Sri Shaik Ibrahim Sharief

1 ORIGINAL SUIT No.50/2009 Fair

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE CUM JUDICIAL

MAGISTRATE OF FIRST CLASS : YELLAMANCHILI

Present: Sri. Shaik Ibrahim Sharief,

Principal Junior Civil Judge cum

Judicial Magistrate of First Class, Yellamanchili.

Thursday, this the 31 st day of December, 2020

ORIGINAL SUIT No.50/2009

Between:

Kolagani Rajeswari, w/o late Apparao, Hindu, aged 39 yrs, r/o Pedaramabadrapuram village, Payakaraopeta mandal, Visakhapatnam District.

…Plaintif

And

1. The General Manager, South Central Railway, Rail Nilayam, Secunderabad.

2. The Divisional Railway Manager (personal), Divisional ofce, South Central Railway, Vijayawada.

3. Kanaka Durga @ Anusha, c/o Naras Raju, D.No.29-09-59-A, Madhura Nagar, Vijayawada.

4. Ajay Kiran, s/o late Apparao, Hindu, aged about 6 yrs, being minor represented by mother and guardian 3rd defendant Kanaka Durga @ Anusha, r/o D.No.29-09-59-A, Madhura Nagar, Vijayawada.

5. Kolagani Surya Kantham, w/o Late Appala Naidu, Hindu, aged about 65 yrs, house wife, back side of Railway quarters, Yellamanchili, Visakhapatnam District.

(4th defendant is added as per orders in I.A.534/09 dt.25.07.2011) (5th defendant is added as per orders in I.A.153/10 dt.25.07.2011)

...Defendants

This suit coming on 22.12.2020 for fnal hearing before me in the presence of Sri Y.Dasubabu, Advocate for the plaintif and of Smt.S.V.Lakshmi, Advocate for the defendant Nos.1 and 2, Sri.T.Satyanarayana, Advocate for the defendant Nos.3 and 4 and the same having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This suit is fled for declaration that the plaintif is the legally wedded wife of late Kolagani Apparao and that her marriage was subsisting till the death of Kolagani Apparao and for consequent relief that the 3rd defendant 2 ORIGINAL SUIT No.50/2009 Fair has no right to claim any benefts. Consequent on the death of Kolagani

Apparao from the defendants 1 and 2 and for costs.

2.The brief averments of the plaint are that the plaintif is the legally wedded wife of late Kolagani Apparao. The marriage between them took place at Pedaramabadrapuram village in Payakaraopeta mandal on 30.04.1986 as per their caste customs. At the time of marriage Apparao was an employee in South Central Railway as Junior Clerk at Rajahmundry. As such they lived together at Rajahmundry. Later, Apparao was transferred to

Visakhapatnam, as such he shifted family to Yellamanchili and they lived for about 2 years at Yellamanchili again Kolagani Apparao was transferred to

Vijayawada in the month of January, 1999. As such they shifted family to

Vijayawada.

3.As the matter stood thus, Kolagani Apparao developed illicit intimacy with the 3rd defendant as the plaintif did not conceive. The plaintif protested the illegal afairs of Apparao with 3rd defendant. At the instigation of 3rd defendant Apparao ill-treated and caused bodily injured to the plaintif and he proclaimed that he will marry 3rd defendant after divorcing the plaintif. Unable to bare ill-treatment the plaintif came to her parents house. Subsequently, Kolagani Apparao, the 3rd defendant, 5th defendant with the active support of his brother Kameswararao and his sister

Senapathi Kumari insist the plaintif to give divorce to Kolagani Apparao.

The parents of plaintif and other village elders chastised the 3rd defendant and the husband of the plaintif.

4.The said Kolagani Apparao proclaimed that he will fle a petition for divorce and he will marry the 3rd defendant. Thereafter, the plaintif gave a report to SHO, Payakaraopeta. The police registered a case and the said case was ended in acquittal. Thereafter, Kolagani Apparao fled petition for divorce against the plaintif before the Hon’ble Family Court at 3 ORIGINAL SUIT No.50/2009 Fair

Vijayawada in O.P.219/2006 and the same was transferred to the Hon’ble

Senior Civil Judge Court at Yellamanchili at the instance of plaintif. After

appearance of parties before the court Kolagani Apparao died intestate on 15.02.2007.

5.After the death of Kolagani Apparao plaintif approached the 2nd defendant for settlements of claims. The 2nd defendant sent a letter in the month of June, 2007 informing the plaintif that the 3rd defendant made rival claim as wife of Kolagani Apparao. On that the 2nd defendant directed the plaintif to obtain a declaratory decree from competent court regarding status of the plaintif.

6.In fact, Kolagani Apparao already fled O.P.219/2006 on the fle of Hon’ble Family Court at Vijayawada against the plaintif for dissolution of his marriage with the plaintif. In the said petition the plaintif contested the matter. Later, the plaintif fled transfer CMP.247/2006 before the Hon’ble

High Court of Andhra Pradesh for transfer of the said O.P to the Hon’ble

Senior Civil Judge Court at Yellamanchili. After receipt of the fle from Hon’ble

Family Court Vijayawada the Hon’ble Senior Civil Judge Court at Yellamanchili renumbered the O.P as H.M.O.P.41/2006 and issued notices to both parties.

As per the said notice the plaintif appeared as respondent before the

Hon’ble Senior Civil Judge Court at Yellamanchili. Thereafter, on 06.07.2007

the said petition was dismissed since Kolagani Apparao died and due to non representation on his behalf.

7.The report of the plaintif against Kolagani Apparao and others registered as Cr.No.74/04 of Payakaraopeta for the alleged ofence under

Section 498-A IPC and later numbered as CC.238/2005 on the fle of

Additional Judicial First Class Magistrate at Yellamanchili.

4 ORIGINAL SUIT No.50/2009 Fair

8.The plaintif and Kolagani Apparao belongs to Hindu community and they are governed by the provisions of Hindu Marriage Act 1956. The marriage between the husband and wife will be subsisting until their marriage is legally dissolved. The marriage between plaintif and Kolagani

Apparao was subsisting by the date of death of Kolagani Apparao. Even if

Kolagani Apparao marries 3rd defendant without the dissolution of marriage with the plaintif it is a void marriage. The void marriage is not having validity in the eye of law. Kolagani Apparao never changed the name of plaintif as his wife in his service record, Railway pass, Pension record and other records.

9.The funeral expenses of Kolagani Apparao were paid to the plaintif by the revenue authorities as they recognizeed her as his wife. There is no any objection or claim by 3rd defendant for payment of funeral expenses to the defendant. The alleged claim by 3rd defendant for the death benefts of Kolagani Apparao is only to get wrongful gain and to get wrongful loss to the plaintif.

10.In CC.238/2005 on the fle of Additional Judicial First Magistrate

Court at Yellamanchili the 3rd defendant cross examined the plaintif by stating that 3rd defendant has no relationship with late Kolagani Apparao. In the said case Kolagani Apparao is fgured as A1 and 3rd defendant is fgured as A5. Thus, the 3rd defendant is admitting that she has no relationship with

Kolagani Aparao. Hence, the suit.

11.The 1st defendant fled memo adopting written statement of 2nd defendant. The 2nd defendant fled written statement by contending that late Kolagani Apparao is an employee of their organizeation and he expired on 15.02.2007 while working as ofce superintendent. They have received the claim from Smt.K.Rajeswari on 15.03.2007 for the death benefts of

Kolagani Apparao in the status of wife. They have received another claim 5 ORIGINAL SUIT No.50/2009 Fair from Smt.K.Anusha @ Smt.Kanakadurga on 21.02.2007 in the status of wife.

As there are rival claims the administration conducted investigation through

Welfare Inspector, who investigated the case and reported that

Smt.K.Rajeswari @ Nagaratnam is residing with her mother due to disputes with her husband, Kum.K.S.S.Sravani living with Smt.Rajeswari is not the daughter of the deceased but the daughter of brother of the deceased. The deceased Apparao applied for divorce with Smt.Rajeswari before Hon’ble

Court of Senior Civil Judge, Yellamanchili but the divorce was not granted due to the death of the petitioner.

12.The Welfare Ofcer also reported that there is a counter claim from Smt.K.Kanaka Durga @ Anusha resident of Vijayawada with her son

Ajay Kiran aged about 4 years for payment of the death benefts of the deceased on the status of wife by producing birth certifcate of the son.

Therefore, the administration is not aware of the divorce petition fled by the deceased as the administration is not a party to it. Since there are rival claims, both the claimants were asked to approach the competent court of law and obtain declaratory decree.

13.As per the report submitted by the Welfare Inspector, the Ex-

Employee had declared Smt.K.Rajeswari as wife and Kum.K.S.S.Sravani is daughter during the year 2004 and thereafter, he declared “Self” only in the family declaration for Pass and PTOs.

14.The funeral expenses paid in death case will be recovered from the death benefts paid subsequently, from legitimate legal heir. In view of the rival claim the defendant is only to decide the legal heirs and hence directed claimants to approach the competent court of law for declaratory decree.

6 ORIGINAL SUIT No.50/2009 Fair

15.The 3rd defendant fled written statement and the same was adopted by the 4th defendant. The 3rd defendant interalia denying the averments of the plaint contended that that Kolagani Apparao proposed for marriage with the defendant in the year 2001. The marriage was held on 02.07.2001 at JESUS CHRIST PRAYER FELLOSHIP CHRUCH in Vijayawada. The defendant has no knowledge whether the plaintif married Kolagani

Apparao. Kolagani Apparao did not inform at any point of time whether he married the plaintif prior to the marriage of the defendant.

