndings thereon are not factually and legally sustainable and it is necessary to set aside the decree and judgment passed by the trial court.

[15]. In the result, the Appeal fled by the Defendant/Appellant is allowed, setting aside the Decree and Judgment passed by the trial

VII-ADJ, OGL, A.S.23 of 2014 Page No.13/13 court [Ist Additional Junior Civil Judgess Court, Ongole in O.S.No.626 of 2007 dated: 10-03-2014], consequently, the suit fled by the plaintiff is dismissed.

Both the parties shall bear their respective costs throughout.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open court, on this the 16th day of September,

2019.

Sd/-.S.Ramesh,

VII Additional District Judge, Ongole.

Copy to:

1. The 1st Addl. Junior Civil Judge, Ongole.

2. Spare [for record purpose].

// True copy //

Chief Administrative Officer,

VII-Addl. District Court, Ongole.

VII-ADJ, OGL, A.S.23 of 2014 Page No.1/13

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE

PRAKASAM DISTRICT AT ONGOLE

Present: Sri S.Ramesh, VII Additional District Judge, Prakasam District at Ongole.

Monday, the sixteenth (16th) day of September, 2019

APPEAL SUIT No.23 of 2014

====================

Between :

Ponugumati Srimannarayana, s/o.Chinnabbi, age 65 years, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Appellant,

A N D

Ponugumati Srinivasa Rao, s/o.Venkaiah, age 49 years, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Respondent.

// ON APPEAL FILED AGAINST THE DECREE AND JUDGMENT OF THE 1st ADDITIONAL JUNIOR CIVIL JUDGE'S COURT, ONGOLE, PRAKASAM DISTRICT, Dated 10-03-2014 in O.S.No.626 of 2007 //

Between :

Ponugumati Srinivasa Rao, s/o.Venkaiah, age 42 years, Cultivation, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Plaintiff.

A N D

Ponugumati Srimannarayana, s/o.Chinnabbi, age 58 years, Cultivation, R/o.Konijedu, Tangutur Mandal, Prakasam District. ……Defendant.

@ @ @ @ The above numbered matter coming before me for fnal hearing on 26-08-2019, in the presence of Sri Bandaru Lakshmi Narayana Rao- Advocate for Appellant and of Sri Panguluri Govindaiah- Advocate for the Respondent, the matter having stood over for consideration till this day and the court delivered the following :

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

============== The Defendant in the Original Suit [O.S] No.626 of 2007 on the fle of the 1st Additional Junior Civil Judgess Court, Ongole [hereinafter refers to as the ‘trial courts], has preferred this Appeal Suit [A.S].

VII-ADJ, OGL, A.S.23 of 2014 Page No.2/13 [1].The present Appeal has been fled under section 96 and Order

XLI, Rules 1 & 2 of the Civil Procedure Code (for brevity ‘C.P.Cs).

Appellant is the Defendant and Respondent is Plaintiff in the said suit.

For convenient disposal of this Appeal, in order to avoid any confusion, I would refer the parties to the Appeal as per their litigative status and ranking before the trial Court in the said O.S.

[2].The factual background as will appear from the Judgment of the trial Court need to be highlighted and is re-produced hereunder_

CLAIM OF THE PLAINTIFF_

(i).During the family partition [oral], the vacant site of ‘8s gadies, with Assessment No.801 of Konijedu [hereinfater refers to as the “schedule property”] being bounded by__

East : Ponugumati China Venkata Narasimham,

West : Raja bazar (veedhi),

North : Passgage,

South : Ponugumati Subbarao & Mandapati Srinivasarao; fell to the share of the Plaintiffss father, later in the oral partition between this Plaintiff and his brother, the schedule property fell to the share of the Plaintiff and since then he has been in possession and enjoyment of the same.