16.The defendant lived with Kolagani Apparao and out of wedlock she blessed a son on 07.07.2003 and his name is Ajay Kiran. The defendant came to know that Apparao allegedly married the plaintif, only after fling criminal case against the defendant and others in C.C.No.238/2005 on the fle of Additional Judicial First Class Magistrate Court at Yellamanchili. During pendency of the case Apparao died on 15.12.2007. The defendant bonafedly married Apparao and they used to live together till his death. The marriage of defendant with Apparao is subsisting. Kolagani Apparao died intestate as such herself and her son are only legal heirs to late Kolagani

Apparao. The plaintif is not having any right to claim the death benefts.

The defendant never admits that she has no relationship with Kolagani

Apparao. The defendant and her son are having right to get pension as they are legal heirs of Kolagani Apparao.

17.The 5th defendant fled written statement by admitting the relationship of Kolagani Apparao, his employment and his relationship. She contended that from the beginning the plaintif went on harassing and ill- treated Kolagani Apparao several ways as such he went on getting more and more vexed in life. The plaintif never treated the defendant as mother- in-law or Appala Naidu as father-in-law. The plaintif foisted the case against the defendant, her elder son Kameswararao and daughter Senapathi 7 ORIGINAL SUIT No.50/2009 Fair

Kumari. The plaintif made irrelevant allegation in this suit for the purpose of prejudicing the mind of the court. There is no possibility of fling divorce petition by Kolagani Apparao against the plaintif. The defendant is not aware of fling of divorce case by Kolagani Apparao and subsequently, transferred to Hon’ble Senior Civil Judge Court at Yellamanchili.

18.Being mother of Kolagani Apparao the defendant being a one of legal heir as Hindu and governed by Hindu Succession Act 1956. The defendant is not disputing that the plaintif and her husband belongs to

Hindu religion under Hindu Law, the marriage between husband and wife will be subsisting until it is legally dissolved.

19.The plaintif has to fle appropriate proceedings for obtaining succession certifcate for her share, if any in the death benefts of Kolagani

Apparao, Under Section 34 of Specifc Relief Act no court shall make any declaration as to status or right of any legal character of another person.

The plaintif has to seek for the relief of mere declaration of title. Without prejudice to her contention if at all the suit is decreed the same shall not be prejudice or exclude the share to which she is lawfully entitled from out of her son death benefts. Therefore, I requested the court to dismiss the suit with costs.

20.In this suit 4th defendant was impleded as per the orders in

I.A.534/2009 dated 25.07.2011. The 5th defendant was impleded as per the orders in I.A.153/2010 dated 25.10.2011.

21.The defendants 1 and 2 fled Additional written statement by contending that there is a rival claim from Smt.Rajeswari and

Smt.K.Kanakadurga @ Anusha on the status of wives claiming for death benefts. Since the claim is rival in nature both of them had been asked to 8 ORIGINAL SUIT No.50/2009 Fair get declaratory decree from competent court of law by impleading all necessary parties including Railway administration.

22.As per pera No.70 (5) of Railway Service Pension Rules 1993 the wife or wives including Judicially separated wife or wives in the case of male

Railway servant comes in the defnition of family. In the present case a claim from 2 persons claiming as status of legally wedded wife will have to be decided by competent court of law. Hence, the mother of deceased will not came under the preview of family when the wife of wives are available.

23.As per Rule 71 of Railway Service Pension Rules 1993, the matter will be considered only when no other family member are available and subject to fulfllment of certain conditions. In the present case there is a claim for wives as such the claim of mother of deceased is not tenable for payment of death benefts and she is not eligible to claim the death benefts of Kolagani Apparao in the status of mother. The Railway administration is no way concerned for the remaining averments made in the amended plaint.

24.The defendant No.3 fled additional written statement and the same is adopted by the 4th defendant who is minor. The 3rd defendant is acting as guardian to him. The defendants 3 and 4 are only persons to get death benefts of Kolagani Apparao. Even though the 5th defendant is natural mother she can not claim death benefts. The written statement already fled by the 3rd defendant may by read as part the parcel of the

additional written statement.

25.Basing on the above pleadings the following issues are settled for trial.

9 ORIGINAL SUIT No.50/2009 Fair (1)“Whether the plaintif is entitled to decree declaring that she is the legally wedded wife of late Kolagani Apparao, if so, her marriage is subsisting till the date of her husband” ?

(2) “Whether the plaintif is entitled for consequential relief against the 3rd defendant as prayed for” ?

(3)To what relief ?

26.At the time of arguments the counsel for the 3rd defendant submitted the following additional issues to be decided as additional issues:

(1) “Whether the 4th defendant K.Ajay Kumar is having any right to claim any benefts consequent on the death of Kolagani Apparao” ?

(2) “Whether the suit is bad for non-joinder of legal heirs of 5th defendant” ?

27.The counsel for the 3rd defendant submitted that the additional issues have to be decided basing on the material available on record.

28.During the course of trial on behalf of the plaintif PWs1 to PW3 are examined and Ex.A1 to A16 are marked. On behalf of defendant DW1 to

DW4 are examined and Ex.B1 to B6 and X1 are marked.

29.Heard the arguments of learned counsel for the plaintif as well as learned counsel for the defendant. The counsel for defendant No.3 and 4 besides advancing oral arguments submitted written arguments. During the pendency of the suit the 5th defendant died no steps were taken.

30.Issue No.1 & 2: “Whether the plaintif is entitled to decree declaring that she is the legally wedded wife of late Kolagani Apparao if so her marriage is subsisting till the death of her husband”?

10 ORIGINAL SUIT No.50/2009 Fair “Whether the plaintif is entitled for consequential relief against the 3rd defendant as prayed for”?

It is the contention of the plaintif that her marriage with

Kolagani Apparao was performed on 30.04.1986 as per their caste custom and after the marriage they lived together as wife and husband at

Rajahmundry since late Apparao was an employee in South Central Railway.

Later the said Apparao transferred to Visakhapatnam as such he shifted family to Yellamanchili thereafter, again he was transferred to Rajahmundry and thereafter, to Vijayawada and they lived as wife and husband at

Vijayawada. During there stay at Vijayawada late Apparao had illicit intimacy with 3rd defendant and used to ill-treat her by stating that he will marry the 3rd defendant after divorcing her.

31.It is the further contention of the plaintif that unable to bear the harassment she went to her parents house at Pedaramabadrapuram. The said late Apparao fled divorce O.P.219/2006 before Hon’ble Family Court at

Vijayawada for dissolution of marriage. Subsequently, the matter was transferred to the Hon’ble Senior Civil Judge Court, Yellamanchili and renumbered as H.M.O.P.41/06 and during the subsisting of the proceeding late Apparao died as such she is the legally wedded wife of Kolagani

Apparao till his death.

32.It is the contention of the 3rd defendant that Kolagani Apparao married her on 02.07.2001 at “JESUS CHRIST PRAYER FELLOWSHIP CHURCH” at Vijayawada. The said Kolagani Apparao did not inform her at any point of time that he married the plaintif prior to the marriage of the defendant. She lived happily with Apparao and out of wedlock she gave birth to the 4th defendant on 07.07.2003. She came to know Apparao alleged marriage with plaintif only after fling criminal case against the defendant and others in

C.C.No.238/2005 on the fle of Additional Judicial First Class Magistrate Court 11 ORIGINAL SUIT No.50/2009 Fair at Yellamanchili. The defendant bonafdely married Apparao on 02.07.2001 and till his death he used to live with the defendant.

33.In view of the rival contentions of plaintif and the 3rd defendant now the burden lies on the plaintif to prove that she is the legally wedded wife of Kolagani Apparao and that her marriage was in subsisting till the death of Kolagani Apparao.

34.The plaintif examined herself as PW1. The chief examination afdavit of PW1 is the replica of the contents of the plaint averments. In her cross examination by defendants 3 and 4, PW1 stated that no marriage was performed between Kolagani Apparao and 3rd defendant. She denied the suggestion that out of wedlock between 3rd defendant and Apparao the 4th (defendant) born. She admitted that 3rd defendant and Kolagani Apparao have an illegal contact and harassed her. She denied the suggestion that

Kolagani Apparao not fled divorce O.P and that she created the same.

35.In her cross examination by D1 and D2 PW1 admitted that the 3rd defendant also made a claim to defendants 1 and 2 that she is the wife of

Kolagani Apparao. She admitted that the Welfare Inspector has conducted enquiry after the death of Kolagani Apparao to as certain the legally wedded wife of Apparao. She further submitted that the Welfare Inspector, referred her as wife and K.S.S.Sravani as daughter but not natural daughter of Apparao and that no adoption deed was executed by elder brother of Apparao. D4 and D5 have also claimed the death benefts of

Kolagani Apparao. PW1 categorically stated that herself and Kolagani

Apparao have been living separately since 2004.

36.In her cross examination by 5th defendant PW1 stated that she fled O.S.12/2011 on the fle of Hon’ble Senior Civil Judge Court, Yellamanchili for partition.

12 ORIGINAL SUIT No.50/2009 Fair

37.The plaintif examined PW2 who is the cousin sister of plaintif.

In her chief examination afdavit PW2 stated that the marriage of plaintif with Apparao is an arranged marriage with the consent of family members of both sides. The marriage was held 31 years ago. The marriage was performed by Priest by concluding seven steps and tying Tali. In her cross examination by defendants 3 and 4 PW2 stated that she does not know that

Kolagani Apparao married 3rd defendant. She denied that since the marriage was not performed she had not mentioned the time of marriage in the chief afdavit.

38.The plaintif examined PW3 a resident of Pedaramabadrapuram village. In his cross examination by D3 and D4 he stated that the plaintif’s father is brother by courtesy to him. He denied the suggest that he did not attend the marriage of Apparao and plaintif.

39.The defendants 1 and 2 examined their Senior Clerk as DW1. In his chief examination afdavit DW1 stated that Kolagani Apparao was an employee of South Central Railway and expired on 15.02.2007. As per the family particulars Kolagani Apparao had declared that Smt.K.Rajeswari, aged about 36 years as wife and Kum.K.S.S.Sravani, aged about 14 years as daughter in the year 2004 and later he declared (self) in the family declaration. In his cross examination by the plaintif he stated that he is deposing basing on the ofce record. He fled his chief afdavit on instructions of ofcers, as per interim report Ex.B3 the plaintif is wife of deceased Kolagani Apparao. As per Ex.B2 application for pass and PTOs, the plaintif is wife of deceased Apparao.

40.In his cross examination by 3rd defendant he stated that the 3rd defendant fled a representation claiming the death benefts of Kolagani

Apparao as wife. He admitted that the Railway Authorities directed the 13 ORIGINAL SUIT No.50/2009 Fair plaintif and 3rd defendant to get a declaration from the competent civil court as wife of deceased Kolagani Apparao.

41.The 3rd defendant examined herself as DW2. The chief examination afdavit of DW2 is replica of the contents of written statement.

In his cross examination by the defendants 1 and 2, DW2 stated that deceased Kolagani Apparao referred plaintif as his wife in the family particulars submitted to the department. DW2 categorically admitted that the Welfare Inspector of defendants 1 and 2 enquired about the status of wife, as plaintif and herself claimed the death benefts of the Kolagani

Apparao. She stated that she does not know that the Welfare Inspector found that the Kolagani Apparao fled a divorce petition against the plaintif and that he died during the pendency of the divorce petition. DW2 further stated that she has not fled a suit for declaration that she is the wife of

Kolagani Apparao.

42.In her cross examination by the plaintif DW2 stated that she belongs to Yadava community. Kolagani Apparao belongs to Kapu community. Her father worked as Peon in Railway department and she resided at her father house during his life time and after his death till 2007 at Railway Quarters. She belongs to Hindu community. She further stated that Kolagani Apparao informed her when she questioned him about marriage with the plaintif and that he married the plaintif and divorce proceedings are pending. Kolagani Apparao informed her at the time of her marriage that he was already divorced. She admitted that as per Hindu customs there should be one wife. Ex.B4 does not disclose other persons since her marriage was performed in hurried manner. The CD was prepared after fling of the suit. She does not know her name was mutated in Railway records of her husband Kolagani Apparao. She was not present after the death of Apparao for a period of 11 days at Yellamanchili as the relatives of 14 ORIGINAL SUIT No.50/2009 Fair

Apparao are against to her. She categorically admitted that D5 fled statement stating that the plaintif is the wife of Kolagani Apparao. She came to know that there is no divorce between the plaintif and Kolagani

Apparao after fling of the suit.

43.She further stated that except birth certifcate no other document is fled in the Court with regard to her son.

44.The 3rd defendant examined one Murali Krishna a resident of

Vijayawada as DW3. In his evidence he stated that he was present at the time of marriage of Kolagani Apparao with Anusha (D3) at “JESUS CHRIST

PRAYER FELLOWSHIP CHURCH” at Vijayawada in the year 2001. In his cross examination by the plaintif PW3 stated that the 3rd defendant originally belongs to Hindu and converted into Christian. Kolagani Apparao belongs to

Hindu. He has no acquaintance with Kolagani Apparao prior to 2004. He did not receive any invitation for wedding 3rd defendant and Kolagani Apparao.

He admitted that there is no custom of tying Thali in the Christianity. He does not know the priest who performed marriage of 3rd defendant with

Kolagani Apparao. There are no photos with him at the time of marriage of 3rd defendant and Kolagani Apparao. He does not know about the marriage talks prior to the marriage of Kolagani Apparao with 3rd defendant.

45.In his cross examination by defendants 1 and 2, DW3 stated that he does not know the contents of the suit. He does not know that the

Railway Authorities has informed that Kolagani Apparao applied for divorce with his frst wife.

46.The 3rd defendant examined DW4 the administrative ofcer of

Life Insurance Corporation, Yellamanchili. In his chief examination DW4 stated that Kolagani Apparao took a policy on 04.06.2004. After death of policy holder the amount was given to one Puttamaraju Mahesh Babu as 15 ORIGINAL SUIT No.50/2009 Fair guardian. He denied the suggestion that Ex.X1 status of the policy was created after fling of the suit.

47.The plaintif fled Ex.A1 marriage invitation card which reveals the marriage of Venkata Naga Rajeswari with Kolagani Apparao was proposed to be held on 30.04.1986. Ex.A2 3 photographs along with negative which reveals the marriage ceremony. Ex.A3 is certifed copy of petition in O.P.No.219/2006 on the fle of Hon’ble Family Court at Vijayawada fled by Kolagani Apparao against K.Rajeswari for dissolution of the marriage under Section 13 (I) (a) of Hindu Marriage Act. Ex.A4 is the certifed copy of the order in HMOP.41/2006 which reveals that the petition is dismissed as the petitioner reportedly died. Ex.A5 is the certifed copy of the docket order

dated 06.07.2007 which reveals that the petition was dismissed. Ex.A7 is the

Special Pay sheet which reveals that the amount of Rs.8,000/- was paid towards funeral expenses of Kolagani Apparao. Ex.A8 is the ofce copy of the legal notice issued by the plaintif to the defendants 1 to 3 on 14.11.2008. Ex.A9 and A10 is postal acknowledgments. Ex.A11 is the unserved cover in the name of 3rd defendant. Ex.A12 is the death claim of

Life Insurance Corporation issued to the plaintif. Ex.A13 is the voter identity cart of the plaintif. Ex.A14 is certifed copy of the letter. Ex.A15 is certifed copy of the loan application of Kolagani Apparao in which the name of the spouse is shown as K.Rajeswari (plaintif). Ex.A16 is the certifed copy of the Judgment in O.S.No.1461/2010 on the fle of Hon’ble III

Additional Senior Civil Judge at Vijayawada.

48.The defendants fled Ex.B1 the attested copy of the letter issued to the plaintif by the Divisional ofce, Vijayawada. Ex.B2 is the attested copy of the declaration for pass and PTOs of Kolagani Apparao in which

K.Rajeswari is shown as wife, K.S.S.Sravani is shown as daughter. Ex.B3 is the attested copy of the interim report. Ex.B4 photos along with CD. Ex.B5 16 ORIGINAL SUIT No.50/2009 Fair is the certifed copy of FIR in Cr.No.74/2004. Ex.B6 is the birth certifcate of

K.Ajay Kiran. Ex.X1 is the letter issued by the Life Insurance Corporation in respect of the status of the policy No.673780910.

49.Admittedly, Kolagani Apparao worked in the South Central

Railway, Vijayawada and that he died on 15.02.2007. After the death of

Kolagani Apparao the Railway Authorities have paid an amount of Rs.8,000/- towards the funeral expenses of Apparao to the plaintif under Ex.A7 special pay sheet. Subsequently, the plaintif made a representation to the Railway authorities for payment of death benefts of Kolagani Apparao and the same was not granted by the Railway authorities on the ground that the 3rd defendant also made rival claim for the death benefts of Apparao. The

Railway authorities directed the plaintif to obtain a declaration from the competent Court. As such the plaintif fled the present suit.

50.Since the suit is fled for declaration of legal status of the plaintif the burden lies on the plaintif to prove that she is the legally wedded wife of

Kolagani Apparao. Before going into the evidence of the plaintif it is appropriate to refer the material place by the railway authorities before the court since Kolagani Apparao died while working in the South Central

Railway. The defendants 1 and 2 have examined their employee as DW1.

DW1 produced Ex.B2 the declaration said to have been given by Apparao to the Railway authorities in the year 2004. As per the said declaration the plaintif is shown as wife and one Sravani is shown as daughter of Apparao.

According to the plaintif her marriage with Apparao was held on 30.04.1986. Hence, the declaration given under Ex.B2 in the year 2004 fortify the contention of the plaintif that she is the legally wedded wife of

Apparao.

51.The plaintif in her evidence admitted that there is no document to show that they have adopted Sravani. Admittedly the Railway authorities 17 ORIGINAL SUIT No.50/2009 Fair have conducted enquiry through the Welfare ofcer who submitted a note on 03.04.2007 by stating that Sravani is the daughter of the employee’s brother and at present she is living with her parents. No animosity is attributed to DW1 by the 3rd defendant. DW1 is an ofcial witness and he has produced the ofce record before the court. Therefore, the evidence of

DW1 can be taken into consideration.