(ii). The Defendant got issued Exhibit [Ex.] A.1- Legal Notice dated 25- 11-2003, on receiving it, the plaintiff gave reply. The Defendant again got issued Ex.A.2- Legal Notice dated 12-04-2007 and this Plaintiff gave

Ex.A.3- Reply notice dated 05-05-2007.

(iii).As the Defendant, without right or interest in and over the property tried to interfere with the schedule property, the Plaintiff was constrained to fle suit, seeking the relief of Perpetual Injunction.

VII-ADJ, OGL, A.S.23 of 2014 Page No.3/13 [3].CONTENTION OF THE DEFENDANT__

(i).Father of the Plaintiff [by name Chinnabbi] fled suit as O.S.14 of 1968 before the Senior Civil Judgess Court, Ongole, it was dismissed in respect of all Items in the schedule therein except Item No.3 of schedule ‘Bs property.

(ii).Out of the 6 Defendants [in the said suit], the 2nd Defendant [D.2] who is senior paternal uncle of the Plaintiff, alone has fled the written statement which was adoped by the Defendants 1 to 3 & 5.

(iii)D.2 as D.W.1 admitted in his evidence [in the said suit] that the present suit schedule property fell to the share of said Chinnabbi, who is in possession of the same, therefore, it is not open to the Plaintiff who is son of the deceased 4th Defendant [D.4], since there was no pleading and evidence on his behalf, thus the suit is not maintainable.

[4]. Learned Judge of the trial court had framed/ settled three Issues [mentioned hereunder] for trial_

1. Whether the Plaintiff is in possession and enjoyment over the suit schedule property by virtue of oral family partition ?

2. Whether the Plaintiff is entitled to the relief of Permanent

Injuncation, as prayed for ?

3. To what relief ?

The trial court has recorded the oral and documentary evidence viz.,

P.W.ss 1 to 3, Exhibits [Ex.ss] A.1 to A.7 and D.W.ss 1 to 4; Ex.ss B.1 to

B.20 on behalf of the Plaintiff and Defendant respectively.

Learned Judge of the trial court, considering the oral and documentary evidence on record, after hearing arguments, had decreed the suit with cots, by granting perpetual injunction restraining the

Defendant from interfering with the possession of the Plaintiff in and over the schedule property.

VII-ADJ, OGL, A.S.23 of 2014 Page No.4/13 [5].Feeling aggrieved by the fndings in the Decree and Judgment passed against him, the Defendant has preferred this Appeal, under the following__

GROUNDS OF APPEAL (material points) in brief__

(i). The decree and Judgment passed by the trial court is contrary to law, weight of evidence, probabilities of the suit ;

(ii). the trial court didnst appreciate the evidence adduced by the parties properly with regard to earlier litigation ;

(iii). the trial court didnst appreciate Ex.A.7 which was issued by

Panchayat Secretary, as the office seal etc., are missing in it ;

(iv). as per Ex.A.6, the schedule property is to the extent of Ac 0-02 1/2 cents equivialent to 15 gadies, it was issued by the Mandal Surveyor,

Tangutur relating to S.No.196/P stands in the name of Punumati

Sujatha– wife of the Respondent, the document is nonest in the eye of law ;

(v). the trial court failed to see the Judgment in O.S.No.20 of 1968 fled by the 6th Defendant [D.6] in the said suit [for maintenance] against the said P.Chinnabbi, 27th Item of the plaint schedule is that of the suit in O.S.No.14 of 1968 ;

(vi). the trial court didnst appreciate Ex.B.11 which shows that the property is 9 gadies in total ;

(vii). the trial court didnst consider the evidence of D.W.3, Ex.ss A.4 and

B.14 ;

(viii). as per Ex.A.5- House Tax receipts, one Rama Kamaiahss name is mentioned over and above Executive Officer, but it stands in the name of Punugumati China Venkaiah ;

Hence the Appeal.

[6].Entire case record (material papers of the suit) relating to the

Appellant is called for the purpose of disposal of this Appeal according to law.

[7]. No additional evidence is adduced in this Appeal by either of the parties to the proceedings.