52.Be that as it may, since the burden lies on the plaintif to prove her legal status the plaintif fled Ex.A1 marriage wedding card to show that the marriage was held in the year 1986. Ex.A2 photographs also reveals the marriage ceremony. However, the dispute alleged to have been arisen between plaintif and late Apparao when late Apparao along with 3rd defendant and others have subjected the plaintif to cruelty and as such the plaintif lodged a report under Ex.B5 which was registered as case in

Cr.No.74/2004. Ex.B2 declaration reveals that it was furnished by the deceased Apparao in the year 2004. According to the 3rd defendant her marriage with the Apparao was held on 02.07.2001. Except the testimony of the 3rd defendant as DW2 she did not produce any marriage certifcate or any document showing the proof of marriage of 3rd defendant with the

Apparao. The learned counsel for the 3rd defendant contended that as the plaintif herself stated in the FIR under Ex.B5 that Apparao married 3rd defendant he need not produce and material before the court. If really, the marriage was not held in between plaintif and Apparao he would not mentioned in the declaration that plaintif is his wife. On the other hand, if the deceased Apparao really married 3rd defendant in the year 2001 itself the same would have been mentioned by him the declaration form. But no such declaration is produced by the 3rd defendant.

53.Since, the marital disputes have arisen in between Apparao and plaintif due to his relationship with the 3rd defendant as such Apparao 18 ORIGINAL SUIT No.50/2009 Fair himself fled OP.219/2006 before the Hon’ble Family Court at Vijayawada and subsequently, it was transferred to the Hon’ble Senior Civil Judge Court at

Yellamanchili and the same was renumbered as HMOP.41/2006. During the subsistence of the proceedings of divorce petition fled the deceased

Apparao against the plaintif he died in the year 2007. The pendency of proceedings of HMOP is a conclusive proof to show that the marriage of plaintif with deceased Apparao was in subsistence till Apparao died on 15.12.2007. The marriage between the plaintif and Apparao was not dissolved. The plaintif fled Ex.A4 the certifed copy of order in HMOP 41/2006 which reveals that the petition is dismissed as the petitioner died.

54.The plaintif produced Ex.A14 loan agreement which reveals that

Apparao has obtained a loan from State Bank of Hyderabad and he mentioned his spouse name K.Rajewari (plaintif).

55.Ex.A16 is the certifed copy which reveals that the plaintif along with Kolagani Apparao jointly borrowed amount from Eligabethamma. On the other hand the 3rd defendant in her evidence categorically admitted that

Kolagani Apparao married her by stating that he is divorce. Admittedly no such decree of divorce is produced by the 3rd defendant to prove her contention. Therefore, the 3rd defendant failed to discharge her burden that she is the legally wedded wife of Kolagani Apparao. On the other hand, the plaintif by producing the marriage wedding card, certifed copy of HMOP petition and the certifed copy of the order in HMOP could able to establish that she is the legally wedded wife of Kolagani Apparao. Added to that the railway authorities have also produced their record under Ex.B2 and B3 to show that Kolagani Apparao furnished information that the plaintif is his wife.

56.The 3rd defendant fled written arguments and contended that as per the contention of the 5th defendant the plaintif has to fle SOP.

19 ORIGINAL SUIT No.50/2009 Fair

Admittedly, the 5th defendant who is the mother of Kolagani Apparao who voluntarily came on record died during the pendency of the case. No other legal heir came on record in the place of 5th defendant.

57.In the written arguments the 3rd defendant submitted that even though the marriage is 2nd marriage, she is also eligible to get pension and he relied upon a decision of Hon’ble Kolkota High Court in Union of India Vs

Sumanaghanti. The said decision is not applicable to the facts of the present case. Since the present suit is fled only for declaration by the plaintif and no proof is produced by the 3rd defendant to prove the marriage of 3rd defendant with Kolagani Apparao.

58.The 3rd defendant relied upon a decision of Hon’ble Apex court

Union of India Vs Tripathi and submitted that there is no bar to give pension to wife or wives and son in case of male employee in Railways. As already stated the 3rd defendant did not produce any concrete material to show the marriage of 3rd defendant with Kolagani Apparao. Hence the above decision is not applicable to the facts of the case.

59.In the light of above facts and circumstances it can be held that the plaintif is the legally wedded wife of deceased Kolagani Apparao and the marriage was in subsistence till his death. Consequently, the 3rd defendant is not entitled for any death benefts of Kolagani Apparao. Accordingly these issues are answered.

60.Additional issue No.1: “Whether the 4th defendant K.Ajay Kiran has any right to claim and benefts consequent on the death of Kolagani

Apparao” ?

The learned counsel for the 3rd defendant in the written arguments submitted that the court has to give a fnding on this issue. As already 20 ORIGINAL SUIT No.50/2009 Fair observed by this court in issues NO.1 and 2 that the 3rd defendant failed to produce any concrete material to show that the deceased Apparao married 3rd defendant during the subsistence of the marriage of the plaintif as such the 4th defendant can’t claim any benefts of Kolagani Apparao. Since, this scope of the suit is very limited to the extent of legal status of the plaintif and further more there is no counter claim by the 4th defendant. Accordingly, this issue is answered.

61.Additional Issue no.2: “Whether the suit is bad for non-joinder of legal heirs of 5th defendant”?

As already stated the 5th defendant herself came on record and she died. Neither the legal heirs of the 5th defendant, if any, nor the 3rd defendant brought any legal heirs on record. Furthermore as per the

Railway Service pension rules mother, brothers below the age of 18 years unmarried sisters, widow sisters including step sisters will come in the defnition of family. Except contending that the suit is bad for non-joinder of legal heirs of the 5th defendant the 3rd defendant did not state who are the other legal heirs of 5th defendant who will come under the defnition of family. Accordingly, this issue is answered.

62. Issue No.3: To what relief ?

In the result, the suit is decreed with costs declaring that the plaintif is the legally wedded wife of Kolagani Apparao and her marriage is subsisting till his death, consequently the 3rd defendant is not entitled for the death benefts of Kolagani Apparao from defendants 1 and 2.

Dictated by Personal Assistant on my dictation transcribed by him, Corrected

and pronounced by me in the open Court, this the 31st day of December, 2020.

Sd/-Shaik Ibrahim Sharief

Principal Junior Civil Judge cum

Judicial Magistrate of First Class,

Yellamanchili 21 ORIGINAL SUIT No.50/2009 Fair

APPENDIX OF EVIDENCE

For Plaintifs:

P.W.1: Kolagani Rajeswari P.W.2: Voodi Suryakantham P.W.3: Tadi Surimurthy

For Defendants:

D.W.1: P.Venkata Ramana D.W.2: Kolagani Anusha D.W.3: J.Murali Krishna D.W.4: N.Venkata Ramana

No. of Exhibits Marked on behalf of:

For Plaintif:

Ex.A1: is Marriage wedding card Ex.A2: is 3 positive photographs with nagetives Ex.A3: is Petition (cc) in OP.219/2006 Ex.A4: is CC of order in OP.41/06 Ex.A5: is cc of docket sheet in OS.219/2006 Ex.A6: is cc of docket sheet HMOP.41/06 Ex.A7: is Special Pay sheet Ex.A8: is oc of legal notice dt.14.11.2008 Ex.A9: is Served postal acknowledgment Ex.A10: is Served postal acknowledgment Ex.A11: is Unserved postal cover Ex.A12: is Death claim by PW1 Ex.A13: is voter identity card Ex.A14: is letter for loan dt.11.09.2012 Ex.A15: is loan agreement Ex.A16: is cc of judgment in OS.1461/2010

For Defendants:

Ex.B1: is the letter dated .06.2007 Ex.B2: is family application for pass Ex.B3: is Note of Divisional personal ofcer, dt.03.04.2007 Ex.B4: is 6 photos along with CD Ex.B5: is CC of FIR with report in Cr.No.74/04 of P.P Police Ex.B6: is Date of Birth certifcate of Kolagani Ajay Kiran

For X Series

Ex.X1: is status of LIC Policy bearing No.673780910 along with application

Sd/-Shaik Ibrahim Sharief

Principal Junior Civil Judge cum

Judicial Magistrate of First Class,

Yellamanchili

1 ORIGINAL SUIT No.185/2010 Fair

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE CUM JUDICIAL

MAGISTRATE OF FIRST CLASS : YELLAMANCHILI

Present: Sri. Shaik Ibrahim Sharief,

Principal Junior Civil Judge cum

Judicial Magistrate of First Class, Yellamanchili.

Thursday, this the 24 th day of December, 2020

ORIGINAL SUIT No.185/2010

Between:

1.Pericharla Venkata Ramana Raju, s/o Suryanarayana Raju, Hindu, aged 44 yrs, cultivation, r/o Srirampuram village, Payakaraopeta mandal, Visakhapatnam District.

2.Pericharla Veera Venkata Satyanarayana Raju, s/o Suryanarayana Raju, Hindu, aged 42 yrs, employee in HPCL, Visakhapatnam, r/o Sriharipuram, Visakhapatnam H/o Srirampuram village, Payakaraopeta mandal.

…Plaintiffs

And

Pulagala Raju, s/o Late Paparao, Hindu, aged about 35 yrs, cultivation, r/o V.Kotturu village, H/o Srirampuram village, payakaraopeta mandal, Visakahapatnam District.