VII-ADJ, OGL, A.S.23 of 2014 Page No.5/13 [8].Heard arguments of learned counsel for the Appellant and the

Respondent.

[9].Now the points for my determination are_

1. Whether the Decree and Judgment passed by the ‘trial courts is factually and legally sustainable ?

2. Is it necessary to interfere with the fndings of the trial court with regard to answers and fndings on the Issues ?

The main suit is fled before the trial court seeking perpetual

Injunction. An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specifc acts.

Honsble Supreme Court in “Sopan Sukhdeo Sable Vs Assistant

Charity Commissioner (23-01-2004), reported in A.I.R 2004 S.C 1801” has held that__ “[15] There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.”

Honsble Supreme Court in “Balkrishna Dattatreya Galande Vs

Balkrishna Rambharose Gupta and Another (06-02-2019), A.I.R 2019

S.C 933” has held that__ “[9]. ……………. The burden of proof lies upon the frst respondent- plaintiff to prove that he was in actual and physical possession of the property on the date of suit………..”.

VII-ADJ, OGL, A.S.23 of 2014 Page No.6/13 [10]. The plaintiff pleaded in the plaint that Kondaiah [grand father of the plaintiff] and his brother Chinnabbi are brothers, as per the Decree of the suit in O.S.No.14 of1968 fled by the said Chinnabbi, the schedule property fell to the share of plaintiffss father, but in oral partition, the schedule property fell to his share during the oral partition between him and his brother.

The pleadings of the plaintiff are clear that, he took distinct pleas in the plaint. Firstly, he pleaded that the schedule property fell to the share of his fatherss family, but in oral partition.

It itself is an indication that the schedule property was not allotted to the father of the plaintiff, individually, even as per the decree referred by the plaintiff in the suit, the reason is the boundaries as pleaded by the plaintiff in the plaint are not tallying with the boundaries as shown in Ex.B20 – Decree with the schedule in OS.No.14 of 1968

dated: 27-07-1974 and the boundaries are as follows:-

House to the extent of 6 gadies with a thatched house of 2 gadies in it, in Konijedu village with the boundaries:-

East : House of Mandapati Raghavulu

South : Wall of the cattle shed of Mandapati Subaiah

West : Bazaar

North : Bazaar for the uses of plaintiff and defendants.

When the plaintiff in O.S.No.14 of 1968 pleaded in the plaint that item

No.2 of schedule – C property is only to the extent of 6 gadies, claiming more extent [8 gadies] thorugh the suit fled in the year 2007 is totally incorrect.

One, may takes a plea that there was more extent, now he is claiming lesser extent as some extent might have merged in the road.

Admittedly, there are passage and main road on North and West to the property. In this context, the claim of the plaintiff is not based on either possession or title to the total extent claimed in the suit.

VII-ADJ, OGL, A.S.23 of 2014 Page No.7/13 [11]. The Defendant in Page No.2 of his written statement pleaded and for proper appreciation of evidence, the relevant pleading is extracted hereunder_ “….. 2nd defendant fled written statement which was adopted by defendants 1, 2, 3 & 5. In support of their pleading 2nd defendant, the senior paternal uncle of the plaintiff has categorically admitted in his evidence as DW.1 that the present suit schedule property fell to the share of Chinnabbi i.e., father of this defendant and he is in possession and enjoyment of the same.

Now, the plaintiff is estopped to contend that the plaint schedule property is his exclusive of property and he has been in possession and enjoyment of the same”.

a). The Plaintiff as PW.1 fled affidavit towards his examination in-chief, stepped into the witness box stated to that of his plea in the plaint and that Exs. A.1 & A.2 are the Legal notice got issued by the defendant;

Ex.A.3 is the reply notice to Ex.A2; Exs. A.4 & A.7 are certifcates issued by Panchayat Secretary, Gram Panchayat; Ex.A.5 is House tax demand notice and Ex.A.6 is rough sketch prepared by Mandal

Surveyor.

b). PW.2 an independent witness by name A.Krishna said in his affidavit feld for his examination in-chief that the schedule property is ancestral property of the plaintiff.

He deposed in his cross-examination that he came to know about the site through the elders.

The testimony of PW.2 appears as vague and artifcial, as he himself admitted that he came to know about the property through villagers, therefore, he has no personal knowledge as to who is in possession and enjoyment of the property as owner of it.

c). Another witness R.Seetha Ramaiah as PW.3 also stated that the defendants have no right in the schedule property and deposed in his

VII-ADJ, OGL, A.S.23 of 2014 Page No.8/13 cross-examination that he does not know what is the extent of the suit schedule site, therefore, the testimony of PW.3 pales into insignifcance.

d). The defendant also fled affidavit towards his examination in-chief, stepped into the witness box and stated as DW.1 to that of his contention in the written statement and about the Exs. B1 to B20.

Exs. B1, B2 & B20 are certifed copies of Decree with schedule, written statement of the 2nd defendant and Judgment in O.S.No.14 of 1968 and deposed in his cross-examination that item No.2 of C-schedule property in O.S.No.14 of 1968 is the schedule property herein, but the extent during 1969 was ‘6 gadiess only.

It is not the case of the either of the parties that another ‘2 gadiess site was purchased by them or their ancestors.

[12]. The defendant got fled the chief-affidavit of a witness by name

Mandapati Raghavulu son of Yallamanda to be examined as DW.2, but in the affidavit, the said Raghavulu neither affixed thumb mark nor signed in it, the thumb mark is affixed is the mark of Yallamanda.

The thumb mark appears smudged, therefore, his evidence carry no weight.

In fact, it is not the dispute by either of the parties regarding thumb mark, but under section 73 of Indian Evidence Act, the court is empowered to scrutinize the evidence, whenever there is dispute. It is true, the court cannot act as an expert.

e). The Panchayat Secretary of Konijedu by name G.V.Rangaiah as

DW.3 deposed that he has issued Ex.A.4. When coming to cross- examination, he stated that, as per Exs. A.4 and B.14 those are issued by V.V.N.Satyanarayana, Panchayat Secretary. The testimony of DW.3 is totally incorrect, as per Ex.A.4 it was issued by Panchayat Secretary

V.V.N.Satyanaraya, but not by DW.3 herein.

VII-ADJ, OGL, A.S.23 of 2014 Page No.9/13

f). The then Mandal Surveyor, Tangutur Mandal by name

K.Kakkeswara Rao deposed that, he measured the property and mentioned the same in Ex.A.6 and deposed in his cross-examination that as per Ex.A6 – Schedule property is plot No.3, but there is no proof to prove it and as per the records, the property stands in the name of

Ponugumati Sujatha [wife of the plaintiff].

The evidence of DW.4 – Official witness disproved the case set up by the plaintiff. As per the plaint, schedule property is his ancestral property, therefore, it is to be recorded in panchayat records either in the name of him, his father or grand father or his brother, if the case set up by him true and correct that the property fell to the share of his father, subsequently to fell to his brother and in oral partition, it fell to his share.

[13]. Learned Judge of the trial court gave fnding that some documents fled by the defendant didnst bind the plaintiff.

It appears that the trial court placed burden of proof to some extent on the defendant, but it is impermissible.

Honsble Supreme Court in “ Union of India & others Vs Vasavi Co-

op Housing Society Limited and others (07-01-2004), reported in A.I.R 2014 S.C 937” has held that__ “[12] It is trite law that, in a suit for declaration o f title, burden always lies on the plaintiff to make out and establish a clear ca s e for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.”

Therefore, the plaintiff has to prove his case by adducing reliable and cogent evidence and should not be permitted to take weakness in the case of the defendant.