...Defendant

This suit coming on 21.12.2020 for fnal hearing before me in the presence of Sri J.V.B.S.Sastry, Advocate for the plaintiffs and of Sri.L.V.Ramana Murthy , Advocate for the defendant and the same having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This suit is fled for grant of Permanent Injunction restraining the defendant and his men from ever interfering with the plaintiffss peaceful possession and enjoyment of the plaint schedule property and for costs.

2.The brief averments of the plaint are that the plaintiff Nos.1 and 2 are brothers. The 2nd plaintiff purchased the plaint schedule property and some other property nearer to the schedule property under registered sale deed dated 18.09.1998 from one Pallela Ganga Bhavani. Since, the date of purchase the 2nd plaintiff enjoying schedule property with absolute rights and possession. The 1st plaintiff, the father and mother of the 2nd plaintiff are 2 ORIGINAL SUIT No.185/2010 Fair also enjoying their lands behind the plaint schedule property. The 1st plaintiff attends for cultivation works since he was permitted by the 2nd plaintiff to use the schedule property for ingress and egress to reach his land. Thus, the schedule property is in exclusive use of the plaintiffs for transporting the yield derived from their properties. The plaintiffs also allowed some of the neighbouring land owners to use the schedule property. The 2nd plaintiff is also having two coconut trees on the schedule property.

3.The defendant is having land of an extent of Ac.0.43 cents assigned towards the western side of the schedule property. The defendant is making attempts to encroach the plaint schedule property from its western side and on one occasion the defendant tried to dig the schedule property for making a canal and tried to take the coconuts from the coconut trees existing on the schedule property. The plaintiffs have placed the dispute before village elders and they have advised the defendant to stop the high handed acts but the defendant did not follow their advice.

Therefore, the plaintiffs are constrained to fle the present suit.

4.The defendant fled written statement interalia denying the averments of the plaint and further contended that the total extent in survey No.105/3 of Srirampuram village is Ac.5.02 cents, the government allotted an extent of Ac.0.42 cents to Polavarapu Sathibabu, s/o Talupulu, an extent of Ac.0.42 cents to Bommisetti Gnana Prakash, s/o Adirao an extent of Ac.0.43 cents to Chittimurthy Veerabbai, s/o Marayys, an extent of

Ac.0.43 cents to Pulagala Raju, s/o Paparao (defendant) in the year 1994.

The land of the defendant is situated in survey No.105/3(A). The land of

Polavarapu Sathibabu an extent of Ac.0.08 cents only in survey No.105/3A and the remaining extent of Ac.0.34 cents is situated in survey No.105/3B or 105/3C. The land of Bommisetti Gnana Prakash to an extent of Ac.0.42 3 ORIGINAL SUIT No.185/2010 Fair cents is also situated in survey No.105/3 B or C. The revenue authorities have provided a cart track up to the land of Ac.0.08 cents of Polavarapu

Sathibabu from North to South by allotting Ac.0.03 cents for ingress and egress to the felds. Except the said way there is no other way to reach the felds of the defendant. The plaintiff intentionally shown the cart track as plaint schedule property with intent to grab the same.

5.The vendor of the plaintiff by name Ganga Bhavani has no land in survey No.105/3 A i.e., near to the defendants land. The ceiling of the lands of the plaintiffs vendor was effected in the year 1994. The 2nd plaintiff purchased the property in the year 1998. As on the date of said sale deed the vendor of the 2nd plaintiff has no such land mentioned in the schedule of the sale deed.

6.The plaintiff might have falsely, intentionally mentioned two items i.e., Ac.0.08 cents and Ac.0.35 cents in the schedule of the sale deed though there is no such land for their vendor. The plaintiffs might have intentionally mentioned to grab the Ac.0.03 cents of cart track. Either the plaintiff or their vendor Ganga Bhavani have no right, title and possession over the plaint schedule property. The documents fled by the plaintiffs are not related to the plaint schedule property. The plaintiffs have no any land adjacent to the defendantss land. The schedule mentioned Ac.0.08 cents is not in existence in survey No.105/ 3 C but it is a Government cart track way.

The rough sketch fled by the plaintiff, boundaries mentioned in the schedule are not correct. The boundaries mentioned in the sale deed dated 18.09.1998 are also not correct. Therefore requested the court to dismiss the suit with costs.

4 ORIGINAL SUIT No.185/2010 Fair

7.Basing on the above pleadings the following issues were settled for trial.

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

(2)To what relief ?

8.During the course of trial the plaintiff examined PW1 to PW3 and got marked Ex.A1 to A7. The defendant examined DWs1 to D w4 and got marked Ex.B1 to B5.

9.Heard the counsel for the plaintiff through Blue Jeans App. The counsel for the defendant submitted arguments in the open Court. Perused the evidence material on record.

10.Issue No.1: It is the contention of the plaintiffs that the 2nd plaintiff purchased the plaint schedule property from one Ganga Bhavani under a registered sale deed dated 18.09.1998 and since then, the 2nd plaintiff has been using the plaint schedule property exclusively and has permitted the some of other ryots in the vicinity to use the plaint schedule property for transporting the usufruct and the defendant has no any manner of right over the plaint schedule property. It is further contention of the plaintiffs that the defendant is western side boundary owner of the plaint schedule property. The feld map is not revealing the existence of the road. If really the plaint schedule property is a road, it would have been mentioned in Ex.B4 feld map. The defendant admitted in his evidence before the court that he has not fled the patta as such an adverse inference can be drawn against the defendant under section 114 (g) of the Indian evidence act. The rough sketch fled by the defendant has no sanctity at all and therefore, the plaintiff is entitled for injunction against the defendant.

5 ORIGINAL SUIT No.185/2010 Fair

11.It is the contention of the defendant that the plaint schedule property is different from the sale deed schedule property. The defendant was allotted Ac.0.43 cents of land by the Government under landless poor scheme in the year 1994. The plaintiff purchased property in the year 1998 from Ganga Bhavani who is the original owner of the land in the vicinity of the plaint schedule property whose lands were taken over by the government under land ceiling. Even during the course of enjoyment of the land by the Ganga Bhavani the cart track was in use. As such, the contention of the plaintiffs that the 2nd plaintiff purchased the plaint schedule property is not correct. The plaintiffs 1 and 2 have admitted about the contents of the rough plan fled by the defendant along with written statement. The western and southern boundaries of the plaint schedule property are not tallying with sale deed boundaries. Even according to the documents fled by the plaintiffs Ac.0.03 cents is shown as passage and that is not refected in the sale deed. The oral and documentary evidence has to be taken into consideration. The plaintiffs admitting that the government has allotted Ac.0.43 cents to the defendants. The plaintiffs have to prove their own case by standing on their own legs and they can not depend upon the witnesses of the defendantss case. Therefore, requested the court to dismiss the suit.

12.The 1st plaintiff is examined as PW1. The chief examination afdavit of the 1st plaintiff is the replica of the contents of the plaint averments. In his cross examination PW1 stated that one Chittumuri

Veerabbai was allotted Ac.0.43 cents and to the southern side of the

Veerabbai the defendant was allotted Ac.0.43 cents by the Government.

Towards southern side of the defendantss land the government allotted

Ac.0.08 cents to Polavarapu Sathibabu. He admitted that Ac.0.34 cents was 6 ORIGINAL SUIT No.185/2010 Fair allotted to Polavarapu Sathibabu, he further admitted that towards southern side of Ac.0.08 cents the land of Seetharamaraju is situated. He admitted the road existed towards northern side of the lands of the survey No.105/3.

Towards southern side of the land of Kakarlapudi Seetharamaraju a canal is in existence. He further admitted that the plaint schedule property is in survey No.105/3C. He admitted that the cart track is in existence towards the eastern side of the lands of Chittumuri Veerabbai, Kolagala Raju and

Polavarapu Sathibabu. The cart track is in existence up to the lands of

Kakarlapudi Seetharamaraju. The cart track is used only by himself and

Kakarlapudi Seetharamaraju but not others. The extent of cart track from the land of Chittimuri Veerabbai to Sathibabu is Ac.0.08 cents. The cart track is in existence since their vendors Ganga Bhavani. He fled the present suit for a declaration of his right and title over the cart track. He admitted that the government after taking the land from Ganga Bhavani under land ceiling gave the same to Chittumuri Veerabbai, defendant, Polavarapu Sathibabu,

Gnana Prakash and others.

13.The 2nd plaintiff examined himself as PW2. The chief examination afdavit of PW2 is on the same lines of the chief examination afdavit of

PW1. In his cross examination PW2 stated that the cart track width is 13 feet from Vura Kalava to Kakarlapudi Seetharamaraju land. He is claiming Ac.0.08 cents which is cart track. He admitted that towards western side of cart track claimed by him the land of Chittimuri Veerabbai, Kolagala Raju (defendant) and Polavarapu Sathibabu. He further stated that he is not claiming the remaining cart track from the land of Sathibabu to the land of

Seetharamaraju. Towards southern side of the cart track there is remaining cart track. He categorically stated that “the cart track is in existence at

the time of purchase of the schedule property from his vendor

7 ORIGINAL SUIT No.185/2010 Fair

Ganga Bhavani”. He further admitted that there is no mention as a boundary about the cart track in the sale deed. He admitted that himself,

Kakarlapudi Seetharamaraju and Nerella Venkata Ramanamma used the cart track to lift the usufruct with an understanding. There is no other alternative way except the cart track. He stated that he does not know whether the defendant, Polavarapu Sathi babu and Chittumuri Veerabbai using the cart track. He categorically stated that “the cart track is in existence at the time of joint property of his vendor Ganga Bhavani”. He further admitted that the sale deed dated 18.09.1998 the property is situated towards north of Panta Kalava. He admitted that the lands existence to the southern side of Panta Kalava is in survey No.105/3C. Towards western side of cart track the land of defendant which is having two coconut trees are in existence towards western side of cart track, thereafter, the land of the defendant situated.

14.The plaintiff examined the Ex-Sarpanch of Srirampuram as PW3.

In his chief examination afdavit PW3 stated that the schedule property is in exclusive use of plaintiffs for transporting yield. The plaintiffs have allowed the neighbouring land owners to use the schedule property at their request.

In his cross examination PW3 stated that he has no lands nearby plaint schedule property. At present there is cart track from the lands of one

Polavarapu Sathibabu to Chittumuri Veerabbai land from north to south.

There is no other way for all the farmers to take the usufruct of their land.

There is another way from west to east a cart track used by other farmers, but there is no revenue record to show that there is another cart track. “He

categorically stated that the patta land holders formed a cart track

like so the defendant, Chittumuri Veerabbai and Polavarapu Sathi

8 ORIGINAL SUIT No.185/2010 Fair

Babu formed a cart track” He admitted that towards western side of coconut trees there is a land of defendant. The suit is fled for cart track.

15.The defendant is examined himself as DW1. The chief examination afdavit of DW1 is the replica of the contents of the written statement. In his cross examination he stated the government given patta along with a way of Ac.0.03 cents. He has not fled any document to show that the Ac.0.03 cents land was given by the Government. He further stated that there are fve ryots cultivating the land in survey No.105/3. Towards north of his land one Chittumuri Veerabbai land is situated, thereafter, there is a road. He has no disputes with Chittumuri Veerabbai.

16.The defendant examined DW2. In his chief examination afdavit he stated that the plaintiffs have no right and title over the cart track way. In his cross examination he stated that he does not know the extent, survey number and other details of the land possessed by Ganga Bhavani. He denied the suggestion that the two coconut trees are situated in the schedule property belongs to 2nd defendant.

17.The defendant examined DW3 a resident of Srirampuram. In his cross examination DW3 stated that he does not know the documents stands in the name of plaintiff for the schedule property. He stated that the road was laid by the plaintiffs for ingress and egress.

18.The defendant examined DW4 another resident of Srirampuram.

In his cross examination he stated that he does not know how much land was available with Ganga Bhavani in the year 1998.

9 ORIGINAL SUIT No.185/2010 Fair

19.The plaintiff fled Ex.A1 a registered sale deed dated 23.03.1984 executed in favour of plaintiffs 1 and 2 in respect of Ac.0.72 cents in survey

No.105/3. Ex.A2 is the pattadar pass book in favour of 1st plaintiff. Ex.A3 is the carbon copy of cist receipt for the land in survey No.105/3C in favour of the 1st plaintiff. Ex.A4 is the copy of Adangal issued by VRO for the land in survey No.105/3C. Ex.A4 reveals that the 2nd plaintiff is the pattadar for an extent of Ac.0.79 cents another extent of Ac.0.33 cents in survey

No.105/3C. Ex.A5 is registered sale deed dated 18.09.1998 executed in favour of the 2nd plaintiff by Ganga Bhavani. Ex.A6 is the pattadar pass book which reveals that the 2nd plaintiff is the pattadar for Ac.0.43 cents in survey

No.105/3C. The Sub-Registrar, Nakkapalli made an endorsement in pattadar pass book in respect of purchase of Ac.0.43 cents from Ganga Bhavani on 18.09.1998. Ex.A7 is the carbon copy of cist receipt for an extent of Ac.0.79 cents survey No.105/3C.

20.The defendant fled Ex.B1 photographes along with CD. Ex.B1 is the proceedings issued by the RDO, Narsipatnam which shows that the defendant was assigned Ac.0.43 cents in S.No.105/3. (Ex.B1 is marked for twice. One is photographs along with CD, another is proceeding of the RDO)

Ex.B2 is the pattadar pass book in respect of Ac.0.43 cents in survey

No.105/3 in favour of the defendant. Ex.B3 is the title deed pass book in favour of the defendant. Ex.B4 is the feld map of Srirampuram. Ex.B5 is the copy of list of benefciary obtained under right to information act.

21.The plaint schedule property is Ac.0.08 cents in survey No.105/3C of

Srirampuram panchayat. The plaint schedule is as follows:

East: Land of Nerella Venkata Ramana

South: Land of Kakarlapudi Sitharamaraju 10 ORIGINAL SUIT No.185/2010 Fair

West: Land of Pulagala Raju (defendant)

North: vura Kaluva.

22.According to the plaintiff the 2nd plaintiff purchased the property under a registered sale deed from one Pallela Ganga Bhavani who sold her excess land after the land that was taken away by the Government under ceiling. The 2nd plaintiff purchased two items of the property under Ex.A5 registered sale deed on 18.09.1998. The disputed property is 2nd item of

Ex.A5 sale deed. The 2nd item consists of Ac.0.08 cents bounded by east:

Nerella Venkata Ramana land, South: Kakarlapudi Sitharamaraju land, West:

the land that was given to the Government in ceiling, the land sold by

Thotakura Ramana, North: Panta Kalava.

23.In the plaint itself plaintiffs mentioned that the defendant is having land to an extent of Ac.0.43 cents assigned on the western side of the schedule property. The defendant fled Ex.B1, the proceedings of the

Revenue Divisional Ofcer, Narsipatnam which reveals that the land that was acquired by the Government from Pallela Ganga Bhavani in an extent of

Ac.18.17 cents was allotted to 33 persons on 17-09-1994. Thus, the defendant was allotted ac.0.43 cents in the year 1994.

24.The plaintiff purchased the schedule property from the same person i.e., Ganga Bhavani in the year 1998. Thus, the defendant was the person who has been enjoying his property even prior to the purchase of the property by the 2nd plaintiff from Ganga Bhavani. The 2nd plaintiff who was examined as PW2 in his evidence stated that the cart track road at a width of 13 feet in existence from Vura Kalava to Kakarlapudi Sitharama raju land.

He further admitted that the cart track is in existence at the time of purchase of the schedule property from his vendor Ganga Bhavani. He 11 ORIGINAL SUIT No.185/2010 Fair further admitted that there is no other way except the cart way to lift usufruct of the land. Even as per the rough plan fled by the plaintiffs their lands are shown downward and the land of the defendant is on the upward and the plaintiffs have to use the cart track that was being used by the defendant for lifting the usufructs from his felds. When such is the state of affairs, the contention of the plaintiffs that the plaint schedule property is exclusive cart track canst be believed at all. The plaintiffs categorically admitted that along with the defendant there are lands of Polavarapu Sathi

Babu, Chittimury Tatabbai, Kakarlapudi Sitharamaraju. PW1 in his evidence admitted that the cart track is in existence since his vendor Ganga Bhavani.

25.The plaint schedule property of ac.0.08 cents is in survey

No.105/3C. The plaintiff fled Ex.A4 Adangal which reveals that there is a passage in Ac.0.03 cents. The contents of Ex.A5 sale deed is not revealing that there is a passage of Ac.0.03 cents sold by Ganga Bhavani to the 2nd plaintiff. No where in the plaint the plaintiffs contended that the 2nd item is the cart track purchased by him from the Ganga Bhavani. Though the plaintiffs contended that they are using the schedule property exclusively for transporting the yield but the contents of the sale deed is not revealing that the 2nd plaintiff purchased Ac.0.08 cents of the property as cart track for his exclusive use. The own admission of the plaintiffs reveals that the cart track was in use even by the time the 2nd plaintiff purchased the property from

Ganga Bhavani. If really, it is the exclusive cart track of Ganga Bhavani, the same would have been refected in the registered sale deed. The revenue records reveals the passage is only Ac.0.03 cents. The plaintiff did not fle any link document to show that Ganga Bhavani used the plaint schedule property for exclusive use as cart track and that the same was sold to the 12 ORIGINAL SUIT No.185/2010 Fair 2nd plaintiff under a registered sale deed. There is no dispute that the 2nd plaintiff purchased property from Ganga Bhavani under Ex.A5 sale deed.

26.The present suit is fled for grant of equitable relief of injunction.

In order to grant equitable relief the plaintiff must approach the court with clean hands. The evidence of PW1 and PW2 coupled with A5 sale deed is not reveals that the plaint schedule property is exclusive cart track of the plaintiffs. Though the plaintiff examined PW3 the Ex-Sarpanch of the village his evidence reveals that the patta land owners formed a cart track like so, the defendant, Chittimury Veerabbai and Polavarapu Sathibabu formed a cart track. This itself reveals the cart track is used by the defendant and other land holders. If really the cart track belongs to the plaintiffs alone the plaintiff would have objected the defendant and other land owners at the time of forming cart track. Thus, it is clear that the cart track was formed even by the time the 2nd plaintiff purchased the property.