VII-ADJ, OGL, A.S.23 of 2014 Page No.10/13 [14]. The Plaintiff – PW.1 deposed in his cross-examination that the schedule property and other properties are the ancestral properties of

Chinna Kondaiah and Chinnabbi.

Admittedly, both the parties are relying on Exs. B.1 & B.20, the said suit was fled for partition, it appears that the schedule property, if it as part and parcel of item No.2 of schedule-C, was in joint and constructive possession of the parties of the suit. The plaintiff has not proved his case that the schedule property was allotted to his fatherss (Branch).

The plaintiff as PW.1 admitted in his cross-examination, for proper appreciation of evidence, the said evidence portion is extracted hereunder_ “……My father acquired suit site through his father, but there is no documentary proof to show the same”.

PW.1 deposed further in his cross-examination, that this defendant raised objection regarding the schedule property for the frst time about fve (5) years back.

Ex.A1 is the legal notice got issued by the defendant to the plaintiff, claiming peaceful possession and enjoyment of the schedule property, this document shows that as on the date of Ex.A1 i.e., on 25- 11-2003, the defendant claimed possession as well as title to the property, but the plaintiff herein has not issued any reply notice and became silent for about four (4) years, this defendant again issued

Ex.A2 on 12-04-2007 informing the plaintiff, not to interfere with the possession, later, i.e., almost all four (4) years of Ex.A1,he gave Ex.A3 –

Reply notice to [Ex.A2]. The circumstances depicts that the title of the plaintiff is denied through Ex.A1 in November, 2003 itself, but after receiving Ex.A3, the plaintiff simply fled this suit, as if, he is in possession and enjoyment of the property.

VII-ADJ, OGL, A.S.23 of 2014 Page No.11/13

The Honsble Supreme Court in “Ananthula Sudhakar Vs P.Buchi

Reddy (25-03-2008), reported in A.I.R 2008 S.C 2033” has held that__ “[12] To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. W here the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the fnding on possession. But in cases where de-jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a fnding thereon, it will not be possible to decide the issue of possession.

(c) But a fnding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specifc, or implied as noticed in

Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a fnding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.

VII-ADJ, OGL, A.S.23 of 2014 Page No.12/13

But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

In the case on hand also, the total claim of the plaintiff is based on Exs.

A4 to A7, but DW.3 is not the person, who issued it Exs. A4 & A5 are relating to the house property stands in the name of Chinna Venkaiah;

Ex.A6 is not the authenticated extract from the Field Measurement

Book and Ex.A6 doesnst contain the signature of the M.R.O and the office seal, Ex.A7 stands in the name of Ponugumati Sujatha, but this document does not reveal the assessment number or door number of the property allegedly exhibited in the schedule property, the evidence of PW.1 are safe to discard the plaint.

Considering all the facts and circumstances of the case, this court came to conclusion that the reasons assigned by the trial court holding that the plaintiff is in possession and enjoyment of the property are not based on sound, legal principles, the plaintiff is not in possession and enjoyment of the schedule property as on the date of fling of the suit and he is not entitled for the relief on injunction. The points 1 & 2 are answered, holding that the decree and judgment passed by the trial court and fndings thereon are not factually and legally sustainable and it is necessary to set aside the decree and judgment passed by the trial court.

[15]. In the result, the Appeal fled by the Defendant/Appellant is allowed, setting aside the Decree and Judgment passed by the trial

VII-ADJ, OGL, A.S.23 of 2014 Page No.13/13 court [Ist Additional Junior Civil Judgess Court, Ongole in O.S.No.626 of 2007 dated: 10-03-2014], consequently, the suit fled by the plaintiff is dismissed.

Both the parties shall bear their respective costs throughout.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open court, on this the 16th day of September,

2019.

Sd/-.S.Ramesh,

VII Additional District Judge, Ongole.

Copy to:

1. The 1st Addl. Junior Civil Judge, Ongole.

2. Spare [for record purpose].

// True copy //

Chief Administrative Officer,

VII-Addl. District Court, Ongole.