27.The cist receipt under Ex.A3 reveals that the cist was paid for

Ac.0.36 cents for survey No.105/3C for the fasli 1420. Ex.A7 cist receipt reveals that the cist was paid for the fasli 1420 to an extent of ac.0.79 cents in survey No.105/3C. Ex.A6 pattadar pass book reveals that the extent of

Ac.0.43 cents in survey No.105/3C. Ex.A1 sale deed and Ex.A2 pattadar pass book are no way helpful to the plaintiff as they are related to survey

No.105/3.

28. On the other hand the defendant as DW1 in his evidence stated that the government given patta along with passage in an extent of Ac.0.03 cents. A perusal of Ex. B-1 photographs reveals that there is a cart track.

There is no dispute that there is existence of cart track but when the 2nd plaintiff is exclusively claiming the cart track belongs to him the plaintiffs 13 ORIGINAL SUIT No.185/2010 Fair must have produce cogent and convincing evidence before the court. But except Ex.A5 registered sale deed there is no such document which reveals that the cart track is exclusively belongs to the plaintiff. Even the recitals of

Ex.A5 sale is not revealing that Ganga Bhavani sold the cart track under 2nd item of the sale deed.

29.When the plaintiffs are claiming exclusive rights over the cart track they must prove their right and title over the said cart track. Though, the present suit is fled for injunction simplicitor in view of the exclusive claim of the plaintiffs this court has to incidentally look into the title of the plaintiffs in respect of the cart track. A perusal of Ex.A5 registered sale deed reveals that the 2nd plaintiff purchased Ac.0.08 cents from his vendor Ganga

Bhavani. Even the said Ac.0.08 cents is not having any lineal measurements to show in which extent the Ac.0.08 cents is situated. However, PWs1 and 2 admitted in their evidence that the cart track is used even by the time of

Ganga Bhavani. If the evidence of PWs1 and 2 is taken into consideration

Ex.A5 sale deed recitals must contain that it is the exclusive cart track of

Ganga Bhavani and she sold the said cart track to the 2nd plaintiff under

Ex.A5. Except reciting that Ganga Bhavani sold Ac.0.08 cants there is no mention about the cart track. Thus, the recitals of Ex.A5 sale deed is not revealing the fow of title in respect of disputed cart track to the plaintiffs. In the absence of any such recitals though the 2nd defendant purchased Ac.0.08 cents under Ex.A5 it can not be said that it is a cart track used by Ganga

Bhavani and that the said Ganga Bhavani passed her fow of title in respect of disputed cart track to the 2nd plaintiff. Further, the adangal copy fled by the plaintiffs reveals that there is a passage of Ac.0.03 cents. Further more, the defendant was assigned land in the year 1994 but where as the 2nd defendant purchased property in the year 1998. In such circumstance the 14 ORIGINAL SUIT No.185/2010 Fair western boundary must be the defendant. But the recitals of Ex.A5 in respect of 2nd item is not revealing the name of the defendant as western boundary owner.

30. The evidence of PW1 and PW2 coupled with A5 sale deed is not reveals that the plaint schedule property is exclusive cart track of the plaintiffs. In the absence of such material the plaintiff is not entitled for equitable relief of injunction. Accordingly, this issue is answered against the plaintiffs.

32.Issue No.2: In the result, the suit is dismissed with costs.

Dictated by Personal Assistant on my dictation transcribed by him,

Corrected and pronounced by me in the open Court, this the 24th day of December, 2020.

Sd/-Shaik Ibrahim Sharief

Principal Junior Civil Judge cum

Judicial Magistrate of First Class,

Yellamanchili

APPENDIX OF EVIDENCE

For Plaintiffs:

P.W.1: Pericharla Venkata Ramana Raju P.W.2: Pericharla Veera Venkata Satyanarayana Raju P.W.3: Chinchalapu Suryanarayana

For Defendant:

D.W.1: Pulagala Raju D.W.2: Surampudi Apparao D.W.3: Thotakura Krishna D.W.4: Chittumuri Nookaraju

No. of Exhibits Marked on behalf of:

For Plaintiff:

Ex.A1: is Registered sale deed dt.23.03.1984 Ex.A2: is Pattadar pass bnook dt.31.07.1994 Ex.A3: is Carbon copy of tax receipt for the fasli 1420 in the name of PW1 dt.16.11.20210 Ex.A4: is No.3 adangal copy dt.16.11.2010 15 ORIGINAL SUIT No.185/2010 Fair

Ex.A5: is Regd. Sale deed dt.18.09.1998. Ex.A6: is Pattadar pass book dt.31.07.1994. Ex.A7: is carbon copy of tax receipt dt.16.11.2010.

For Defendants:

Ex.B1: is the four (4) photographs with CD. Ex.B1: is Proceedings issued by the RDO, Narsipatnam dt.17.09.1994. Ex.B2: is Pattadar pass book dt.14.08.2009 Ex.B3: is Title deed Pass Bnook dt.14.08.2009. Ex.B4: is FMB sketch of Srirampuram village. Ex.B5: is List of Benefciaries of land for an extent of Ac.18.17 cents.

Sd/-Shaik Ibrahim Sharief

Principal Junior Civil Judge cum

Judicial Magistrate of First Class,

Yellamanchili

1 ORIGINAL SUIT No.277/2019 Fair

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE CUM JUDICIAL

MAGISTRATE OF FIRST CLASS : YELLAMANCHILI

Present: Sri. Shaik Ibrahim Sharief,

Principal Junior Civil Judge cum

Judicial Magistrate of First Class, Yellamanchili.

Monday, this the 14thday of December, 2020

ORIGINAL SUIT No.277/2019 Between:

Addala Sivasri, w/o late Adala Ramayyadora, aged 26 yrs, r/o Kothuru village, Rambilli mandal, Visakhapatnam Dist. …Plaintif

And

1. Gatikina Danamma, w/o Late Apparao, Hindu, aged about 54 yrs, c/o Mylapalli Kasilakshmi, Dr.No.16-8-57, Tarakarama nagar, Dummulpeta, Kakinada (Town), E.G.Dist.

2. Garikina Srinivasarao @ Ramana, s/o late Apparao, Hindu, aged about 39 yrs, r/o at Kothapatnam village, Rambilli mandal, Visakhapatnam District.

3. Koda Manga, w/o Suribabu, Hindu, aged about 35 yrs, r/o at Vadanaraspuram village, Rambilli mandal, Visakhapatnam District.

4. Koyya Govindamma, w/o Nagaraju, Hindu, aged about 32 yrs, r/o at Revupolavaram village, S.Rayavaram mandal, Visakhapatnam District.

5. Mailapalli Kasi Lakshmi, w/o late Kasulu alias Vasu, Hindu, aged about 29 yrs, Dr.No.16-8-57, Tarakaram Nagar, Dumulupeta, Kakinada Town, E.G.Dist.

...Defendants

This suit coming on 08.12.2020 for fnal hearing before me in the presence of Sri S.A.N.Murthy, Advocate for the plaintif and remained defendants set ex parte and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This suit is fled for recovery of Rs.2,87,690/- being the Principal and interest and due on a promissory note dated 06.06.2017 said to have been executed by one Garikina Apparao and a second defendant in favour of the plaintif agreeing to repay the same with interest at 18% p.a. for

Rs.2,00,000/- and for costs.

2 ORIGINAL SUIT No.277/2019 Fair

2.The brief averments of the plaint are that the on 06.06.2017 the husband of the 1st defendant and father of defendants 2 to 5 by name

Garikina Apparao borrowed an amount of Rs.2,00,000/- from the plaintif along with the 2nd defendant to meet the family expenses agreeing to repay the same with interest at 18% p.a. In spite of several demands made by the plaintif neither the 2nd defendant nor Garikina Apparao discharged the debt. The said Garikina Apparao died leaving behind the defendants as his legal heirs. After the death of Garikina Apparao the plaintif demanded defendant to discharge debt but they did not pay any amount. Hence, the suit.

3.Though the summons was served on the defendant Nos.2 to 3.

They remained ex parte. Defendant Nos.1, 3 to 5 refused to receive summons. The service is held sufcient.

4.The plaintif fled his chief examination afdavit as PW1 and got marked Ex.A1 the original suit promissory note, Ex.A2 ofce copy of the legal notice, Ex.A3 is bunch of postal covers and acknowledgments. The plaintif reported no further evidence.

5.Heard the matter through Blue Jeans App. Perused the material on record.

6.Now point for consideration is:

1.“Whether the plaintif is entitled for recovery of suit amount from out of the estate of late Garikina Apparao lying in hands of the defendants and personally against the 2nd defendant ?”

2. To what relief ?

7.Point No.1:It is the contention of the plaintif got one Garikina

Apparao along with the 2nd defendant borrowed an amount of Rs.2,00,000/- on 06.06.2017 from the plaintif to meet their family expenses, agreeing to repay the same with interest at 18% p.a.

3 ORIGINAL SUIT No.277/2019 Fair

8.The chief examination afdavit of PW1 is the replica of the contents of plaint averments. A perusal of Ex.A1 promissory note reveals that one Garikina Apparao along with Garikina Srinivasarao jointly borrowed an amount of Rs.2,00,000/- from the plaintif. A perusal of Ex.A2 ofce copy of the registered notice reveals that the plaintif demanded the 2nd defendant along with the other legal heirs of Garikina Apparao for discharge of the debt due under Ex.A1 promissory note. Though the 2nd defendant personally received notice he remained exparte. The unchallenged testimony of PW1 coupled with Ex.A1 promissory note and Ex.A2 ofce copy of the registered registered notice reveals that the 2nd defendant along with

Garikina Apparao borrowed the amount and failed to discharge the same. In these circumstances the 2nd defendant personally and defendant Nos.1, 3 to 5 from out of the estate of Garikina Apparao have to discharge the suit promissory note debt. Accordingly this point is answered.

9.Point No.2: In the result, the suit is decreed with costs for

Rs.2,87,690/- with subsequent interest at 12% p.a from the date of the suit till the date of decree and thereafter, at 6% p.a. on Rs.2,00,000/-. The 2nd defendant is personally liable besides from out of the estate of Garikina

Apparao. The defendant Nos.1, 3 to 5 are liable to discharge the debt from out of the estate of Garikina Apparao lying in their hands.

Dictated by Personal Assistant on my dictation transcribed by him,

Corrected and pronounced by me in the open Court, this the 14th day of December, 2020

Sd/-Shaik Ibrahim Sharief

Principal Junior Civil Judge cum

Judicial Magistrate of First Class,

Yellamanchili

APPENDIX OF EVIDENCE

For Plaintif:

P.W.1: Addala Sivasri 4 ORIGINAL SUIT No.277/2019 Fair

For Defendants:

--None-- No. of Exhibits Marked on behalf of:

For Plaintif:

Ex.A1: is Original Promissory note dt.06.06.2017 Ex.A2: is Ofce copy of legal notice dt.07.10.2019 Ex.A3: is Original Bunch of postal covers 4 in number and also postal acknowledgment.

For Defendants:

-- Nil--

Sd/-Shaik Ibrahim Sharief

Principal Junior Civil Judge cum

Judicial Magistrate of First Class,

Yellamanchili

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :YELLAMANCHILLI-CUM-

JUDICIAL FIRST CLASS MAGISTRATE : YELLAMANCHILI.

Present: Sri Shaik Ibrahim Sharief,

Principal Junior Civil Judge, Yellamanchilli-cum-

Judicial First Class Magistrate, Yellamanchili.

Monday, this the 14th day of December, 2020.

O.S.No.146/2020

Between:

Sammetla Yarakayya, S/o Yallammadora, Hindu, aged 67 years, rice mill business, resident of Marripalem, Rambilli Mandal, Visakhapatnam District.

... Plaintif

And

The Dimili Primary Agriculture Co-Operative Society Limited, Dimili, represented by its President, situated at Dimili Village, Rambilli Mandal, Visakhapatnam District.

... Defendant

This suit coming on this day for final hearing before me in the presence of Sri V.Annapurnayya, Advocate for the plaintif and Sri Y.Dasubabu, Advocate for defendant and and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

This is a suit to grant permanent injunction restraining the defendant-society, their men and agents from interfering with plaintif's peaceful possession and enjoyment of the plaint schedule property, except by due process of law and for costs of the suit.

Matter called through Blue Jeans App. The counsel for the plaintif filed a memo in the G.R by stating that the matter is settled before elders.

Therefore, the suit is dismissed without costs and not pressed.

Pronounced by me in the open court, this the 14th day of December,

2020.

PRINCIPAL JUNIOR CIVIL JUDGE,

YELLAMANCHILI

-CUM-JUDICIAL FIRST CLASS MAGISTRATE,

YELLAMANCHILI

APPENDIX OF EVIDENCE

NIL

PJCJ/YLM-CUM- JFCM/YLM

Date of Presentation: 26.09.2020Date of filing: 08.10.2020

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :YELLAMANCHILLI-CUM-

JUDICIAL FIRST CLASS MAGISTRATE : YELLAMANCHILI.

Present: Sri Shaik Ibrahim Sharief,

Principal Junior Civil Judge, Yellamanchilli-cum-

Judicial First Class Magistrate, Yellamanchili.

Monday, this the 14th day of December, 2020.

O.S.No.146/2020

Between:

Sammetla Yarakayya, S/o Yallammadora, Hindu, aged 67 years, rice mill business, resident of Marripalem, Rambilli Mandal, Visakhapatnam District.

... Plaintif

And

The Dimili Primary Agriculture Co-Operative Society Limited, Dimili, represented by its President, situated at Dimili Village, Rambilli Mandal, Visakhapatnam District.

... Defendant

This is a suit to grant permanent injunction restraining the defendant- society, their men and agents from interfering with plaintif's peaceful possession and enjoyment of the plaint schedule property, except by due process of law and for costs of the suit.

Value of the suit for the purpose of Court fee and jurisdiction is notionally at

Rs.4,04,350/- and a Court Fee of Rs.6,526/- is paid thereon U/Sec.26 (c), Schedule-1,

Article I (b & c) of APCF & SV Act.

This suit coming on this day for final hearing before me in the presence of Sri V.Annapurnayya, Advocate for the plaintif and Sri Y.Dasubabu, Advocate for defendant and and having stood over for consideration till this day, this court delivered doth order and ; -2-

D E C R E E

1. that the suit be and the same is hereby dismissed as settled before elders and not pressed; and

2. that there be without costs.

A copy of plaint schedule is here to be attached.

Give under my hand and the seal of the court, this the 14th day of December, 2020.

PRINCIPAL JUNIOR CIVIL JUDGE,

YELLAMANCHILI

-CUM-JUDICIAL FIRST CLASS MAGISTRATE,

YELLAMANCHILI.

MEMORANDUM OF COSTS

No cost memo is filed on either side.

PJCJ/YLM-CUM- JFCM/YLM.

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :YELLAMANCHILLI-CUM-

JUDICIAL FIRST CLASS MAGISTRATE : YELLAMANCHILI.

Present: Sri Shaik Ibrahim Sharief,

Principal Junior Civil Judge, Yellamanchilli-cum-

Judicial First Class Magistrate, Yellamanchili.

Monday, this the 14th day of December, 2020.

O.S.No.10/2016

Between:

Nallala Naga Mani, W/o Venkata Ramana, Hindu, aged about 43 years, Housewife, R/o Peda Gummuluru Village, S.Rayavaram Mandal, Visakhapatnam District.

... Plaintif

And

Nallala Ganeswara Rao, S/o Satya Rao, Hindu, aged about 45 years, Business, R/o Godicharla Village, Nakkapalle Mandal, Visakhapatnam District.

... Defendant

This suit coming on this day for final hearing before me in the presence of Sri Dhuli Nookaraju, Advocate for the plaintif and Sri K.Lakshmi Narasimham, Advocate for defendant and and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

This is a suit to grant permanent injunction restraining the defendant and his men and servants from ever interfering with the peaceful possession and enjoyment of the plaintif in respect of plaint schedule property and for costs of the suit.

Matter called through Blue Jeans App. The counsel for the plaintif filed a memo not pressing the suit. The defendant received notice. The suit is dismissed as not pressed without costs.

Pronounced by me in the open court, this the 14th day of

December, 2020.

PRINCIPAL JUNIOR CIVIL JUDGE,

YELLAMANCHILI

-CUM-JUDICIAL FIRST CLASS MAGISTRATE,

YELLAMANCHILI

APPENDIX OF EVIDENCE

NIL

PJCJ/YLM-CUM- JFCM/YLM

Date of Presentation: 25.01.2016Date of filing: 08.02.2016

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :YELLAMANCHILLI-CUM-

JUDICIAL FIRST CLASS MAGISTRATE : YELLAMANCHILI.

Present: Sri Shaik Ibrahim Sharief,

Principal Junior Civil Judge, Yellamanchilli-cum-

Judicial First Class Magistrate, Yellamanchili.

Monday, this the 14th day of December, 2020.

O.S.No.10/2016

Between:

Nallala Naga Mani, W/o Venkata Ramana, Hindu, aged about 43 years, Housewife, R/o Peda Gummuluru Village, S.Rayavaram Mandal, Visakhapatnam District.

... Plaintif

And

Nallala Ganeswara Rao, S/o Satya Rao, Hindu, aged about 45 years, Business, R/o Godicharla Village, Nakkapalle Mandal, Visakhapatnam District.

... Defendant

This is a suit to grant permanent injunction restraining the defendant and his men and servants from ever interfering with the peaceful possession and enjoyment of the plaintif in respect of plaint schedule property and for costs of the suit.

Value of the suit for the purpose of Court fee and jurisdiction is Rs.30,000/- and a Court Fee of Rs.1,786/- is paid thereon U/Sec.26 (c), Schedule-1, Article I (b & c) of

APCF & SV Act.

This suit coming on this day for final hearing before me in the presence of Sri Dhuli Nookaraju, Advocate for the plaintif and Sri K.Lakshmi

Narasimham, Advocate for defendant and and having stood over for consideration till this day, this court delivered doth order and ; -2-

D E C R E E

1. that the suit be and the same is hereby dismissed as not pressed; and

2. that there be without costs.

A copy of plaint schedule is here to be attached.

Give under my hand and the seal of the court, this the 14th day of December, 2020.

PRINCIPAL JUNIOR CIVIL JUDGE,

YELLAMANCHILI

-CUM-JUDICIAL FIRST CLASS MAGISTRATE,

YELLAMANCHILI.

MEMORANDUM OF COSTS

No cost memo is filed on either side.

PJCJ/YLM-CUM- JFCM/YLM.